BLOGS: Furniture Law Blog

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Thursday, March 25, 2010, 2:11 PM

MIG Enterprises Sues For Misappropriation Of Website Content And Cyber Attacks

Online furniture retailer MIG Enterprises ("MIG") sued several defendants for what MIG claims to be malicious attacks on its website and misappropriation of its website's content. MIG's complaint was filed March 22, 2010 in the United States District Court for the Eastern District of Pennsylvania (Case No. 2:10-cv-1249). A copy of the complaint may be found here.

In its complaint, MIG alleges that defendants misppropriated content from MIG website,, by copying product image files, copyrighted metadata, copyrighted text, graphics files, and custom-created metadata associated with specific products. MIG alleges that the misappropriated content is being used at MIG argues that in addition to misappropriating its intellectual property, defendants have been unjustly enriched by benefitting from the man hours put in to optimize MIG's website. In addition, MIG alleges that defendants have launched "sustained denial-of-service" attacks on MIG's website that render it unavailable to the public.

It will be interesting to see how this plays out in view of the Google Adwords cases.

Jack Hicks Speaks On IP Issues To High Point University Home Furnishings Class

Womble Carlyle's Jack Hicks recently discussed "IP Protection for the Home Furnishings Industry" with Professor Richard Bennington's Home Furnishings Marketing Class at High Point University.

Jack has discussed this key industry topic with Professor Bennington's class several times in recent years. He is a frequent author and presenter on intellectual property and patent issues relating to the furniture industry. For example, Jack has given several recent presentations on how companies can deal with knock-off furniture designs.

Monday, March 22, 2010, 9:20 PM

Womble Carlyle's Jack Hicks Named First VP Of AHFA's Suppliers Division

Womble Carlyle attorney Jack Hicks has been named the First Vice President of the American Home Furnishings Alliance's Suppliers Division. In this capacity, Jack will participate in the AHFA Board of Directors meetings, including the Board's upcoming meeting in Washington with elected officials.

The Suppliers Division works to improve the effectiveness of suppliers and manufacturers serving the furniture industry by addressing issues, building communications between suppliers and buyers and sponsoring programs that promote the furniture industry.

Jack spent 2009 as the Division's Second Vice President. He is a patent attorney in Womble Carlyle's Greensboro office with extensive experience counseling clients on intellectual property issues.

Thursday, March 18, 2010, 10:14 AM

Kingsdown Sues Spring Air On "Automatic Mattress Selection System" Patent

Mebane, North Carolina based Kingsdown, Inc. filed a patent infringement action against Spring Air International, LLC of Chelsea, Massachusetts on March 16, 2010 in the United States District Court for the Middle District of North Carolina (Civil Action No. 1:10-cv-00212).

The complaint alleges infringement of U.S. Patent No. 6,741,950 ("the '950 patent"), entitled "Automatic Mattress Selection System." A copy of the patent may be found by clicking [here]. The '950 patent is directed to a method and system for selection of mattresses, primarily through a pressure-mapping system involving a pressure-sensitive air mattress connected to a computer system. Kingsdown's complaint alleges that Spring Air's "Comfort Silhouette Imaging" system consitutes "contributory and/or induced infringement" as well as direct infringement. Under recent case law applying the Supreme Court's Iqbal decision, it is doubtful that Kingsdown's contributory and induced infringement claim would withstand a motion to dismiss as it fails to identify the other parties involved in the infringement and how Kingsdown induces or contributes towards their infringement.

Kingsdown is represented by Mark Thomas of Williams Mullen.

Tuesday, March 16, 2010, 10:54 AM

Jack Hicks To Discuss Design Protection & Copyrights At Global Intellectual Property Academy

Womble Carlyle attorney and Furniture Law Blog Co-Author Jack Hicks is among the speakers at the Global Intellectual Property Academy Patent Industrial Design Program. The three-day international event (March 16-19) is organized by the U.S. Patent and Trademark Office.

Mr. Hicks will be speaking on "Design Protection Through U.S. Copyrights: Industrial Design or Applied Art?" His presentation is scheduled for March 19th.

The Patent Industrial Design Program will be held in the Global Intellectual Property Academy office, located in the James Madison Building, in Alexandria, Virginia. The event draws intellectual property law experts from all over the globe - for example, other presenters hail from Costa Rica, Pakistan, Slovakia, Jamaica and Bulgaria, just to name a few nations represented at the event.

Jack Hicks is a licensed patent attorney who assists clients in determining the type and scope of intellectual property protection that is best suited for their business goals. Named as one of The Best Lawyers in America, Mr. Hicks counsels clients in a wide range of industries, including those involving furniture, home furnishings, general mechanical, electro-mechanical, manufacturing processes, chemical and "business methods." He is a frequent speaker and author on patent issues. Mr. Hicks practices in Womble Carlyle's Greensboro, North Carolina office.

Monday, March 15, 2010, 2:32 PM

Federal Circuit Clarifies Test For Design Patent Infringement – Factoring Out Functional Elements

On March 9, 2010, the United States Court of Appeals for the Federal Circuit issued its opinion in Richardson v. Stanley Works, Inc. (Case No. 2009-1354) (Lourie, J.). In its opinion, the court clarified the claim construction process when the claimed design includes functional elements. In doing so, the court confirmed that the infringement analysis still involves a comparison of the overall designs.

In Richardson, the plaintiff/patentee filed an infringement action against tool manufacturer Stanley alleging that Stanley’s "Fubar" design infringes U.S. Patent No. D507,167 ("the '167 patent") for Richardson’s "Stepclaw" tool. The '167 patent claims the ornamental design of the tool depicted in figures 1 and 2, shown below:

Stanley obtained U.S. Patent No. D562,101 ("the '101 patent”) on the basic Fubar design. All versions of Stanley’s Fubar are built about Stanley’s patented design. Figures 1 and 5 of Stanley’s '101 patent are shown below:

After a bench trial, the district court entered judgment of noninfringement in favor of Stanley. In its order, and as part of claim construction, the district court distinguished the ornamental aspects from the functional aspects of Richardson's design and then determined that an ordinary observer, after discounting the functional elements of Richardson’s design, would not be deceived into thinking that the Fubar tools were the same as Richardson’s Stepclaw. Richardson appealed.

On appeal, Richardson claimed that the district court erred in its claim construction by separating the functional aspects of the design from the ornamental ones, rather than considering the design as a whole, citing Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008). Richardson contended that a design element is purely functional only when the function encompassed by that element cannot be performed by any other design. Further, Richardson contended that the overall design of the '167 patent is not dictated by the useful elements found in the tool, and that the functional parts of its design remain relevant to the scope of the patented claim.

The Federal Circuit disagreed with Richardson. The Federal Circuit affirmed the district court’s claim construction, holding that where a design contains both functional and non-functional elements, the scope of the claim must be construed in order to identify the non-functional aspects of the design as shown in the patent. In addressing Richardson’s interpretation of Egyptian Goddess, the Federal Circuit stated that in that case, which abandoned the point of novelty test, the ordinary observer test should serve as the sole test for infringement. Although Egyptian Goddess proposes that the preferable course ordinarily for a district court is not to attempt to construe a design patent claim, there are a number of claim scope issues on which the court's guidance is useful to the fact finder. Among them is the distinction between the functional and ornamental aspects of a design.

The Federal Circuit held that with respect to the ‘167 patent, the district court properly factored out the functional aspects of Richardson’s design as part of its claim construction. Recognizing that a multi-function tool, such as the Stepclaw, has several functional components, the court made clear that only the non-functional ornamental designs of the article are eligible for design patent protection. The design of several elements of the Stepclaw, such as the handle, hammer-head, jaw, and crowbar, are dictated by their functional purpose and thus are properly separated out during claim construction. Further, the court added that while drawings are of "decisive importance" in design patent cases, district court's may use the drawings to explain functional and ornamental features.

Applying that claim construction, the Federal Circuit held that the district court properly held that the Stanley Fubar did not infringe the ‘167 patent. The court rejected Richardson’s contention that had the district court conducted a three-way comparison between the prior art, the patented design, and the accused products, it would have found the accused product design to be substantially the same as the patented one. Rather, the Federal Circuit agreed with Stanley’s contention that the only similarities between the patented design and the accused Fubar tools were those of unprotectable functional elements. However, the court stated that for infringement, the test is whether deception arises as a result of the similarities in the overall design, not of similarities in ornamental features in isolation. With respect to the Fubar and the '167 patent, the court found the design (non-functional) elements of the Fubar are significantly different from the '167 patent's ornamental elements. Thus, the "accused products embody an overall effect that cannot be found in the '167 patent design and hence cannot cause market confusion."

A copy of the decision may be found by clicking [here].

Thursday, March 4, 2010, 6:25 AM

Bernhardt Files Declaratory Judgment Action

Bernhardt Furniture Company, based in Lenoir, North Carolina, filed a declaratory judgment action against patentee Dario Cesar Antonioni in the United States District Court for the Western District of North Carolina (Statesville Division) (Case No. 3:10-cv-81) on Mar. 1, 2010. Bernhardt filed the case in North Carolina after Antonioni filed an infringement action in the United States District Court for the Central District of California on Feb. 10, 2010.

The declaratory judgment action sets forth an interesting chronology of events. While Antonioni claims to be the sole inventor on U.S. Design Patent No. D527,196, filed Sept. 23, 2004, Bernhardt claims that independent furniture designer Jeffrey Bennett designed Bernhardt's accused furniture, the Balance collection. Bernhardt further alleges that it has documentary evidence the predates the '196 Patent's earliest claimed priority date and that Antonioni was provided with documents that should have been provided to the Patent Office. In addition, Bernhardt alleges that the '196 Patent is invalid for leaving off a co-inventor.

An image from the '196 Patent is below:

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