Don’t fidget, file! – Protect your inventions

Don’t fidget, file! – Protect your inventions
12 Feb 2018

It can easily be said that the year 2017 was wholly enveloped by the far-reaching fad of the fidget spinner.

In 2017, an explosive presence of the fidget spinner was experienced world-wide. Whether fidget spinners were zinging across school play grounds or became the new hand-held craze for professionals who engaged their restless hands, the perpetual playfulness of the toy allowed it to sell itself. The fidget spinner craze has grown so exponentially that you are likely to encounter the toy at almost every convenience store, retail outlet as well as a plethora in the informal market.

With such a global presence one would expect the inventor of the spinning toy to be celebrating her success while spending the remainder of her life lazing on a tropical island and sipping on a Mojito. Unfortunately, however, its inventor, Catherine Hettinger, did not quite get to relish in the success of her invention.

In 1992, Hettinger saw the value in her invention and filed a US patent in an attempt to secure its exclusive rights. By 2005, Hettinger had failed to commercialise her invention and elected instead to abandon her US patent to avoid spending $400 on what she deemed an unfruitful project.

Today, tens of millions of these spinning toys have been sold and marketed globally allowing the Fidget Spinner to be ranked amongst other timeless toys such as the Yoyo, Rubiks Cube and the Slinky. To avoid other inventors of losing out on potentially globally attractive inventions, it is important to understand what is required to both monetize and protect intellectual property (IP).

TRADE MARK PROTECTION

While Catherine Hettinger’s failure to benefit from her invention arose from a failure to renew a patent registration, it is important to appreciate that other forms of IP protection are also available.

With the fidget spinner now being found globally in varying forms and weighing different weights, hundreds, if not thousands of savvy business people are selling and exporting huge volumes and benefitting financially because of it. So, how can it be protected?

While the toy can differ dependent on design, colour, size or weight, one thing that is consistent worldwide, is the genericised name THE FIDGET SPINNER.

An important principle in trade mark law that determines whether a mark is registrable is considering if it is unique and distinctive. As soon as a word mark such as FIDGET SPINNER has been so widely utilized that it begins to refer to a class of goods or an action and/or verb, such a mark becomes genericised and unenforceable.

To avoid your trade mark becoming genericised you can apply the following steps:

  1. Create a unique and distinctive trademark;
  2. File trade mark applications for that mark in your territories of interest; and
  3. ENFORCE! ENFORCE! ENFORCE!

RENEW YOUR PATENT REGISTRATIONS

While it can appear costly to pay both professional and official fees to renew a patent, it is important you do so in order to ensure that you are able to continue to claim exclusive rights in your invention.

In the event that you have been unable to commercialize your invention to date, it is further advisable that you approach investors to aid you in establishing the capital needed to take your invention from a mere patent registration to a worldwide sensation. Importantly, you should always ensure that you have a well drafted non-disclosure agreement in place when approaching investors.

Should you require any assistance with reviewing your current intellectual property portfolio or would like to take steps to secure intellectual property rights for the first time, contact an experienced IP firm to ensure that you enjoy the fruits of your hard work, rather than having a similar experience to Catherine Hettinger’s lost opportunity.

(This article is provided for informational purposes only and not for the purpose of providing legal advice. For more information on the topic, please contact the author/s or the relevant provider.)
Jade Courtney
Jade Courtney

Jade Courtney is a candidate attorney at KISCH IP's trade mark department. She is currently training in respect of trade mark searching, filing and prosecuting, as well as in respect of trade mark portfolio managing.

Send a legal query to Jade Courtney
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