• What: Design Evenings: Knockoffs Panel Discussion • July Guests: John Edelman, CEO of Design Within Reach Kate Hable, co-founder of Hable Construction Alan Heller, founder of Heller Inc Marc P. Misthal, attorney at Gottlieb, Rackman & Reisman • Attendance: 269 This was our biggest panel discussion yet, and it was thrilling to have four such distinguished guests. Knockoffs as a subject is so complicated and controversial that it made for a lively discussion among our guests. Read all about our evening below, and please join us in September for our next New York Design Evening at ABC Carpet & Home!
l to r: John Edelman, Kate Hable, Marc Misthal, Maxwell Gillingham-Ryan (missing: Alan Heller) This month's meetup was kicked off again by Ken Pilot, Executive at ABC Carpet & Home. In a fitting introduction to our panel, he talked about real vs. fakes when it comes to what ABC Carpet carries in its store, and that they deal with this dilemma often. It's pervasive throughout the design world yet hasn't been talked about much in realms outside of fashion, so it's of great importance that we're talking about it this evening. Maxwell Gillingham-Ryan: Thank you everyone for being here. So a quick back story to my own personal experience with knockoffs - when I first started as a designer and was working with clients, I was always happy when I could find them "affordable" pieces. The whole idea of whether or not it was a knockoff piece wasn't as top-of-mind, but fast forward to today and I'm a lot more aware of it, including affordable alternatives that are not knockoffs, which is important and something we'll most likely touch on this evening. So, let me introduce our panel, from left to right:
Marc P. Misthal is a patent and trademark specialist at Gottlieb, Rackman & Reisman. He specializes in all areas of trademark and copyright litigation and prosecution, and has extensive familiarity with domain name and Internet issues. Mr. Misthal has contributed to the Aspen Law & Business treatise, Trademark Counterfeiting, (George W. Abbott, Jr. and Lee S. Sporn, eds. 1999); and he is the author of Reigning in the Paparazzi (10 International Legal Perspectives 287, Northwestern School of Law ). More recently Marc, along with George Gottlieb, contributed an extensive chapter on intellectual property to the newly released book Fashion Law: A Guide for Designers, Fashion Executives and Attorneys. The book takes a practical approach to addressing legal issues. It is the first book to comprehensively examine, in one volume, those areas of the law implicated in the fashion business (including, in addition to intellectual property issues, franchising, distribution, rentals, leasing and import/export). Fashion Law, published by Fairchild Books, is available from Amazon.com, Barnes and Noble and other booksellers. John Edelman joined Design Within Reach in January 2010 as President and Chief Executive Officer. He has more than 20 years' experience with consumer-focused lifestyle brands, most recently at Edelman Leather. During his 14-year tenure at Edelman, six years as President and CEO, he exponentially increased its brand awareness, sales and profits as the leading national provider of premium leather to the home furnishings industry. He was instrumental in leading the sale of his namesake company to Knoll, Inc. in October 2007. Prior to joining Edelman Leather in 1995, Mr. Edelman spent seven years at Sam & Libby, Inc., where he was responsible for its U.S. business. Kate Hable is co-owner of Hable Construction with her sister, Susan. Her academic background in journalism, marketing, and sales management at Polo Ralph Lauren and Kate Spade refined her skills in co-owning the company with her sister, Susan. She was born and raised in Corsicana, TX, and currently resides in Brooklyn, NY. As the entrepreneurial force of the company, Kate is influenced by the independent and hardworking women around her, and inspired by her sister's artistry. Kate also realized the benefits of starting her own company which afforded her the freedom to be a mom, wife, and her own boss. Alan Heller founded Heller Inc. in 1971. The company's philosophy is good design, industrial production, and reasonable prices. For over forty years, Alan has collaborated with some of the world's leading designers and architects, including Massimo Vignelli, Philippe Starck, Vico Magistretti, Mario Bellini, and Frank Gehry. Heller products have received numerous prestigious design awards, including two Compasso d'Oro's, Italy's highest design award, and Germany's Red Dot and IF Design awards for technology. Heller products have been exhibited and included in the permanent design collections of museums such as the Louvre, MoMA, the Metropolitan Museum of Art, the Cooper-Hewitt National Design Museum, the Smithsonian Institution in Washington, the Victoria and Albert in London, and the Pinakothek in Munich, among many others. Throughout his career, Alan Heller has worked closely with manufacturers of innovative technologies both in Europe and the U.S. Alan Heller holds a number of patents, including one for his new invention ErgoErgo, a revolutionary chair based on plastics technology which won the Good Design award even before being launched in the market. He has consulted on technology for various companies. Alan graduated from The New School, N.Y., with a BA in economics and lives in New York City with his wife, Barbara Bluestone. Maxwell: Just so everyone knows, I tried to get a fifth panelist, someone who actually makes knockoffs - I tried three different people and they all backed out. So, let me start by asking you all how this issue has affected your own lives? Allen: I've always worked with major designers, with a focus on industrial production. We look at price as it compares to the production cycle and try to find how we can make the absolute best product within the required price point. There will always be copies, they're just out there. But you don't have to buy a copy to get a "designed" product. Many of our least expensive products are actually carried at Design Within Reach. Their wholesale prices would make Wal-Mart laugh, but the key here is that we want to create good product and won't sacrifice that. The first product I produced was a dinnerware line in 1971, which is still in production. At one point I think there were 34 copies of it out there. This particular line is in MoMA.
Kate: For me, as a textile designer, we're in a bit of a different realm, as people can easily copy 2D work. We produce our goods domestically, so our prices will always be hire - but we've made the choice to produce in the U.S. and use U.S. workers and we're proud of that. Along with that comes the higher price. We've sued and won two major lawsuits with department stores. They came about because designers knocked off our textile designs. People just Xerox our fabrics and then manufacture them in China, but luckily, we have great customers who have actually seen this and brought it to our attention. In fact, a friend of my sisters from Parsons called us a while back - she almost lost her job because she told us that her company was Xeroxing their designs. John: This issue affects us on a daily basis. Our main goal is to make sure our clients aren't confused - therefore, we want people to know that we carry zero knockoffs. There are other companies which have lines that are similar to ours that are knockoffs - it's unfair competition and it's confusing for the client. We can't blame people for being confused, it's too easy to use these similar names to find a market at a lower price point, and much lower quality. Maxwell: Now, DWR used to have a mix of product, correct? John: Correct. At the beginning, Knoll wouldn't sell to us - they are very, very strict with who they license to, as they should be, and when DWR started they didn't know how legitimate we were as a new player in the space. So we started offering knockoffs. And as we grew and they realized we were a legitimate company, they gave us the license arrangements and we stopped carrying knockoffs. Originally the company really wanted to have "modern within reach", so they did what they had to in order to reach that company goal. You know, in general, creative people have demands. It's our job to find a way to work with them. Maxwell: So Marc, you're on the other end of this - you're the one who's called when a designer finds a knockoff of their work. Tell us how a knockoff is defined in legal terms? Marc: There are a few factors we take into account, but mostly it comes down to what a piece looks like. Is it a "good" knockoff, meaning that it looks exactly like, or as good as, the original? Or is it "influenced" by a famous piece yet has its own distinct look? To be honest, there isn't a really good legal definition. The big question here comes down to rights - that is, if you have rights to something, what are they? Our best legal test is the visual test - if you put two pieces side-by-side, do they look similar? Is it hard to tell them apart? Is one a "good" knockoff of the other, or is it "influenced" by the original? It's subjective, but this is mainly what we use when looking at knockoff cases. Maxwell: And what about if a bag has a Hable Construction logo? Marc: That's considered trademark infringement, which is something a bit different. That's more to protect the consumer than the designer. Maxwell: What about the shape of a chair or table? Marc: The first question is how is it protected? Patent or trademark? The question with Trademark is, Is the consumer going to be confused? With a design patent, that is more to protect the designer and his/her design. Maxwell: So you're a small company knocked-off by a big one. Is it expensive to sue? Marc: The main way Katherine won her lawsuit is because she had a Copyright, and Copywrights are cheap. She spent $35 and was covered, end of story. They're easy to get online, and any work you create can be covered. Kate: One of the lawsuits involved a print we call the "Poppy". We had pictures of it in the press three years prior to the creation of the knockoff, so that helped. Also, we had registered the yardage - someone knocked it off in a wool appliqué version, but it was clearly the same hand. All of our work is hand-created, it looks much different than a digital creation, thus it's easy to spot our own. Maxwell: I'm thinking about other items that are questionable in terms of knockoffs, for example, a slab table. One would have originally thought Nakashima, but you see these tables all over now. It's so basic and natural in its form, can that be considered a knockoff? Marc: Copyright protects works that have a small modicum of artistic expression. A detail that makes it what it is, if you will. That may not be the case here. We may have patents coming into play. John: The minute you add a name to something, it's different (logo) - think of fashion where this is ubiquitous. In furniture, you don't always have that type of mark or signature, so it's a bit more difficult to discern from a legal standpoint. Marc: True - in fact, if someone copies a logo, that's a lot easier to defend. Maxwell: What about an Eames lounger? Or a Saarinen table? Marc: These are iconic pieces. Herman-Miller has a Trademark registration on these items that they actively police. They go to court all the time for these issues - with a Trademark, you have to police it, it's a bit of work. Maxwell: I'm just thinking about places like the one across the street from here. They pretty much exclusively carry knockoffs. Marc: Remember, a design patent lasts 14 years. A trademark lasts for as long as you use it, so you can't get lazy, you have to police it. SLIDES: Marc:
This first slide shows the Coca-Cola bottle shape and look, which is trademarked. It was issued in 1977, and Coke's been using it since 1916. They must re-register the TM every ten years and pay a fee to do so.
Here's the Tizio lamp which is trademarked (designed by Richard Sapper for Artemide in 1972).
Barcelona chair, which is trademarked. Maxwell: Does a manufacturer escape lawsuits if they create a knockoff that isn't called the Barcelona chair? Marc: No, it doesn't matter, going back to the visual test.
Here's a good example - this is a block print by Galbraith & Paul, whom we represent. Their design is on the left, and then you'll see a lamp from Ruby Tuesday on the right. Well, the Galbraith & Paul folks were at a Ruby Tuesday with their families one night and called me from the restaurant when they saw these lamps. They sued Ruby Tuesday for the use of their fabric. Another great fact about having a Copyright certificate - you can recover the attorney's fees, which is huge, as you can imagine.
Here's a quilt artist who's a client of ours. On the left is a hotel carpet, on the right is her product. She was at a large quilting convention in Houston and people were congratulating her as she walked by - the hotel that hosted the event had knocked-off her carpet. Allen:
The grey chair (left) was developed by industrial production - it's a gas-injection molding that is one of the first of its kind. We worked on the technology for 18 months. I went to Italy to work with Mario Bellini on how to design a chair using this technology (a bit of a backwards process, but it worked). The reality is that in China, there are knockoffs of everything. In many instances, they are almost exactly the same. In this particular knock-off, the copies aren't gas-injected, and they aren't made with fiberglass and polypropylene.
On the right are cubes made by Frank Gehry. They mimic his architecture, and he has copyrights on this. John:
You know, many people don't realize that when they choose an original, particularly one that is knocked-off a lot, its worth grows over the years.
Cassina Chair - this is not the same quality as a knockoff, it simply can't be done. Maxwell: I think some people fear that the license allows you to charge more. John: It's not the license, the difference is actually in the physical product.
This was out of production for a while, and so we went to the family of Finn Juhl to see if we could create it again. It is stamped and authorized by them.
This is actually a Panton piece that's launching this week - it is an original that's been blessed by Mrs. Panton. A Panton by Panton, and a licensed original.
I love this because it's a fun color shot! When you think about it you have to ask, who's going to find the next originals? It's us (DWR), Knoll, Fritz-Hansen - not the knockoff folks. Knockoffs just confuse the consumer and slow down the New Development process (as we fight patents and trademarks for original pieces).
This is one of our fabrics that's been knocked-off a bunch. We found it once as a knock-off in pink suede. You know, you just have to keep moving forward with your design and not get bogged down by the knockoff mess. But it's tough - we're very connected to our own work, and it's really hard to see what happens out there. The main thing I want to share with everyone is to Copyright - Copyright everything. That's what saves you and makes the lawyers' jobs a lot easier. If you're a student and find it too expensive to Copyright, then batch your images - create thumbnails, call them "Katherine Series 1" for example, and Copyright that series (100 thumbnails for $35).
Bead pattern. This is, unfortunately, not able to be Copyrighted, so it's been knocked-off a million times. It's just a pearl necklace that's been laid down and drawn - it's beautiful, but it can easily be knocked-off. I received an email this week about an online store that copies us a lot. I called them and said I knew what they were doing and didn't want to cause a lot of hassle (since these items aren't copyrighted) so I asked them to donate their proceeds to Habitat For Humanity - instead, I noticed they put the items on sale this week.
Poppy pattern. This one is Copyrighted, and, as I mentioned earlier, we were able to use the press from years earlier in our lawsuit.
Stripes. Someone accused us of stealing from her. We owned this many years before her and had it Copyrighted. Again, Copyright!
An array of our products.
Inspiration series. You know, the furniture business is shady (sorry, guys). We're affiliated with Hickory Chair and I can just say that a lot of the folks we've spoken to are shady and it's hard to find good ones.
John: You're right. In fact, none of us at DWR have ever been to High Point because of that - it's so highly copied and commoditized. Allen: I've never been there either - we refer to it as "Low Point". Maxwell: We went for the first time a few years ago. There were these big doors at every showroom. You must have an appointment, and they need to escort you in. It's really shady and everyone is very nervous. They just don't trust anyone coming in the door and think everyone's going to copy what they have. John: Yes, and meanwhile, in Milan, you can do anything and go anywhere - the looks are all so original and bold that there's no way one person can copy another. Unlike High Point, where the looks are so generic that copying is a lot easier. Maxwell: So who are these people? Manufacturers in China? Designers at big companies that just don't tell their bosses where the idea came from? Kate: There's the person who wants to do something similar, or in the "likeness" of. And then there are the body snatchers, and they're bad. It's tough because sometimes it's just the color, or "essence" of a piece, and that's when it gets confusing for the consumer. Marc: Trademarks are better because you get a piece of paper from the government. You get a much different response to a request when you have that official piece of paper to back you up. John: There's a term called "value engineering" - it's from the hotel industry, and it means that they take an original design for a space and then find a much cheaper way to create it. It's malicious if they pull it off as real. Ken (from ABC): I was with Gap for 13 years, so I have to say, I'm very familiar with "interpreting" styles. It's very prevalent in the fashion world as was mentioned at the beginning. Marc: I think one of the huge problems in this is the internet. Of course, on the flipside, as a lawyer I love it - it's given us a lot more work to do! Q&A WITH AUDIENCE
Question: So I have two comments. First is regarding the copyists, those major brands that are out there that have a market for this type of duplication, which is why they are in business. They'll probably never go away. The second is that there's a company called Shapeways (shapeways.com) that produces 3D printed objects. It gives small designers access to classic design and allows them to copy them a lot easier. Basically, anyone can go online and get a product created. Should we be worried about that? John: Well if it's an original design we should applaud it - that's good for us all to get more original design to market. Question: Hello, I'm new to design and I have two questions on this topic: first, after hearing this discussion I now understand why certain products cost so much, but I'm wondering - if someone can't afford an original now, would you want to completely turn them away? In other words, if they buy a knockoff now that may not mean they'll buy a knockoff in the future, so you may not want turn them off? And also, in a perfect world, if there were no knockoffs, would that be a bad thing? Marc: Let's think about this - if there were no knockoffs, people just wouldn't buy things they couldn't afford. This is the way it was throughout most of history. John: And to add to that, there are beautiful $400 tables out there that aren't knockoffs, so why buy one at the same price point that is? Kate: Exactly. There is beautiful design at all price points. John: Target has approached this idea head on by bringing in big designers to create affordable lines. Question: There is this beautiful book that is called The Future of the Past by Alexander Stille. In the book, he talks about Chinese museums that sent copies to US museums when they were putting together a show. The US museums found out and were extremely upset, and the Chinese museums didn't understand why. In reading this, I wondered if this is also a cultural debate - in other countries, perhaps they don't worry about knockoffs as much as we do? Maxwell: Along these same lines, the (NY) Times reviewed an Apple store in China that was an exact knockoff of the US stores, even down to the employees' clothes. Kate: I don't have much experience in this, but I do know that many of these manufacturers really are just copying and don't even think about design - for example, if you want something in a specific size, say 20x20, they will literally make it that way, even if it doesn't scale square. They don't look at it, they just create it, exactly as you ask, without these considerations. Maxwell: So this is a good question - does authenticity matter? Is it just a U.S. issue? Allen: One of the most destructive forces here is Wal-Mart. We hear a lot about them, but it's true - they don't care about the integrity of anything. They encourage a disposable, throwaway culture. I don't think China would be in business if there wasn't a demand. John: There is a huge trend in China on Brands. Japan was the first with knockoffs and now they're into Brands. China is there now, too. Question: Is this somewhat driven by class? And status? High class will always be costly, so is the idea that some may just never get there? Maxwell: Allen, you started with affordable design, meaning it is possible, and we have been making that distinction tonight - that original design is very accessible, people just need to consider that before knockoffs. John: We have a new chair coming out from Alessi - it's a $200 folding chair. We also have plywood chairs at $129. There are affordable, well-made, original designs out there. People just need to think about this when purchasing. Question: I'd like to go back to the Ruby Tuesday example. The designer shows the client something that ends up being too expensive and a long lead time. The client then goes to the internet instead and finds an alternative and purchases it. How much is the designer responsible for that? Kate: Well many times the designer doesn't even see the final purchase if that's the scenario, so it's not their fault. Although in reality, they should offer up other alternatives that are original and still work with the overall plan so a viable option is determined. In the end, we as designers need to educate our clients, but in the end, if they go ahead and purchase something without your knowledge, it's not your fault. Maxwell: In the end, going with knockoffs really is a poverty of the imagination. We didn't talk about Ikea here - but there are choices that are not copies, and people just need to start educating themselves about them. Thank you, everyone. • Special thanks to Kayne Elisabeth Rourke for transcribing our Meetup! • Special thanks to our volunteers, Georgie Hambright and Amy Patrick! • Images: Matt Pokorny
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