Trademarks in Furniture?
A recent article New York Times (reprinted in the San Francisco Chronicle) discusses trademark protection of classic modernist furniture designs.
Somebody sees something nice in your home — a recognizable luxury object, like an Eames chair or a Noguchi coffee table. It’s a knock-off. You know it’s a knock-off. You knew it was a knock-off when you bought it. And both you and the manufacturer know that when somebody sees it in your house, they’re going to think it’s real.
That’s what’s happening in the situations discussed in the article, and that’s what happened in an old Second Circuit trademark case called Mastercrafters Clock & Radio Co. v. Vacheron & Constantin-LeCoultre Watches, Inc.. The defendant made clocks that looked like plaintiff’s clocks. Buyers knew very well that defendant’s clocks were knock-offs; the knock-offs plugged into the wall, while the real thing was powered by changes in atmospheric pressure. The Second Circuit found that there was an actionable likelihood of confusion and ruled in favor of plaintiffs.
It seems we’re in the same situation here; Mastercrafters governs, and Design Within Reach has to stop making fake Mies pieces. But I don’t think the policy behind Mastercrafters lies within the purposes of trademark law. Trademark law is about consumer protection — making sure that consumers aren’t confused about the source of the goods they’re buying. Once they’ve bought the goods, it shouldn’t matter if some other non-buyer is confused. Knock-offs take away some of the cachet of owning an original, but trademark law isn’t around to protect cachet; it exists to make sure that when a buyer looks at a good, he can tell who made it. Selling fake purses in Chinatown is a victimless offense.
(This post was originally going to talk about how Dastar may have overruled Mastercrafters, but since furniture isn’t copyrightable in the first place, Dastar probably has no effect on this situation. I would like to be proven wrong; any contrary opinions?)
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Well, it depends on what you think the implications of uncopyrightability are. If you treat it as a deliberate decision by Congress that protection not be available for certain classes of subject matter, than trademarks in uncopyrightable items are an end run around Congressional limits on copyright in a straight Dastar mold. But if you think it’s more of a jurisdictional line (this is where copyright ends; beyond this frontier lies trademark, where trademark is appropriate), then go ahead and trademark your chaise lounge.
Now, to me, it would seem anomalous if you could get broader trademark protection for something that isn’t copyrightable in the first place than for something that Congress considered sufficiently creatively valuable to deem worthy of copyright protection. But this is the kind of battle of negative inferences that majorities and dissents can quite easily get into, each accusing the other of reading Congressional silence the wrong way.
There are similar problems at the trademark/patent boundary too, are there not?
Comment by James Grimmelmann — November 4, 2004 @ 11:19 pm
This puts me in mind of “look and feel” arguments–am I way off base here?
Comment by Adam — November 8, 2004 @ 2:38 pm
Isn’t this the point of design patents? If they didn’t file a patent or the patent is expired, too bad. Don’t use a trademark to do a patent’s job.
Comment by Wes Felter — November 9, 2004 @ 4:55 pm