How do I protect my idea?

JimIvey

How to protect a pet rock?

Patents: unavailable.  From a technological standpoint, it's very hard to argue that there's anything novel or non-obvious about a rock in a crate.

Trade secret:  unavailable.  I would be very surprised to find that there's anything about the rock in the crate that's not publicly known.

Trademark:  available and probably useful.  He could have prevented others from using the phrase "pet rock" to describe their competing rock in a crate.  The few months you mentioned is too short to get a registered trademark, but you can instantly claim common law trademark protection by putting the mini "TM" by "Pet Rock."  Enforcement is more difficult than with a registered trademark, but you still have something to argue about in court.

Copyright:  sort of available.  You're not likely to get a copyright on the rock itself or the idea of putting it in a crate.  But you can get copyright protection for any graphical artwork and wording on the crate.

Trade dress:  probably available.  That's a subset of "unfair competition" and can be viewed as something like trademark protection.  The argue would be that "knockoffs" are using similar packaging which is confusing to the consumer -- i.e., making them think they're getting an authentic "pet rock" when in fact they're getting an imposter.

So, the bottom line is that the creator of the pet rock probably could have protected it if he decided to do so.  My guess is that he either (i) didn't know he could or (ii) decided it wasn't worth it.  The reasoning for (ii) would be that the product was a fad product with a very short useful life and that any litigation on the matter would be expensive and unlikely to extend the useful life by an appreciable amount.  

Suppose, for example, that Mr. Dahl figured he had a maximum of one year before the fad would peter out.  If he got 8 good months before knockoffs started appearing, that's not bad.  Any litigation on the remaining 4 months wouldn't be settled in time to save much of the profits from the last 4 months.  And the costs could easily exceed those profits and eat into profits from the previous 8 months.

Some business ideas have very limited lifespans and legal remedies just don't seem to fit well.

Regards.

eric st...

Great question.

The pet rock - as sold in the 1970's - was one of those ideas which would have been hard to protect with IP. But it probably didn't matter, the business model was not dependent on IP: the key element in the business plan was timing.  

Fads die quickly and after the initial few months surge there usually isn't much profit left. By being first out with the product, Mr. Dahl didn't need IP. All his profit was on the front end and so his period of "sustainable differentiation" was long enough. Once the copycats started cutting into his action, the market was already greatly diminished. He may have wasted his time getting patents to cover his idea and even more money trying to defend his share of a shrinking market.

On the other hand, say the pet rock had staying power... like Barbie (the original pet rock.) Then it would be necessary to design-in features which could be protected with IP. In addition to choosing a catchy name for a trademark, maybe he could have designed in features into the rock which made it eligible for design patent protection, or even copyright protection. Perhaps patent a unique box in which it is sold, or displayed.

While it was not possible in 1975, it might now be possible to patent the business model - it certainly was not obvious that selling rocks would have generated such commercial success.

My guess is that the Pet Rock was never destined to live for more than a short period of time and IP protection would not have made too much difference in the profits Dahl was able to extract.

Your specific idea may be entirely different. If so, then spending a few hours with a patent expert to discuss the details of your circumstances might be money well spent.

Regards,

Eric Stasik

M. Arth...

The best I can think of NOW is a proposed use trademark application maturing into a registration in use.

That would not preclude paralell usage but would save the name for all its imaginative effects.

The the mark might be rejectable as descriptive. It could be appealed.

bp57

Now I know why this site and all of the contributors get such high ratings.  Thanks VERY much.

When my idea hits the big time and Newsweek wants to interview me (hey, I can hope, right?), you'll each be acknowledged and thanked.

Thanks again, BP.

M. Arth...

Have you yet consulted an IP professional you can trust?

M. Arth...

I"m waiting.