The growing market place for rip-offs.
More and more when you look around we encounter a diverse range of products that are rip-offs of original designs. Technology is making it easier and easier to replicate the genius of others, but should it be happening?
In our world of branding and graphic design, we are super sensitive to ensure that when exploring the world of design for stimulation, it is only ever for kick starting the creative juices and never for mimicking. We respect both the work of others, and also the rightful expectation of our clients that they will receive an original design outcome that meets their brief. Originality is valued and expected.
However, there is no doubt there is a big market for ‘knock offs’ in other categories, and nothing more in your face than some furniture retailers. Perhaps we are being a bit harsh by using the term ‘knock off’s, rather than the preferred language of the furniture world of ‘replicas’.
Our interest in the topic has been aroused by the incessant weekly advertising by furniture retailer Matt Blatt, who promotes designer furniture replicas with the following disclaimer:
Matt Blatt’s replica products are not manufactured or approved by, or affiliated with, the original designers, manufacturers or distributors including Herman Miller, Charles or Ray Eames, Knoll, Fritz Hansen, Flos, Studio Italia, Giogali, Artemide Spa, Futura S.r.l., Brand Van Egmond, Tolix or Xavier Pauchard.
Blatt’s approach raises a number of issues and none more so than the legalities associated with seemingly selling someone else’s designs. A conversation with Ben Hamilton, IP Partner at leading Melbourne law firm Hall & Wilcox, suggests that Matt Blatt appears to have a very good handle on where the law sits with such matters. Generally, when someone sells an item which looks similar to the original item, there are two types of legal claims that can be relied on: intellectual property and misleading and deceptive conduct. Both have different challenges. The former often requires taking steps to register the intellectual property so, without a registration in place, there can be no protection. With misleading and deceptive conduct, one has to demonstrate consumer confusion, which can be difficult. Hamilton pointed out that while a Design Registration does provide legal protection, it only has currency for a 10-year period. Once the registration has lapsed, the designer is left with having to establish that the competing item causes confusion in the minds of the public that the goods being sold are the original design or associated with the original design.
Clearly, given the above disclaimer by Matt Blatt, they know exactly where they stand. In fact, to their credit, the buyer is left in no doubt that they are buying a fake and not getting anything like the quality or prestige of the real thing.
However their communications have not always been as noble. In 2011 American furniture maker Hermann Miller took legal action against Matt Blatt for misleading consumers as to the authenticity of a range of Eames designed furniture that they were selling. Hermann Miller has the design rights to produce and sell Eames originals.
The result was an out of court settlement and the introduction of the above disclaimer. While the terms of the settlement were confidential, the statement at the time makes Hermann Miller’s thoughts on the matter very clear: ‘…we’re happy and we think all manufacturers of original and authentic designs will also be happy that we have been able to win this small but significant battle for the ethics of authentic design.’
There is no doubt a question of ethics at play when design knockoffs, passively or otherwise, pass themselves off as the real thing. But if they declare to the world that they are replicas, and any relevant design registrations have lapsed, are they not doing the average punter a favour? To be able to have a stylish piece of furniture that may be $5,000 less than the original is surely a rather egalitarian gesture on their behalf.
However, there has to be more to the world than simply making every conceivable product or service more cheaply. In Australia it is not only the creative community that is potentially disadvantaged. Many food manufacturers are seeing their investment in product development gobbled up by the supermarkets who come out with their copy cat cheaper private label offerings. Likewise over the years the fashion industry has had to contend with an amazing array of rip-offs.
According to Ben Hamilton, protecting one’s IP is only going to become more challenging into the future, as the world gets smaller. More and more businesses have an international footprint, and all businesses that trade online are potentially exposing themselves to many different legal jurisdictions. From Hamilton’s perspective individuals and businesses need to think strategically as to whether they will actively seek to protect their IP, or leave it to the whims of the market place. The cost of registering a trademark or a design is not prohibitive, and once it has been taken out, the originators at least have the option of taking action to protect themselves against deliberate rip-offs. In many respects it is like insurance. It is a cost, but like most of our insurances we hope that we will never have to use them.
The interesting thing is that we all get to have a say in rewarding and protecting great design. We all get to decide whether we buy the real thing or the fake. The shopping frenzy that accompanies Christmas provides a superb opportunity to celebrate original design. Choosing to make our own mark by purchasing authentic designs that capture our imagination is a powerful and positive gesture in promoting the creative talents of this world.
Our Christmas wish to you is to give yourself a treat – go and buy yourself something truly remarkable.
Peter Singline and David Ansett are co-founders and directors of Truly Deeply, a Melbourne based brand strategy and design consultancy.
