can i get sued if i create my own cosmetic line and use the same bottle container for my lipsticks that another company has even though I have a different name and different color lettering on it?

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can i get sued if i create my own cosmetic line and use the same bottle container for my lipsticks that another company has even though I have a different name and different color lettering on it?

I am creating my own cosmetic line and I am having a hard time finding containers
without seeing another cosmetic line that already has that same bottle. Can I get
sued if I use the same container that they do even if I put my own business name
and different color for the lettering?

Asked on November 28, 2016 under Business Law, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

It depends on whether the bottle is distinctive and has been trademarked or its design copyrighted or patented. It is possible for a distinctive container to be a trademark; it is also possible for a container with a distinctive sculptural look and/or an innovate functional design (e.g. particularly easy to grip, pour, store, and/or dispense) to be protected by copyright or patent. IF the chosen bottle is protected by any one of those three types of intellectual property (trademark, copyright, patent), you cannot use it. Check the bottle and company website to see if there is any notice or indicia of trademark, patent, etc. on the bottle; also go to the U.S. Patent and Trademark Office (PTO) website and search for patents or trademarks owned by that compay and see if any apply to the bottle. If there is no intellectual prooperty protecting it, you can use it as long as you also do things similar to what you say, to avoid confusing customers as to the origin of the products (implicitly misleading customers as to where a product comes from is illegal regardless of intellectual property). For this last reason, using a fairly generic or non-distinctive  bottle is recommended, since it is less likely to be protected by intellectual property and is less likely to confuse customers as to where it comes from, since it does not have a distinctive look associated with one particular line of products.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

It depends on whether the bottle is distinctive and has been trademarked or its design copyrighted or patented. It is possible for a distinctive container to be a trademark; it is also possible for a container with a distinctive sculptural look and/or an innovate functional design (e.g. particularly easy to grip, pour, store, and/or dispense) to be protected by copyright or patent. IF the chosen bottle is protected by any one of those three types of intellectual property (trademark, copyright, patent), you cannot use it. Check the bottle and company website to see if there is any notice or indicia of trademark, patent, etc. on the bottle; also go to the U.S. Patent and Trademark Office (PTO) website and search for patents or trademarks owned by that compay and see if any apply to the bottle. If there is no intellectual prooperty protecting it, you can use it as long as you also do things similar to what you say, to avoid confusing customers as to the origin of the products (implicitly misleading customers as to where a product comes from is illegal regardless of intellectual property). For this last reason, using a fairly generic or non-distinctive  bottle is recommended, since it is less likely to be protected by intellectual property and is less likely to confuse customers as to where it comes from, since it does not have a distinctive look associated with one particular line of products.


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