30
Nov/09

"Case Study" of Design Within Reach's Move To "Knock-Offs" Plus Questions For Discussion


dwr credenza.jpg
Design Within Reach, a retailer of designer furniture, used to promote itself as ‘The source for licensed classics,’ selling modern classics such as the Barcelona Chair and Eames Chair. This earned it a certain following but also a non-following who referred to it as ‘Design Out Of Reach.” This FastCompany article details its current finanical troubles and its re-positioning away from licensed products to sell what some may refer to as knock-offs. The article contains interesting quotes by designers whose products have been ‘knocked-off’ by DNR, as well as by licensors (such as the Eames estate) that still do business with DNR but are having second thoughts. Bonus quote from Prof. McCarthy re trade dress protection of furniture, or lack thereof.
Things to think about:
1. Is it ironic that licensed versions of Modernism, a movement that, to the extent that it was inspired in part by the Bauhaus movement and thus had at least a stated objective of bringing ‘design’ to the ‘masses,’ are, for most part, unaffordable to the masses? Or is it some word other than ‘ironic’?
2. Is trade dress protection for the shape of Modern furniture more or less appropriate, given the simplicity of Modern design? Is there a public policy argument to be made against trade dress protection for the shape of furniture?
3. Does DWR’s prior relationship with the designers that it ‘knocks off’ influence your opinion of DWR?
4. Is there a Platonic chair that is intelligently designed and is affordable?
March 2009 blog post on trademark suit against DWR here.
dwr blu dot.jpg



23
Nov/09

YooHoo v Beanie Boos re Crossed Big Pupiled Colored Iris Eye Dolls


yoohoo plust toys.jpg
Beanie Boos.jpg
Aurora, seller of YOOHOO AND FRIENDS plush dolls sues Ty, maker of BEANIE BOOS plush dolls for copyright and trade dress infringement, regardnig dolls that have crossed eyes, big pupils and colored irises.
The photograph of the Beanie Boos was taken by Sondra Schlossberg.
Memo Yoohoo v Beanie Boo Copyright Trade Dress



21
Sep/09

Trade Dress Suit Re Danish Cookie Tins


royal dansk tin.jpg
danish cookies.jpg
Note that I did not have access to legible exhibits to the complaint. I understand these to be cookie tins offered by plaintiff and defendant and not necessarily the products involved in this action.
Complaint Danish Butter Cookies



16
Sep/09

Knoll v Mod Decor re 'Shape' of Barcelona Collection


barcelona couch.gif
Knoll, successor in interest to Mies van der Rohe’s Barcelona collection, sues Mod Decor on ‘look-a-like’ furntiure.
Mod Decor’s ‘modern seating’ page here.
Prior post on protection of Barcelona chair here.
Drawing from Knoll’s registration in the Barcelona couch above.
Knoll filed a similar lawsuit against Sexyfurnishings today as well.
Complaint Barcelona Chair



1
Sep/09

Complaint Alleging Trade Dress In Software


Fidelity sues defendant for copyright infringement and trade dress in software.
Decision in a W.D. Washington website trade dress case here.
Complaint Trade Dress Software



18
Aug/09

Pictures Not Worth 1000 Words: How To Plead Trade Dress Infringement and Dilution


Plaintiff is the authorized distributor of the BELLINI CHAIR. A registration for the shape of the chair looks like this:
bellini chair reg drawing 2.jpg
Design Within Reach had been an authorized retailer of the BELLINI chair:
bellini dnr 2.jpg
Then DNR came out with a chair that looked like this:
dnr alonzo.jpg
Plaintiff sued on trade dress infringement and dilution (Bellini complaint previously reported here).
DNR moves to dismiss the complaint.
Held as to dilution: Dismissed. Plaintiff had pled that the Bellini chair was well known to the “relevant public interested in contemporary furniture.” That is niche fame, not fame among the ‘general consuming public.’ Revenues of $1 million is nowhere near the levels where plaintiff could plausibly prove fame, as that term is used by the dilution statute.
Held as to trade dress: Dismissed without prejudice for failure to articulate a precise expression of the character and scope of the claimed trade dress. A copy of the drawing from the trademark registration and a photo of the product was INSUFFICIENT in articulating the distinctive features of the trade dress. Plaintiff had to identify the elements of the trade dress that were distintive.
Decision Bellini Trade Dress
, then came out with a chair that plaintiff alleged infringed the Bellini



10
Aug/09

DALLAS BBQ v HARLEM BBQ Restaurant Trade Dress Case


harlem bbq.jpg
Former employee of DALLAS BBQ starts BBQ HARLEM. Allegations of trade secret as well as trade dress infringement (signs, awnings, etc.). Photo from here.
Complaint Bbq



16
Jul/09

Nike Asserts Protection of Wavy Pattern on AIR FORCE 1 Shoe


nike air force drawing.jpg
nike-air-force-1-one-grey-white-2.jpg
yums sugar.jpg
Nike owns a registration in the design of the AIR FORCE 1 sneaker (middle picture) consisting of “the design of the stitching on the exterior of the shoe, the design of the material panels that form the exterior body of the shoe, the design of the wavy panel on the top of the shoe that encompasses the eyelets for the shoe laces, the design of the vertical ridge pattern on the sides of the sole of the shoe, and the relative position of these elements to each other” (drawing shown on top).
It has now sued Yum, alleging infringement of that design by Yum’s Sugar shoes (bottom photo)
Complaint Nike Air



26
Jun/09

Trade Dress Complaint Bounced For Failure To Allege Factus of Non-Functionality


Via Loeb and Loeb: Do Denim v Fried Denim:

Although Plaintiff’s opposition papers contain various generalized assertions about the nature of the jeans industry and the extent to which jeans designers rely on back-pocket-embroidered designs that may or may not be similar ot the Dragon Design, the Amended Compaint itself contains no factual allegation as to whether protecting the Dragon Design in the manner contemplated by the Plaintiff would put competitors at a significant non-reputation-related disadvantage.

Any suggestions as to how you would plead that back pocket embroidery is non-functional in a specific non-conclusory manner? “The stuff stays in the pocket regardless”?
HT: DD



30
May/09

CLEAN v KLEAN Perfume/Cosmetics Trade Dress


clean perfume.jpg

From the complaint: Each of plaintiff’s CLEAN products
and marketing materials bear inherently distinctive designs and/or such design have acquired distinctivenss wherein the word “CLEAN” appears large and starkly on the labeling with larger than appropriate spacing between each letter of CLEAN. (para. 11). Defendants are selling a line of fragrance and skin care products bearing the name KLEAN that also seems to copy the trade dress. Para 14.
Complaint Clean Klean