Discussion:
What is the name of your state?Texas
If I create a new design for an existing product say, jewelry, 1. do I need a trademark? 2. Copyrights? 3. If I incorporate another company's product in this new design, with an unrelated use, can I market them as made with "genuine XYZ parts" without them unleashing the hounds?
And lastly, A dear friend made a related product many years ago. She is now deceased (dang tractor). I looked up the history on her product and the last entry dated 2004-04-24 reads: Canceled Section 8 (10-year) Expired Section 9. Can I register her trademark anew, or re-name and claim it. They didn't make her rich (she was a little ahead of her time) but I know she won't mind if they make me... Thanks!
Answer:
1. do I need a trademark? First off, a grant of a trademark isn't automatic. In order to qualify for a trademark, you need to have something "distinctive" -- it can be a phrase, a logo, or a design -- that is used to "identify" the source of your product to a consumer. So if you have some sort of specific "design" that you use in advertising to identify your jewelry, for example, then the design could potentially become a trademark.
Second, you'll need to actually use the "mark" in interstate commerce in order to obtain a trademark registration. You can apply for a registration before you start selling, but you'll need to start selling before you can actually obtain the registration.
Finally, you can't just trademark any old design -- it has to be a design that "identifies" your company or whatever. A design of a piece of jewelry cannot be trademarked, even if unique to you, unless it becomes so associated with you that it "identifies" you as its source, or if you use the design in some consistent manner to create that "brand identity," so to speak.
2. Copyrights? Copyright is the usual mode of protection that would apply to "creative" works. Copyright can coexist with trademark and patent, but if trademark and patent are not applicable, copyright is often the "fallback" position.
3. If I incorporate another company's product in this new design, with an unrelated use, can I market them as made with "genuine XYZ parts" without them unleashing the hounds? Depends. Does the other company hold a patent on the existing product? How would you acquire the existing product madfe by the other company? Does the other company hold a trademark on "XYZ?"
Can I register her trademark anew, or re-name and claim it. You can potentially trademark a mark that has become abandoned. Once a mark has become abandoned, however, you have to start from scratch in order to obtain the mark -- you'll need to file an application with the USPTO and begin to use the mark in interstate commerce, and hope that nobody else has applied for the mark before you...
Answer:
First off, a grant of a trademark isn't automatic. In order to qualify for a trademark, you need to have something "distinctive" -- it can be a phrase, a logo, or a design -- that is used to "identify" the source of your product to a consumer. So if you have some sort of specific "design" that you use in advertising to identify your jewelry, for example, then the design could potentially become a trademark.
Second, you'll need to actually use the "mark" in interstate commerce in order to obtain a trademark registration. You can apply for a registration before you start selling, but you'll need to start selling before you can actually obtain the registration.
Finally, you can't just trademark any old design -- it has to be a design that "identifies" your company or whatever. A design of a piece of jewelry cannot be trademarked, even if unique to you, unless it becomes so associated with you that it "identifies" you as its source, or if you use the design in some consistent manner to create that "brand identity," so to speak.
It identify's my product, for sure! No one will ever mistake the name for something else!

Copyright is the usual mode of protection that would apply to "creative" works. Copyright can coexist with trademark and patent, but if trademark and patent are not applicable, copyright is often the "fallback" position.
So I probably only need a trademark and copyright to protect my products. Is that correct?

Depends. Does the other company hold a patent on the existing product? How would you acquire the existing product madfe by the other company? Does the other company hold a trademark on "XYZ?"

The product is common. LOTS of companies make them, theirs are just the cutest (and most well-known). I'd have to buy them retail, as there is no other way to aquire them that I know of. The products are permanently marked with the company's name, so even if they spank me and make me take their name off of my packaging, it won't matter...
You can potentially trademark a mark that has become abandoned. Once a mark has become abandoned, however, you have to start from scratch in order to obtain the mark -- you'll need to file an application with the USPTO and begin to use the mark in interstate commerce, and hope that nobody else has applied for the mark before you...
I wasn't wild about the name, but the product is a great idea.Thanks for your help!