Replica of the product - what can I do, What can not

Question

It's not clear to me how far can you move when you are making replica of something. On this example can you help me understand it better please?

Let's say I would like to build the replica of the engine and sell it. It will be not working, just standing on the display. So in general - it will have shape, but not function of the original product.

I know that I can not put any trademark on it. I know as well that it can not work, as it would be against patents. Would it be still legal to make one?

What if my engine will have same moving parts as the original one, but still will be not able to work. If those moving parts are part of claims in the patent to use in engine patent, will it be illegal to mimic them in replica?

Cheers, Filip

Answer 1

There are several forms of intellectual property:

1. Utility patents protect the functional aspects of a product for a period of approximately 20 years. If it is out of patent, it is in the public domain and you can freely make one. I can't think of any case where a patent infringement case was successfully made against someone who made a non-functional version of the patented item and I have no idea how the case law would play out in that. Usually those suits aren't brought because the functionality isn't imitated and it isn't valuable.

2. Design patents protect the design for about the same time period. Usually, a functional product like an engine wouldn't be subject to a design patent - more often, only the exterior of a vehicle design would be subject to a design patent.

3. A copyright protects expressions of a design or derivations of a copyright, but will not generally protect a functional design where the design parameters are governed by the laws of physics. Copyrights last much longer than patents (up to about a century depending upon who owns it), and there was a major change in the scope of copyright protection in the 1970s. Earlier copyrights required an affirmative filing to protect and had to be renewed. Later copyrights arise automatically, although filing and claiming a copyright enhances the copyright owner's rights. I would seriously doubt that an engine design would enjoy copyright protection.

4. Trade dress/trademark covers non-functional aspects of a good that are associated with a brand of good to sell a product and can arise even without a public filing at common law. For example, if the engine had a company logo embossed on it, this would have trademark protection.

Generally speaking, your project would be at low risk for intellectual property infringement, particularly if the engine were a classic one, rather than a modern one. It also helps, from a practical perspective, that few companies that own intellectual property rights associated with engines are actively pursuing possible infringements of their engine designs legally. They are in the business of selling parts for vehicles to make vehicles run; they are not in the business of selling their engine designs as art. They allocate scarce legal resources accordingly.