When a product is referred to as a “knockoff” in intellectual property law, it is usually similar in appearance to an earlier product and considered unlawful. However, this is not always the case. A product’s “trade dress” (appearance or configuration) must be distinctive enough to be recognized as coming from a particular source.

Panitch Schwarze attorney Steven D. Lustig authored an article in The Legal Intelligencer examining a case around alleged “knockoff” furniture recently promoted by Kim Kardashian in a video. Kardashian claimed the furniture was created by Donald Judd, but it was actually a product of Clements Design. The suit asserts that Judd’s rights have been infringed because the Clements Design furniture was created to look similar to Judd’s originals. Lustig provided an overview of various cases in which knockoffs were considered infringing or noninfringing.

The case will likely hinge on whether Judd can prove the furniture has protectable trade dress. When determining whether something is an infringing knockoff, the importance of appearance to a product’s identity is a key factor in establishing that a knockoff will cause consumer confusion and therefore infringe on intellectual property rights.

Read the full article here: Knockoffs—Nuisance or Infringement? (Subscription is required.)