I was contacted by someone on the handmade site I am on, via a message on that website, about the awareness ribbon magnets that I sell. (A wood shape of an awareness ribbon, painted in various colors for whichever cause). They sell a similar item, though with the differences of: theirs is between 12" and 18" high, mine are 2"; mine are refrigerator magnets, theirs are wall decorations. This seller has told me I must remove my items because I am bordering a "design patent", as they have a "design patent pending" that they say they will be approved for in 6 weeks (is it possible to know when and whether you will be approved in advance?). I have drafted a reply to them, and would like to make sure I am correct on my points legally. Please let me know.
Hi again,
Please forgive me for my skepticism, but if you would be so kind as to give me your application number so I may look up your pending patent on the USPTO website myself, that would be wonderful. First thing I'd like to reply to - you say in your recent answer to me that "decorative ribbons" were never used except by you, "except magnets". Mine *are* magnets. From what I understand, you are attempting to patent the shape (design) of the awareness ribbon, correct? To be completely honest with you, I'm not actually sure how you can patent the shape of an awareness ribbon, even cut from wood, when it has clearly been available for several years. From the USPTO website:
"In order for an invention to be patentable it must be new as defined in the patent law, which provides that an invention cannot be patented if: For one, Pat Catans craft store sells them - which is where I bought my first one that is on my own refrigerator - and I found them there back in April of this year, though I'm not sure how long they've been selling them. Another Etsy shop also sells them: http://www.etsy.com/view_listing.php?listing_id=21255113. The pink ribbon in particular has been in use since at least 1991. There are other websites that I could find, if you'd like, but I don't think that's necessary. Furthermore, it is illegal to claim you have a patent when you do not in fact have one yet - "patent pending" has no legal bearing whatsoever, and even if you were to be granted a patent, I would not be required to remove my items until you have your patent. Therefore I will not do so until such time as I receive official (i.e. not a conversation on Etsy) correspondence from your lawyer. I await your answer with your application number. I answered your previous question regarding this issue. I think it would be professionally irresponsible of me to approve or disapprove of any letter you propose to write to the other party. In fact, I think a "less is more" approach is better in this situation until you receive a cease and desist letter from the other party's attorney. Then, your attorney should respond. It would be very rare that an informal exchange of emails between you and the supposed rights holder would yeild a positive result in this type of situation, and in my opinion, it could make things worse.
Please retain an attorney to help you.
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