Legal Outline for Toy and Game Inventors

By James M. Kipling

 

Toy and Game Inventors' Forum

September 6, 7, 8, 2001

 

            By attending this Conference of the Toy and Game Inventors Forum, you have expressed your interest in being an Inventor.  If you turn your interest into action, you will quickly find that there is much more to the process than creating great product ideas.

            The Toy or Game Inventor faces a daunting task between the point of creating a potentially exciting and salable product concept, and actually collecting money as a result of that creation.  In addition to marketing the concept in a professional fashion that will attract the interest of Manufacturers, the Inventor must take steps to protect his or her ownership of the concept and, if a “sale” is made, negotiate favorable business terms, while both optimizing present profitability and fostering a long-term relationship with the Manufacturer.

The importance of relationships in this business cannot be overstated.  The final portion of this outline addresses the reasons and makes suggestions on the subject.

 

BACKGROUND

“Manufacturers” (which we will use to describe both Toy and Game manufacturers) must have a continuing flow of new product concepts in order to maintain a viable business.  Typically, Manufacturers introduce 40% or more new products in their lines each year.  The pressure on Manufacturers to continue to develop new concepts in this fast-moving business requires that they look outside their own personnel for a significant contribution to this stream of "newness".  Thus, the door is open at most Manufacturers to established or promising Inventors wishing to sell or license creative product concepts.

In fact, many Manufacturers have “wish lists” for product categories that they are willing to share with Inventors.  Acquiring such lists would help avoid wheel-spinning and enhance the perception of professionalism of the Inventor.

However, before you walk through the door to see the Manufacturer’s representatives, you must prepare yourself with a solid understanding of your rights and protections, as well as the documents you can expect to face.

 

Legal Protections Available

            Understanding the legal protections available for your concepts is a first step in grasping your relationship with Manufacturers.  What follows is a highly simplified overview focused on areas that can be expected to apply to Toys and Games.  It is intended to give an understanding of the terminology and broad view of the concepts, but should not, by any means, be considered exhaustive of the subject matter.

            Generally, the pertinent subject matter is what is broadly termed "Intellectual Property", that is, products of the creativity of the intellect.  Depending upon the nature of the fruit of that creativity and the forms in which it becomes tangible, one or more of the following list of legally recognized protections can apply:

            "Patents" in the United States can protect the structure or composition or operation of a device or product (i.e., "Utility Patents") or the non-utilitarian aesthetic elements of a product (i.e., "Design Patents").  Patent protection can be broad or narrow, depending on the “scope of the invention” that is, its advance beyond what has been done before.  Patent protection in the United States (for applications filed after June 8, 1995) can last up to twenty (20) years from the filing date.  Any manufacturer or seller or user of a product covered by a U.S. Patent can be an infringer even with no knowledge of the existence of the Patent or the party who owns it or that party’s product.

 

            "Copyrights" can protect the aesthetic (i.e., visual or audible artistic expression) or the textual expression of ideas, but not the ideas themselves.  Copyright protection does not extend to structures, compositions or the way mechanisms work, but is limited to the expression of "works of authorship".  In the U.S., for works created after December 31, 1977, the length of Copyright protection depends on whether the “author” is one or more individuals (life of the last-to-survive author plus 70 years) or a work is made “for hire” (95 years after publication or 120 years after creation, whichever is shorter) measured from the creation.

 

            "Trademarks" or "Trade Dress" protect elements which may be recognized as associated with the source of products or services – if not the precise identification of that source, then some indication that there is a specific source.  (For example, the public may not know who makes ReaLemon® juice, but will likely think that it's the same source as ReaLemon® pie filling.)  The visual appearance of a famous character (e.g., “Batman”) can have recognition to the point of deserving Trademark or Trade Dress protection, much as certain audible cues (e.g., the NBC chimes) may identify the source of a TV program.  Even color (e.g., pink for insulation material is a trademark of Owens Corning) can function as a trademark.  Trademark protection can last as long as the owner has not abandoned its use – that is, it can last forever.

 

            "Trade Secrets" are generally concepts or information not readily discernible from publicly available information, which the owner takes appropriate steps to protect, and which have value to the owner by virtue of its knowledge of them.  For example, the formula of Coca-Cola® has been a trade secret for decades because the Company has prevented its release and the product cannot be precisely analyzed for its ingredients and their proportions.  Similarly, secret processes for manufacturing publicly available products can be legally protected as long as the secret is maintained.  Once such a secret is divulged, however, the protection no longer applies.


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