Deelie Bobbers by Parker Brothers [0]. They're smaller, 1" but there's no question that it's essentially the same thing. There's a patents US2984935A [1] and US3177611A [2] from 1959 and 62.
So I suppose the question is, how can you make money as a distributor of an over 50 year old product?
The article seems to suggest that they created this toy and that patent protection is an option, which seems at very least disingenuous.
Copying a 20 year old product may explain why Brain Flakes are supposedly popular and why so many companies were comfortable with cloning the product, which makes it seem even more disingenuous.
The only legitimate gripe that I see are a few other companies ripping off the marketing materials. Even so, the example of Brain Flakes vs. Creative Flakes is, IMHO, the only one that I would label as creating confusion among consumers.
You can patent an improvement or tweak to a previous product. E.g., someone could patent a pencil, then someone could patent a pencil with an eraser, then someone could patent a pencil with a pyramid-shaped eraser. So they possibly are trying to patent some small inprovement to the older product.
Then the copycats can bypass your tweak patent by not implementing your tweak.
In theory. But having a patent lets you sue your competitors in a very expensive way for them, even if they win by invalidating your patent as straightforwardly as the legal system allows.
Funny how that works. I guess when the OP said you need a lawyer, it was more of a threat than friendly advice.
So I suppose the question is, how can you make money as a distributor of an over 50 year old product?
The article seems to suggest that they created this toy and that patent protection is an option, which seems at very least disingenuous.
[0] https://www.etsy.com/ie/listing/704956160/deelie-bobbers-gam... [1] https://patents.google.com/patent/US2984935A/en?oq=2984935 [2] https://patents.google.com/patent/US3177611A/en?oq=3177611