A fellow inventor turned me onto Lucky Break Wishbone a company that produces plastic wishbones just like your turkey. Now everyone around the table, even vegetarians can take part in the tradition of the wishbone. While this product is appropriate because of Thanksgiving, it also provides an interesting product protection case, without patents.

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First a little background. The idea for a plastic wishbone that mimicked the breaking of a turkey wish bone was conceived in 1999. In 2004, the Lucky Break Wishbone was in a market test with 10 retailers. In 2005 the website was launched and sales channels were opened up.  And this is where the story gets very interesting.

In June of 2005, Y+R the promotional firm for Sears expressed interested in supplying Lucky Break Wishbone’s as a promotional product around Thanksgiving.  On August 4th they had agreed on 1.3 million wishbones in the Sears blue color.  But in 9 days, on August 11th Y+R said that they were going offshore.  Sears did do the promotion in November with their off shore version.  Lucky Break filed a copyright infringement case.

Why a copyright, when everyone is talking always talking about patents?  Well from IPWatchdog “a copyright is provided to the authors of “original works of authorship,” including (1) literary works ; (2) musical works, including any accompanying words; (3) dramatic works, including any accompanying music; (4) pantomimes and choreographic works; (5) pictorial, graphic, and sculptural works ; (6) motion pictures and other audiovisual works ; (7) sound recordings; and (8) architectural works.”  While many focus on copyrighting protecting the language around the product, the design is actually a form of the pictorial, graphic and sculptural category.

The case took a very interesting turn when Sears argued that the copyright did not apply, the wishbone was from nature and therefore God’s art.  However, with the help of some bird bone experts, Lucky Break was able to prove that their design differed significantly from the actual turkey bone in order to re-create the breaking with plastic.  Furthermore, the Sears knock off had incorporated these differences within their bone with no proof of independent creation.

In July of 2008 Lucky Break was awarded $1.7 million.  And now the company is looking to rebound as sales throughout this long legal battle had cut in half.