Using an expired trademark and patent

[megalync]

Jurisdiction

California

Hi. There was company started in 1980s that sold a specific shaped product. The actual ornamental shape was patented around that time.

The company went bankrupt in 1993. The family members of the owner of the company are happy with me bringing back the product to life but the owner of the company passed away and they have no information on who obtained the company after the bankruptcy or who owns the rights to the trademark or patents. Patent info does not show any other owner past the original inventor/owner.

i did a search it does not show who owns the patent or if the fees were paid. It just says Dead/Expired-lifetime for both. Called the uspto office and they said they do not have info. They said i have to look into a patent attorney. I'd figured If i can get info here before hiring an attorney.

Am I safe to reproduce the product legally or is the shape protected still?

any information is deeply appreciated.

 

[welkin]

Looks like that if the patent is Dead/Expired that it is now in the public domain. So you could produce it but you could not patent it without making some design changes or improvement and filing a new application.

 

[flyingron]

You can't patent what has already been patented, period. You can perhaps get a patent on your improvement if they are novel and non-obvious (that is, they meet the basic requirement for patentability).

Neither Utility nor Design patents have any renewal or subsequent fees due. Once they're expired (14 years for Design, 20 years for Utility), they are gone. It would have taken a court action (or voluntary action by the owner) to kill them off sooner.

Trademarks on the other hand can live forever as long as they continued to be used in commerce. The dead registration is a good hint, but it doesn't mean that the trademark isn't still in use. Of course, if nobody picked up the trademark in a successor business once the first went under and the principal died, it's likely it is indeed dead.

 

[zddoodah]

The actual ornamental shape was patented around that time.

A shape cannot be patented.

The company went bankrupt in 1993. The family members of the owner of the company are happy with me bringing back the product to life but the owner of the company passed away and they have no information on who obtained the company after the bankruptcy or who owns the rights to the trademark or patents. Patent info does not show any other owner past the original inventor/owner.

Any patent issued in the 1980s has LONG since expired.

Am I safe to reproduce the product legally or is the shape protected still?

No one who doesn't know all details about the product and whatever intellectual property protection might exist can answer this question intelligently.

I notice that the subject header of your post refers to both patent and trademark, but the post itself is utterly silent about trademark (aside from your statement that one or more of "[t]he family members of the owner of the company . . . have no information [about] . . . who owns the rights to the trademark or patents"). Was that intentional?