The Designers’ Eyes

June 30, 2008  by in UnCategorized   

By Home Furnishings Business in on July 2008 The old joke about furniture knockoffs used to be “design by Polaroid.” These days, it might be better phrased “design by digital.” Bill Faber remembers some knockoffs that involved even lazier efforts for lookalike furniture—taking a page, literally, from a manufacturer’s catalog.

“In the late ‘90s, a manufacturer might buy a piece of furniture, take it to China and knock it off,” said Faber, vice president of wood product design for Century Furniture and the creator of several collections that have been imitated in the marketplace. “It was more piecemeal than entire collections. We had people doing furniture design by ripping pages out of catalogs.”

Faber believes furniture knockoffs peaked around 10 years ago, but another point of view is that current economic conditions and their effect on the furniture business continue to make copycat furniture an issue for those truly creative companies in the industry.

“I don’t believed it’s changed much in recent years—success breeds knockoffs, especially when the economy is tough and fewer products receive recognition in the marketplace,” said Max Shangle, chairman of the furniture design program at Kendall College of Art and Design in Grand Rapids, Mich. “It’s a function of the economy, but it’s also a function of laziness.”

Shangle, who serves as an expert witness in product liability and design infringement cases, has seen his share of knockoff cases from both the plaintiff and defendant point of view.

“If I have a message here, it’s that in the long run knockoffs don’t help retailers, they don’t help consumers and they don’t help manufacturers—the only ones they help are the ones doing them,” Shangle said. “They don’t move the industry forward. We always need new, better designs—we don’t need copies. At the end of the day, where it’s tolerated is out in the marketplace.”

RIDING COATTAILS

Scott Coley and his design partner, Tom McDaniel, have created collections for numerous furniture vendors, including three Pinnacle Awards winners for their work with Bernhardt, Charleston Forge and Madison Square.

“I’ve seen dead knockoffs of some of our work—not only individual pieces, but full collections—multiple times,” said Coley, who’s based in Morganton, N.C. Knockoffs, he said, “continue to be a problem. If your create something less expensive that’s confusingly similar to a higher-cost collection, it shortens the life span of the more expensive product. That first piece that comes out is not going to be the cheap date.”

One issue is that many furniture collections are based on historical styles that have a long precedent. Can anyone really knockoff, say, a Louis Philippe collection?

“Louis Philippe is a really good example,” Coley said. “There was a historic period when the original product was made and that led into things like American Empire and Directoire. Anyone can pull historic elements out of the antiques without it being a knockoff.”

Shield hardware, for example, has a historic reference that would make it fair game for use in a collection.

“What makes it a knockoff is when you’re not inspired by historical reference,” Coley said, “but reproduce exactly someone else’s interpretation of that period”—that is, a dead knockoff.

Faber also believes there are ways to develop collections in traditional styles that put a distinctive twist on familiar forms.

“When you’re designing period pieces, you’re relying on antiques, architectural elements and the style of the day,” he said. “I try to be innovative in terms of finish, hardware and veneer treatments but keep true to the design theme. If you’re doing a Chippendale or Charles X collection, it has a certain look or flair, but you might use a new format for the doors and drawers. Each manufacturer can do that. It’s not necessary for people to knock off a French Country, Louis Philippe or Shaker group.”

Shangle has no doubt that collections based on historical styles inspire goods from other manufacturers that qualify as knockoffs.

“It goes back to the source of original inspiration,” Shangle said. “Thomas Chippendale, for example, was a fabulous designer, but he never designed a console for a flat-screen television. That style can be adopted into a new interpretation for the market today. A knockoff of that piece doesn’t have that resonance. It has the ability to reproduce the intent of the original design, but not the soul of it.

“Collections based on historical styles do get knocked off,” Shangle added. “Someone might say, ‘If I need a Chippendale console to round out a collection, all I do is model it after someone else’s.’”

Even in the case of a historical style, though, one collection doesn’t have to be a dead ringer of another to be a knockoff in Coley’s eyes.

“When it’s confusingly similar to an existing collection for the person out there buying a piece of furniture, I think it’s a knockoff,” Coley said. “If drawer configurations have similar if not the same moldings, a similar if not the same foot, it’s confusing to the consumer. It doesn’t have to be exactly the same, but a similar finish or hardware location. But that’s not something you can take to court.”

WHAT’S THE RECOURSE?

One problem with knockoffs is the sheer expense involved in litigating such cases.

“The problem is it’s very expensive to defend your rights,” Coley noted. “Your patents have to be good, and even then they’re pretty hard to defend, and when you can defend them it’s very expensive. Beyond a cease-and-desist letter from their attorney, companies tend not to defend their patents and designs.”

Shangle has spent his share of time in court and with attorneys as an expert witness, and he said pursuing a knockoff all the way through court can easily run to $1 million.

“The law doesn’t favor one side or another,” he said. “What it does is favor the (legal) process. ... Designs are as well-protected as we can ask them to be from an aesthetic standpoint. In a very broad, generic sense, a lot of collections look alike, and they look like things from the past. It’s a question of to what degree they look alike, and to what level were the elements combined?

“To defend that (design) is very, very expensive, as is defending yourself against an accusation, particularly if you’re a freelance furniture designer. Not only is your current product suspect in the eyes of the manufacturers, so is everything else you’ve ever done.”

There’s also more settled out of court than what meets the eye.

“If I’m a freelance furniture designer and I’m looking at between $500,000 and $1 million—those are very real numbers—or if I’m a manufacturer of a successful collection and I’m going to sue to protect it, can I afford to do so?” Shangle said.

MAKING THE CALL

The Kendall College’s furniture design curriculum includes an examination of knockoffs and what designers can do to better protect their designs, and also avoid copying someone else’s.

“We have in-depth class discussions of the consequences knockoffs have for the industry. Knockoffs don’t do anyone any good expect for the person doing it,” Shangle said. “From a design standpoint, we look at what to do and how to protect. What are the extreme costs if you are knocked off? Documenting, dating work, keeping good records, using original source inspiration helps. The first question is, how do you know your work was first?”

Aesthetic patents are very difficult to acquire versus functional patents, but there are ways to work protectable function into the design.

“If I take an original footstool and it becomes a dining room table, and I can prove that it hasn’t been used that way before, I can defend it,” Shangle said by way of example.

Eventually, though, it boils down to a money question.

“If I defend this design, and it has a three-year life, and I have two years left with it, is it worth litigation?” Shangle said. “The reason companies sue for design infringement is to slow down the process of that (infringing) product challenging their product in the marketplace through a cease and desist order.”

Such orders can be issued before a final judgment and set up at least a temporary roadblock to sales of the alleged knockoff merchandise.

“That’s often the goal, since in terms of the money spent, it’s considerably cheaper—maybe $100,000. If that order stops or slows down the knockoff in the marketplace, that’s important,” Shangle said.

Sometimes, though, it’s necessary to carry litigation through its full course.

“If you’re talking about a significant signature brand, when people see a particular product as that company, the manufacturer almost has a duty to defend its own brand,” Shangle said.

Faber believes in using Century’s own manufacturing capabilities to ensure a unique product.

“Better veneers, better finishes and better hardware—that’s what makes it unique to your company and sets it above the competition,” he said. “I look at it a little differently—I think a knockoff is a form of flattery. If we are knocked off cold, you’re a little shocked. My thought is the first one one there in the marketplace is always the best.”