Popular Woodworking 2008-11 № 172, страница 51

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Utility patent. Above is the utility patent tor the Balans Variable Chair, a popular seating form in the 1980s.

Stickley. This trademark from Custav Stickley's Craftsman Workshops is found on pieces manufactured from 1912 to 191b. The designs were out of production for a number of years, and thus are now in the public domain.

selling their reproduction of a Craftsman-era chair applies to it (or their advertising) any of the protected words or logos associated with Frank Lloyd Wright, the reproducer may receive a nasty letter from the Frank Lloyd Wright Foundation, which currently holds a great many trademarks associated with the late architect.

Trade Dress

Trade dress on the other hand, or as it is formally known "product configuration trade dress," recognizes that the shape of a product can operate similar to a brand name or logo (as asserted by Herman Miller for the Lames lounge chair). Fortunately for the reproduction woodworker, the shape of a furniture piece must satisfy a high standard in order to acquire trade dress protection; not many furniture designs will qualify. Unless a business has been aggressive overa period of years policing its furniture designs, trade dress protection is not likely to be recognized.

In 1997, the U.S. Court of Appeals, 2nd Circuit, issued a decision stemming from a trade dress infringement suit filed by Michigan-based Landscape Forms, Inc., a designer/ manufacturer of furniture used in airports, parks and shopping malls. I he court reasoned that elements in the shape of furniture are sometimes fairly equated by consumers as the "stamp of their maker." Despite the opportunity for trade dress protection to exist in any non-functional design feature, it will only arise

once the shape of a product has developed substantial recognition with consumers as a reliable symbol that they associate with a single producer or source.

Under the right conditions, any trademark -be il a makers mark, name, logo or distinctive product shape - may continue indefinitely. (Examples of long-lived trademarks include beer brands Lowenbrau, which claims rights back to 1383,and Stella Artoisdatingio 1366.) Unlike patents, trademarks do not have to be registered with any government agency to be enforceable. As a consequence, it is sometimes difficult toassesswhen a particular furniture piece embodies protectable trade dress, and all the more reason why the prudent seller of reproduction f urniture relies on professional legal support to assess infringement risks.

Assess the Situation

Countless intellectual property traps have been set by furniture designers and creators to stop unaut horized copy ing of their work. Reproduction woodworkers aspiring to sell i heir handiwork arc at risk of stepping in one or more traps if they are not careful.

An honest, self-administered inquiry may help the reproduction woodworker recognize when trademark infringement could be an issue. If the answer to any of the following questions is "yes." then you may be venturing dangerously close to trademark infringement:

■ Am I intentionally playing off the good name

and reputation of someone else by adopting (or straying too close to) their name, logo or product design?

■ Is il possible that buyers might mistakenly assume my product is sponsored or approved by the originator of the furniture piece I am replicating?

■ Is the furniture piece I intend to reproduce currently available from only one particular source?

To avoid patent and copyright traps, consider the age of the piece to be copied. If it first appeared more than 120 years ago and has since been knocked off by oihers without apparent backlash, then it is unlikely any threatening intellectual property traps remain. Ifthe inspirational design is somewhere between 20-120 years old, then any patent will have expired and only copyright and trademark dimensions need be considered. Here too, multiple precedents of other people copying the same furniture design suggest the coast is clear. Any inspiring furniture design that is less than 20 years old should be reviewed for patents, in addition to trademarks and copyrights, before attempting a commercial knock-off. Asa general caution, the first person to knock-offa particular furniture design, even one that is greater than 120 years old, should be wary. In all cases, consult a qualified intellectual property lawyer before exposing yourself to unnecessary risk and liability.

On the flip side of this discussion, if you happen to be a furniture designer and want to protect your latest masterpiece, consider all these forms of intellectual property. Patent strategies tend to be the stronger and more easily enforced formsof intellectual property protection. However, patent protection can be expensive and the decision to file for a patent must be carried out early, at most within one year of first making the furniture design known to the public. For non-functional artistic features of furniture design, copyrights provide a lot of "bang for the buck." They are easily registered and enjoy a long lifespan, although they are only effective against direct copiers. Trademarks are a valuable tool for any business, but require consistency in use and vigilant policingand marketingin order to maintain. PW

Ion is an attorney specializing in intellectual property law, and is registered with the U.S. Patent & Trademark Office. I le has been counseling inventors and avidly working wood in his spare lime tor more than 20 years. Ion lives in Chelsea, Mich.

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