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Jerry Cohen

"Scaring Retailers." Who, me?

A reader recently wrote about my previous post regarding design patents, trade dress and copyright protection:     “No offense to FT or the writer but I think your [sic] being a bit naive about how to protect designs. [1]  Unless someone copies your pattern “exactly” without any  minor changes your wasting your time and $$ to go after them. [2]  Also scarring retailers who buy these products doesn’t help the retailer or the industry either. [3] I think everyone should just face the facts that it’s part of the business.

ME:     [1]  Not exactly.   I agree these are not easy paths  but  the standard of law is not copying a pattern “exactly without any minor changes.”    Take the 2007 case of  Amini Innovation (AICO) against  Anthony California, in which Amini claimed that Anthony violated its design patent for a dresser with a center cupboard.  The Court of Appeals reversed the lower court’s dismissal of the case, saying that even though  Anthony’s dresser lacked  three features of  Amini’s patented  one, “if in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same, if the resemblance is such as to deceive an ordinary observer, inducing him to purchase one supposing it to be the other, the first one patented is infringed by the other.”   Amini later prevailed in the jury trial and was awarded a permanent injunction and sizeable damages.   And there have been  numerous  other designers and manufacturers that  have obtained preliminary injunctions and settlements as reported by FT for example here and here.  Obviously the goal is to avoid litigation which is costly and time consuming; however, protection provides leverage and that’s cheap insurance.

[2]  Scaring retailers?  Information shouldn’t frighten us, rather knowledge empowers us — com’on folks, let’s pull our heads out of the sand.    In any event, most retailers have no interest in involving themselves in such disputes or intentionally violating intellectual property rights.

[3]   We are always going to have to make the business decision whether taking action makes sense in a particular context.  But we shouldn’t passively accept anything as “part of the business” if it’s having an adverse affect on the industry as a whole — both manufacturers and retailers.  Willfully knocking off designs is not business as usual; knocking-off is pirating plain and simple. But that’s just me.  Several years ago, this attitude was pervasive in the music industry regarding the sharing of music on the internet until the damage was so great that the successful challenges against Napster and other infringers were successfully brought.

Loyal readers, what do you think?  Let us know — post a comment or email me your thoughts.