Many of the large toy companies are willing to license ideas from outside inventors. Some run formal submission programs, others take pitches at trade shows, and it is one of the few industries where an independent inventor can get a real meeting without an introduction. If you are getting ready to show your toy to one of them, there is groundwork worth doing before that meeting.
An up-front disclaimer. The rules here are situation-specific, and the right answer for your product depends on facts I would need to review. Nothing in this post is legal advice and no one should rely on it as legal advice. These are general comments intended to help you understand how this works and ask better questions.
With that in mind, here is how I typically walk an inventor through it.
What happens when you submit an idea
Getting your idea in front of a toy company requires disclosure. There is no version of the pitch where you keep it to yourself, and the companies receiving these submissions see a great many of them. Some of what they see may overlap with work already underway inside the company. To reduce the risk that an outside submission clouds the ownership of something the company is already working on, the company will usually require a protective agreement to be in place.
Read the submission agreement carefully
Before a company will review your idea for possible licensing, it will typically ask you to sign a submission agreement drafted by the company’s counsel and written with the company’s interests in mind.
Proposed terms that I commonly see include language stating that the company is under no obligation of confidentiality, that it may already be developing something similar, that it is free to use ideas it receives without payment, and that your rights are limited to whatever patent rights you independently hold.
Therefore, under many of these agreements, you are protected only by patent applications that you file before you disclose the idea to the potential licensee.
File before you disclose
So, if you are going to pitch your toy, it is usually important to get a patent application on file beforehand.
Sometimes a provisional patent application can be the right first step. It establishes your priority date quickly, it is not published, and it gives you roughly twelve months to pitch, gauge interest, and decide whether to pursue a non-provisional utility patent application. For an inventor about to go into a series of meetings, there may not be time to get a full non-provisional patent application on file.
On the other hand, the content of a patent application exists to support the claims. If there is time to write the claims at the outset and go straight to a non-provisional application, the patent that results is typically more enforceable.
Avoid public disclosure, and do not waste time. In the US, a public disclosure by the inventor typically starts a twelve-month clock to file. That grace period is a feature of US law and almost no other country has one, so a public disclosure made before the application is on file in the US can immediately destroy your foreign filing rights.
A pitch made under a signed agreement is not necessarily a public disclosure. Given how many submission agreements expressly disclaim any obligation of confidentiality, I would rather not be arguing about it later.
Types of intellectual property for toys
Toys often need more than one kind of protection.
A design patent application covers the ornamental appearance. For toys that is often where the commercial value sits, and design applications typically move through the office faster. The tradeoff is scope, because a design patent is more easily designed around than a utility patent. A competitor only has to change how the product looks.
A utility patent application covers how the toy functions, meaning the mechanism, the play pattern, or the safety feature. It offers broader protection and typically takes longer to obtain.
For a toy that has both a distinctive appearance and a novel mechanism, filing both is often worth reviewing.
Trademarks cover the brand and character names. Copyright can cover artwork, sculpts, and doll designs, though not the functional aspects. Trade dress can cover distinctive packaging.
Product marketing duration
Toy products often have short market lives. Some products launch, peak, and fade within a single holiday season, and litigation typically takes considerably longer than that to reach a judgment. By the time a case is resolved the product may already be off the shelves. Others stay profitable for years, and which one you have changes the plan.
So when we review protection for a toy client, we look at what can realistically be enforced inside the product’s actual commercial window, including platform takedown tools and preliminary injunctions.
Where to start
If you have a toy invention and a meeting on the calendar, the sequence we typically recommend is a review of what you have, a search to see what is already out there, and a filing decision made before you disclose anything.
If you would like to discuss your product, you can reach me through our toy industry IP page or contact the firm directly.
Frequently asked questions
Should I file a patent application before pitching my toy idea to a company?
Typically, yes. Submission agreements are usually written so that the company owes you nothing beyond respecting patent rights you already hold. Filing first means you arrive at the meeting with something enforceable behind you.
Does a signed submission agreement keep my idea confidential?
Not always. Many submission agreements state expressly that the company is under no obligation of confidentiality and may already be working on something similar. Review the specific terms before you sign.
Should I get a design patent or a utility patent for a toy?
It depends on the specific aspects of value and novelty. A design patent application covers the ornamental appearance and typically moves faster. A utility patent application covers how the toy works and is generally harder to design around. Toys that have both a distinctive appearance and a novel mechanism are often good candidates for both.
How long do I have to file after showing my toy publicly?
In the US, a public disclosure by the inventor typically starts a twelve-month window to file. That grace period is a feature of US law. Almost no other country has one, so the effect of that same disclosure on your rights outside the US can be catastrophic and immediate. File the application before you disclose.
Can copyright protect my toy?
Copyright can cover artistic elements such as illustrations, sculpts, and character designs. It does not cover the functional aspects of the toy, which is where patents come in.
