Being a business law attorney it came to my attention, as I walked down the snack food aisle at the grocery store, and noticed a product that looked similar to a “Twinkie” that product copying can clearly be a problem for a business owner. The snack cake I saw was clearly not a “Twinkie”, however, and had a completely different name. Since the return of the true “Twinkie” in 2013, certainly there are loyal customers everywhere who will want the real thing and not an imposter.
If not for certain legal protections, any person could copy the product of another to make a competing product, even using the same name as the competing product, like “Twinkie.” Fortunately, federal and state laws related to copyrights, patents, and trademarks provide protections for intellectual property, such as names and designs. For example, an Arizona statute, Arizona Revised Statute § 44-1460.05, sets forth some of the rights a person may receive by registering a trade name in this state:
The registration of a trade name if prior in time to the filing of articles of incorporation or the reservation of a corporate name shall give to the holder of the registered trade name exclusive right to the use of such name.
This does not necessarily mean that no one can use the same name for any purpose, but the law in many cases does provide protection specific to the type of product or business associated with the name. Moreover, even the continual use of a name without registering it may be sufficient to establish some trade name rights. Other laws provide protections for such things as trade dress (the way a product or service is packaged–think the shape of a bottle of Coca Cola for example), designs, and written works.
Of course the existence of these laws does not mean that no one will ever attempt to copy the work of another to gain an unfair advantage. Also, if the owner of a name or design does not take the proper steps to protect his intellectual property, he might limit his ability to legally protect it. To better protect an idea and/or to stop others who may be infringing on one’s intellectual property rights, a person should contact a qualified business law attorney to determine what legal steps to take. If we cannot provide the help you need, we can refer you to others who can.