Protecting The Visual Design of A Product Is More Complex Than Most Realize...Just Ask Kim Kardashian!
Charles L Mauro CHFP
Founder and President of Mauro Usability Science / Neuroscience-based Design Research / IP Expert
In a recent article in Fast Company, it was stated that Kim Kardashian (Yes, that one) copied a table and chairs by the famous artist Donald Judd. The Judd Foundation is unhappy about this turn of events and has filed an IP suit against Ms. K. The problem is that Judd claims trade dress infringement, which is well known to be a challenging form of IP protection to prove. Judd also claims copyright infringement, but in both of these claims, Judd is at a major disadvantage for not having filed a DESIGN Patent on his furniture. Had he done so, Ms. K. would be far more likely to be found infringing and guilty.
However, the problem with protecting the non-functional visual design of products (including famous furniture) is well known to be far more complex than most attorneys and designers realize. One can protect the design of an object using design patents, copyrights, and, yes, trade dress, but Mr. Judd seems to have missed the proper IP framework. Faced with trade dress litigation in this matter, my POV is that the Judd Foundation settles well before Ms. K starts funding a bevy of LA lawyers. Ms. K., who is studying to become a lawyer herself, should not pass up those two classes in intellectual property...There is more.
Facilitating Purchase of Design Knock-offs Also of recent interest concerning the larger field of design knock-offs, a new website running by the title DUPE makes finding copies of famous furniture a virtual click away. This new site will likely soon be in the cross-hairs of major high-end designer furniture companies as it may facilitate IP violations.
For this approach to work, the DUPE site would have to research the IP status of all major furniture pieces to determine if the IP has expired or never been filed. This is far more complex than most realize because some furniture pieces have design patents, utility patents, and even trade dress protection, which runs forever. I can see IP attorneys using DUPE to reverse-search infringing products! After being an expert witness in over 75 cases related to all manner of IP, I posit that DUPE is in for some interesting times.
Neuroaesthetics and Design IP This new interest in copying the visual design of products surfaces at a time when modern neuroscience is beginning to demonstrate that the visual design of products of all types is far more important than even designers realize. As the new field of neuroaesthetics expands our understanding of visual design, corporations can expect to see the value of visual design increase in major ways. Having a robust IP strategy for protecting one's DESIGN is no trivial matter since, as noted above, there are at least 4 major IP frameworks for protecting DESIGN IP.
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Charles L. Mauro CHFP
President / Founder Mauro Usability Science
Founder and President of Mauro Usability Science / Neuroscience-based Design Research / IP Expert
11 个月I have received some comments on the back channel from colleagues about what I mean by visual design. The term "visual design" is derived from design patent law and means simply the "non-functional ornamental design" of a product. In the parlance of days gone by, this also meant product Styling. Design patents protect only how a product appears visually to the ordinary observer (consumer). CM
Industrial Designer, Design Educator, Writer
11 个月Does anyone care that the designers of the Space ripped off Donald Judd’s design? That they specified that the table “look like” a Donald Judd table. Obviously “ethics” of any kind are non existent for the designers or the purchasers. They obviously need A.I. to run their lives since they couldn’t survive without it!