COMMENT: SHOULD FURNITURE BECOME FASHION-FORWARD? APPLYING FASHION’S COPYRIGHT PROPOSALS TO THE FURNITURE INDUSTRY

11 Wake Forest J. Bus. & Intell. Prop. L. 269

Copycat furniture companies, which produce custom furniture “knockoffs” based on the designs of other furniture companies, are seeing growing success in the United States due to the lack of intellectual property protection for useful articles like furniture. In an industry already battered by offshore manufacturing and the depressed economy, the prevalence of copycat products further affects the sales of producers of original furniture designs. In order to preserve the incentive in the furniture industry to invest in creating original designs and protect against copycats, reform is needed.

As a functional article, furniture is rarely protected by intellectual property laws. Current copyright law only protects useful articles to the extent that the article’s ornamental aspects are separable from the article’s functional aspects. The various tests for conceptual separability are ambiguous and results are difficult to predict. Design patents similarly only protect new and ornamental designs where the ornamental aspect is not primarily dictated by function. The significant backlog in the Patent and Trademark Office is also a deterrent to applying for this form of protection. Trademarks and trade dress also rarely protect furniture because only a handful of designs serve as source identifiers for furniture manufacturers.

The fashion industry’s proposals for copyright reform may be the answer to the furniture industry’s woes. Fashion designers share furniture designers’ frustrations with current intellectual property law and have pushed for a number of reforms over the past decade to protect new and original fashion designs. The most recent bill, The Innovative Design Protection and Piracy Prevention Act, would have amended the Copyright Act to specifically protect the appearance of an article of apparel as well as its ornamentation for a three-year period. While opponents of the bill cited the strength of the fashion industry in spite of copycats, the same argument does not hold in the struggling furniture industry.

Recent proposals from the fashion industry could be adapted to the furniture industry to help close the industry’s gap in intellectual property protection and preserve the incentive for the furniture industry to invest in creating original designs. In order to revitalize the furniture industry and protect its original and innovative designs, the furniture industry should push for their own reforms and become fashion-forward.