It is very important
for manufacturers and retailers to understand the scope of protection
afforded by copyright laws, because the wrong side of a copyright lawsuit is
not a good place to be.
The furniture industry has a longstanding preference for copying competitive
furniture designs. This is true of furniture manufacturers and also retailers
seeking to capitalize on style trends and useful functions of furniture.
You’ve probably seen press releases from manufacturers seeking ways to
legally protect their designs from direct copies or overseas knockoffs.
Brick-and-mortar and online furniture retailers, even if they do not
themselves “copy,” are not immune from direct or indirect
infringement claims of a manufacturer’s copyright, trade dress, or
patent. These intellectual property rights may apply to furniture designs and
prevent others from copying.
Is Copying Illegal?
Despite complaints that copying a competitor’s furniture designs is
ethically wrong, not all copying is illegal. Copying design aesthetics and
styles is usually permissible. Unlike in other jurisdictions such as the
European Union, the United States, as a matter of policy, decided that absent
special circumstances, neither copyright law nor trade dress law is available
to protect furniture product design. While patent protection for furniture
designs is available, obtaining it is relatively expensive and rare. So,
generally speaking, copying is part of marketplace competition in the United
States. There are, however ways to protect certain designs or configurations.
Intellectual Property Law
Manufacturers need to appreciate intellectual property law guidelines so they
can compete lawfully without violating another company’s rights. For
example, copying furniture designs becomes unfair competition when original
features are protected by copyright law or a design feature or
“marking” identifies a particular company as the sole source. Less
than a year ago, a court held that the iconic Herman Miller Aeron and Eames
chairs had acquired distinctiveness and were protectable trade dress. That,
the court ruled was because over time the public had come to associate those
products with Herman Miller as the single source of origin.
In the rest of this article, we will cover the basic “do’s and
don’ts” of copying and protecting intellectual property regarding
A brand name or logo is your commercial signature. It identifies who you are
and allows you to prevent others from using similar names or logos. This is,
of course, fundamental trademark law, which prevents consumers from becoming
confused as to the source of products. The name Herman Miller, for example, is
However, since furniture brand names and logos are often not displayed on the
physical product, manufacturers can adopt other identifying designs or
features as commercial signatures for their brands. That’s why
it’s a good idea, especially if your company is well known by consumers,
to incorporate a signature design or nonfunctional feature into your furniture
that customers associate with you only.
From there, a manufacturer needs to use those features exclusively and promote
them in advertising. Brand recognition is a huge marketing tool that can help
sell products and build loyalty. Based on this recognition, consumers know
that a product will deliver the quality they expect. Therefore, when you
include nonfunctional features that indicate to consumers that a piece of
furniture was manufactured by you, your product will have the potential to
acquire distinctiveness as a brand.
This acquired distinctiveness for product design features is referred to as
“secondary meaning.” Trade dress law, a subset of trademark law,
protects these kinds of designs because they enable consumers over time to
identify a product’s maker. To be clear, however, it is not the novelty
of the design choice that is important. Even the most unusual furniture
designs are not viewed by consumers as inherently distinctive or immediately
associated with only one company. The United States Supreme Court recognized
over 20 years ago that consumers of furniture, fashion, and other products are
predisposed to view product designs as either appealing or useful. That means
that they do not equate a feature with only one company upon the moment of
To help establish consumer recognition, it is first important to define which
non-functional features you claim are exclusive to you. Herman Miller was able
to accomplish this, in part, with the help of expert witness testimony. Then,
it is important to consistently focus advertising and marketing to draw
consumers’ attention to specifically “look for” those
features as your brand. If you can obtain exclusivity over time, achieve a
sufficient volume of sales, and engage in efforts to display those
non-functional features, then trade dress law may protect against others
copying those features. While trade dress protection is difficult to obtain,
it is a powerful tool to establish your presence in the furniture world.
Don’t Confuse Customers
The flip side to creating commercial brand recognition is to refrain from
copying another’s identity. If you copy a company’s brand name or
logo, you are in trouble. But if you plan to copy design features of another
company’s furniture product, it is important to avoid copying any
protectable trade dress features, as discussed above. Using a private label on
furniture is helpful, but is not always enough to avoid trade dress
infringement. In other industries, labels that are prominent and conspicuous
will usually avoid trade dress infringement over the shape of a product
because consumers will not be confused regarding the source. Furniture is
unique in a sense, because the use of labels is not often prominent or
When it comes to furniture design or marks, the key is to avoid consumer
confusion regarding the source. If you know that a non-functional design is
exclusively associated with a particular manufacturer, it may be best to avoid
using it or a similar design even if you have your private label. On the other
hand, if that design primarily serves a function, then it is not protectable,
no matter what the manufacturer might say, unless it is covered by, and marked
with, a patent. In addition, don’t assume that consumers automatically
associate the design with some other manufacturer.
If you plan to copy design features of another’s furniture
it is important to avoid copying any protectable ‘trade
Do Your Research
Try to figure out what the consumer perception of a particular design or
configuration is. If you were to design something similar, determine if
consumers would be puzzled about where the piece of furniture came from. Just
because a design is highly attractive or performs well, that does not mean it
is associated with only one company. Generally speaking, the law allows
competitors to copy product designs. But, if you copy and then attempt to pass
off your goods as those of another—by false advertising, using
another’s trademark, or misleading consumers in some way—the law
will not allow it. Many “house brands” or “store
brands” will copy colors and packaging and then use their private labels
to distinguish the products. There is no reason why furniture companies cannot
implement similar marketing strategies. For example, a retailer should be
allowed to engage in comparative advertising and promote their private label
furniture over a higher-end competitor’s similarly designed piece of
furniture. Again, in the absence of a patent, the retailer must remember not
to attempt to deceive consumers regarding the source.
When in doubt about copying furniture product designs, it is always best to
consult with an intellectual property attorney to decide on an appropriate
plan of action and minimize the risk of liability.
Copying Functional Designs
If you see a new design that affects the way the furniture operates or looks,
you are generally okay and encouraged to incorporate that design into your
products. Functional aspects of furniture are not protected by trade dress or
copyright. While you cannot protect them yourself, the law promotes
reproduction to foster marketplace competition. Using other furniture’s
functional aspects can enhance your designs and keep you out of legal trouble.
Functionality can be hard to define in practice. One type of functionality can
be thought of as the parts of furniture products needed for them to be used
properly. This definition may include chair legs, a lampshade or a table top.
Even a piece of furniture’s aesthetics can be functional depending on
the reason for its looks. If the aesthetic design of a product is itself the
“mark” that a company is trying to claim protection for, then
trade dress law—concerned only with source identification—will not
provide any legal protection. The reasoning for not extending trade dress
protection to aesthetic product features applies when the right to use those
features would place competitors at a significant non-reputation-related
disadvantage. Consumers of furniture, like fashion, deserve to purchase
aesthetically pleasing products from various manufacturers and brands.
Marketplace competition supports this notion and provides consumers with
options. Keeping this in mind, you can reuse someone else’s
aesthetically functional designs for furniture in most situations when doing
so relates primarily to design aesthetics, not source identification.
Role of Patents
DON’T copy furniture designs that are covered by a patent. While this
protection is rare, a patent will fully protect the furniture and its
ornamental or useful features. Therefore, if you plan to copy a design, it is
important to do a quick search to make sure that the design or configuration
is not covered by a patent.
The purpose of a patent is to protect new and useful inventions. They can be
used to protect new furniture designs if they meet these criteria. In
addition, design patents can protect the overall configuration or look of
furniture. However, this expansive protection is limited. For utility patents
(ones that cover useful features), the coverage is 20 years from the filing
date of the original application. A design patent has a time frame of 15 years
from the date of grant. It is important to keep this in mind while searching
because a patent may have already expired. As previously mentioned, patents
are difficult to obtain. In addition to requiring a novel concept, obtaining a
patent is expensive and takes a significant amount of time. For instance, the
USPTO’s website indicates that the average time to obtain a design
patent is around 21 months.
Before implementing a new feature into your furniture, running a quick patent
search can save you from a later headache. More likely than not, there will be
no patent coverage. Nevertheless, it is better to be sure than to find
yourself in a legal battle. The quickest way to check is to run a quick
internet search somewhere like Google Patents.
The last form of protection you can try to implement is copyright protection.
Copyright law protects original design features that are conceptually
separable from the functional parts of furniture. These creative aspects are
protectable. Consider, for example, a lamp that has a cat statue as the
lamp-stand. Since the cat statue can be imagined separately from the lamp and
still be considered a creative statue, the cat statue portion of the lamp is
protectable. Other examples might include carvings on furniture pieces or
artistic designs in a metal door.
Copyright can be useful for protecting designs, but it is not without its
limits. It cannot protect the overall configuration or design of furniture,
because typically furniture is considered a “useful article”
unprotectable under U.S. copyright law. Only conceptually separable creative
“original” elements are protectable. This means that if an element
is normally part of a useful article such as a piece of furniture, it is still
considered an unprotectable useful article. However, as mentioned above,
artistic carvings are not normally part of the furniture so those
ornamentations are conceptually separable and may be protectable if they are
Implementing creative designs that are conceptually separable from furniture
can be very beneficial. If you design furniture with these characteristics, it
may be a good idea to try to register with the U.S. copyright office. It is a
simple process that affords you the most protection. Plus, it will make
enforcing your rights much easier.
If you can enforce your copyrights the law will provide you with remedies. On
the other hand, if you are caught duplicating a copyrighted work, you will be
at risk of being forced to destroy your inventory, pay damages, disgorge your
profits, and potentially pay the owner’s attorneys’ fees. Even an
“innocent” retailer who purchased furniture from a manufacturer
may be on the hook for infringement if the retailer purchased furniture from a
manufacturer who violated another’s copyright. In the fashion industry,
for instance, retailers are often sued for copyright infringement even though
the retailer merely purchased goods from a vendor or supplier. Furniture
retailers can and should include indemnity provisions in purchase orders sent
Furniture manufacturers are allowed to protect certain design features as well
as lawfully compete by copying designs under appropriate circumstances. U.S.
intellectual property laws provide the guideposts for determining what can and
can’t be protected. Trademark law can protect marks and certain
configurations but is limited to those that identify the source of the
furniture. Patents cover functional and ornamental designs; however, they face
heavy costs and lengthy waiting periods. Copyright is another possible avenue
for protecting conceptually separable original design features. It, like
trademarks, is also limited to nonfunctional aspects of the furniture.
Understanding these laws can help you decide how to protect your furniture and
how to lawfully compete by copying unprotectable design features.
Buying, selling, and advertising furniture without understanding the
intellectual property laws is a risky business. If the boundaries are unclear
to you in a particular situation, it is best to consult with an intellectual
property attorney. Intellectual property lawsuits in furniture cases can be
challenging, confusing, and at times overwhelming. Securing a favorable
judgment may appear difficult given the legal hurdles, but filing a lawsuit
may be the only way to protect a company’s intellectual property rights
and prevent others from mass copying. Not all companies have the resources to
protect intellectual property in litigation or to defend against such claims,
so careful strategic consultation with legal counsel is the best approach
before making any decisions.