LISA'S PICK: Knoll Brno Chairs $795

RETRO Authentic, stainless steel Knoll office chairs.

Chinese Wool Rug $75

Mission Dresser - $395

Early 1900s oak, excellent condition. 46" x 40.5"

Mission Oak Vanity - $275

Early 1900s, original mirror with distinctive crackle pattern. $275

Antique Walnut Empire Dresser $475

Early 1900s walnut dresser with original glass knobs.

Retro Glass & Chrome Medical Cabinet $195

"The Sterilizer"

White Wicker Dresser $125

Excellent construction with all real wood inside drawers and frame. $125

Mahogany Chest $125

1940s

Baldwin Spinet Piano / Bench $375

Great looking Baldwin piano with bench. Our tuner checked it out and said the inside looks excellent with hardly any wear, which means it was hardly ever played. Tuner can move the piano to your house and do the tuning for an additional fee.

Pine Bedroom Furniture

We actually have a dresser (pictured) ($95), small chest ($55) and night stand ($30) in this style. If you buy the whole set you get a deal at $160 for the set.

Solid Cherry Buffet $195

Excellent condition. Cherry is such a smooth, beautiful wood - you are lucky to be able to grace your home with it.

Mahogany Leather Top Desk $95

Solid wood with a beautiful top!

Contemporary Decorative Wine Rack $65

Excellent condition! Perfect for space saving corner storage.

Painted Mahogany Night Stands $70

Pair for $70 or sold separately for $35 each.

Shaker Style Dresser $95

Wow, it's BUSY!

Furniture donations are pouring in and selling almost as fast! We are so busy here and we apologize for not updating the blog as much right now. This just means you should come on down and catch the furniture donations coming off the truck. Most of it is selling right off the sidewalk!

LISA'S PICK! Antique Brass Bedframe - Full Size - SOLD

Beautiful antique, solid brass and very heavy. Excellent quality. Complete with side rails. $150

Espresso Leather Queen Bedframe SOLD

Complete with siderails.

Chaise Lounge SOLD

Neutral tan microfiber. It's about time you put your feet up. Relax with a book. $175

Large Espresso And Cut Glass Mirror SOLD

Gorgeous mirror with elegant detail and awesome espresso frame. 48" x 82"

Teak Outdoor Chair SOLD

Coolest, sleekest outdoor chair in Philly!

Pair of Living Room Elegant Ivory Brocade Chairs SOLD

Pair for $325. Sold separately for $175 each. Brand new with slip-on arm rest covers.

Pan-American Products Sues Rooms to Go

On July 2, 2010, Pan-American Product & Holdings, LLC (Guilford Co., NC) sued Rooms to Go and several related entities for copyright infringement, breach of contract, unjust enrichment, conversion and misappropriation, unfair competition and unfair and deceptive trade practices. The case is was filed in the United States District Court for the Middle District of North Carolina.

Pan-American alleges rights in certain aspects of the "Retro Collection," including (1) a collection of panels with alternating grains in order to create a sense of depth and visual tension; and (2) tapered appliques. The designer of the Retro Collection met with representatives of RTG and it was agreed that RTG would sell the Retro Collection and use Pan-American as a broker in acquiring the furniture from manufacturers. As part of this agreement, samples of the Retro Collection were provided to RTG. After further negotiations, the deal stalled.

Several years later, RTG released the "Chaplin Collection." Pan-American alleges that the Chaplin Collection infringes its rights in the Retro Collection and RTG did not use Pan-American as the broker. RTG's Chaplin Collection is shown below:

Ex-Cell Sues Carnation Home Fashions

On July 2, 2010, Ex-Cell Home Fashions, Inc. sued Carnation Home Fashions in the United States District Court for the Western District of North Carolina for false designation of origin, trade dress infringement, and design patent infringement. For its claims, Ex-Cell alleges that Carnation is infringing its trade dress in hang tags used in connection with shower curtains and liners. Ex-Cell identifies its trade dress as the "distinctive appearance of the total image and overall appearance of the EXCELL Shower Curtain package, including the size, shape, color combination, and texture, and serves to identify such products as emanating from Plaintiff." Ex-Cell further alleges that Carnation is selling counterfeit shower curtains with the EXCELL mark and confusingly similar hang tags. Ex-Cell also alleges infringement of U.S. Design Patent No. D611,330 for an ornamental shower curtain hook. A figure from the '330 patent is below:

Black Jewelry Armoire SOLD

Two-tiered contemporary, rotating accessory storage with three mirrored sides. Two bottom drawers for additional storage.

Black Leather Sectional Couch SOLD

This L-shaped sectional is in great condition!

Early 1900s Oak Washstand SOLD

This is an original piece from the eary 1900s before many places had running water, it was the base for a bowl to wash up. solid oak and very cute!

Century America Sues On Three Design Patents

On June 10, 2010, cabinet and hardware designer and retailer Century America, LLC (Grand Rapids, Michigan) sued Knobs and Pulls.com, Inc. (Nampa, Idaho) and Pride Industrial, LLC (Cincinnati, Ohio) in the United States District Court for the Western District of Michigan for infringement of United States Design Patent Nos. D553,944; D558,557; and D574,216. The design patents cover cabinet handles and pulls. Fig. 8 from the '944 patent and Fig. 1 from the '557 patent are shown below.

Naos Sues On Extendable Table Patent

On June 8, 2010, Italian design company Naos, SRL (Florence, Italy) filed a patent infringement action against Sunset International Trade, LLC, CSN Stores, LLC, and Wal-Mart Stores, Inc. for infringing United States Patent No. 5,458,070, entitled "Extendable Table With Two Rotating Elements, For Use As A Piece Of Furniture." A copy of the complaint may be found by clicking here.

A figure from the '070 patent is shown below:

Wal-Mart's version of the table:

True Innovations Sues On Design Patent

On June 1, 2010, True Innovations, Inc. filed a complaint in the Northern District of California against Marco Group, Inc. (Missouri) and Zhejiang Qianglong Seating Co. (China) alleging infringement of United States Design Patent No. D494,791 entitled "Chair Arm Support" (Civil Action No. 10-cv-2499-EDL). A copy of the complaint may be found by clicking here.


The '791 patent is a good example of claiming just a portion of an item of furniture. The solid lines in the drawings define the scope of the claims. Here, the patentee True Innovations is claiming just the arm support. The support may appear on any chair and still infringe the '791 patent. A copy of the '791 patent is attached to the complaint and Fig. 1 is reproduced below:

Fabric Printing Company Loses Bid To Enforce Design Based On "Clip Art"

Fabric printing company L.A. Printex sued clothing retailer Aeropostale and its supplier for infringing Printex's copyright registration for a textile design entitled "Geometric" in the Central District of California. The registration include 13 distinct patterns. The allegedly infringed pattern consists of a series of identically-sized snowflakes arranged in a heart-shaped pattern. Printex's designer copies the design for the snowflakes from Adobe Photoshop 7.0's "clip art" collection.

In its summary judgment motion, Aeropostale argued: (1) the Adobe End User License Agreement prevented Printex from registering derivative works based on clip art; (2) Printex fraudulently misled the Copyright Office by failing to disclose the Adobe clip art; and (3) Printex's registration is for a group and Printex failed to offer evidence that it published the patterns as a "single unit" as the Copyright Act requires.

The court rejected the first two arguments, holding that the EULA only prohibited users from asserting rights in the software and because of that, Printex had not failed to disclose a fact that might have prevented the Copyright Office from issuing the registration. However, the court held that Printex failed to submit any evidence that it published the snowflake design independent of the other designs in the registration. Noting that the Copyright Office has not promulgated regulations allowing for group registrations of fabric patterns, the court held that Printex did not have a valid registration in the snowflake design alone.

The opinion underscores the need to evaluate the material for which protection is sought, and how to craft the appropriate protections for those materials. The full opinion may be found here.

Sleepy's Files Trademark Action Over Macy's Use Of "Mattress Professionals"

New York based Sleepy's LLC filed suit against department-store chain Macy's for infringing Sleepy's trademark "the mattress professionals." The case was filed in United States District Court for the Southern District of New York (Civil Action No. 10-cv-3982). In its complaint, Sleepy's seeks an injunction against Macy's use of the phrases "Ask Our Mattress Pros" and "Factory-Trained Mattress Professionals."

Round Up of Recent Furniture Cases

Several new furniture IP cases were filed within the last month or so. Here is a summary:


1. Nood Fashions, LLC v. Nood Furniture and Design Ltd., 4:10-cv-49 (N.D. Ga.) - Plaintiff Nood Fashions, LLC brought suit against defendant Nood Furniture and Design Ltd. for trademark infringement and unfair competition. Plaintiff Nood Fashions manufactures and distributes carpet and flooring using the "NOOD" mark. Defendants Nood Furniture and Design Ltd. is a Canadian company is using the "NOOD" mark for and on its website - http://www.nooddesign.com/ - in connection with furniture and other home furnishings. Defendant is using a very similar logo:





2. On April 23, 2010, Jangsoo Industry Co., Ltd., a Korean company, and its exclusive U.S. distributor brought an action in the United States District Court for the Northern District of Georgia against Jangsoo Furniture Land, Inc. for trademark infringement and unfair competition under federal and state law (Civil Action No. 1:10-cv-01225). Jangsoo Industry manufacturers and, through its distributor, sells heated electric mattresses and stone beds, mainly to the Korean community in and around Atlanta. Plaintiff is the owner of over a dozen marks involving the component JANGSOO in connection with beds. Plaintiff alleges that defendant was a former licensee that had been terminated but continues to use the JANGSOO marks. Plaintiff filed for a preliminary injunction along with its complaint. It appears that defendants have not responded.





3. On April 14, 2010, Herman Miller sued multiple defendants, including an unknown company in China, in the United States District Court for the Northern District of California (Civil Action No. 3:10-cv-01608). In its complaint, Herman Miller alleges that defendants have engaged in trademark infringement, trade dress infringement, and unfair competition for the production and sale of "knockoff EAMES trademark in Lounge Chairs and Ottomans" and "knockoff EAMES Aluminum Group and Soft Pad" furniture. The federal trademark registration held by Herman Miller for one of the Eames chairs is below.

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, http://www.furniturexo.com/, 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 http://www.mazeltovfurniture.com/. 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.

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.

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.

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.

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].

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:

Jack Hicks Speaks On Knockoff Furniture Designs In Magazine Interview

Womble Carlyle attorney Jack Hicks shares his thoughts on fighting knockoff furniture designs in the current issue of Casual Living magazine.

Mr. Hicks, a patent attorney who represents some of the biggest clients in the furniture industry, says knockoff designs are on the rise, due to the faltering economy. But Mr. Hicks says there are legal avenues for companies who feel their designs are being copied by competitors.

"Intellectual property laws exist in large part to reward companies who take a risk with new designs," Mr. Hicks tells the maganize. "And when you hit a home run, it rewards them by giving them exclusivity."

Mr. Hicks is a frequent author and speaker on intellectual property issues pertaining to the furniture industry and is co-author of this blog.

Casual Living is a maganize covering the casual furnishings industry.

Gum Tree - Culp Battle Over Fabric Copyright Protection

On August 21, 2009, High Point based fabric and ticking supplier Culp, Inc. sued Gum Tree Fabrics, Inc. of Tupelo, Mississippi for copyright infringement, unfair competition, and unfair and deceptive trade practices under North Carolina law. (Case No. 1:09-cv-648-NCT-LPA) The complaint is based on Gum Tree's continuing sales of its "Ringo" fabric, which Culp claims infringes its copyright on its "Palamino" fabric.

The parties were apparently trying to settle the matter. However, settlement talks have failed and Gum Tree appears ready to litigation. Gum Tree's answer to the complaint is now due Feb. 18, 2010.

Furniture Today's report may be found by clicking [here].

This is not the first time Culp has enforced its copyright rights. In April 2009 Culp filed several copyright infringement actions based on its fabric designs.

Federal Circuit Updates Design Patent Invalidity Standards

In 2008 the United States Court of Appeals for the Federal Circuit issued its landmark decision in Egyptian Goddess, Inc. v. Swisa, 543 F.3d 665 (Fed. Cir. 2008) (en banc) in which the court eliminated the point of novelty test for design patent infringement, stating:

[W]e conclude that the point of novelty test, as a second and free-standing requirement for proof of design patent infringement, is inconsistent with the ordinary observer test laid down in Gorham, is not mandated by Whitman Saddle or precedent from other courts, and is not needed to protect against unduly broad assertions of design patent rights.

Egyptian Goddess, 543 F.3d at 672. After Egyptian Goddess the test for determining infringement of design patents has been clear. However, the decision in Egyptian Goddess left open the question of how to determine invalidity of design patents under 35 U.S.C. §§ 102 or 103 since before Egyptian Goddess, the test for invalidity involved both the ordinary observer test and the point of novelty test. The patent bar and design patent holders were facing one standard for infringement and a different standard for validity. This disparity contradicted long standing maxims of patent law, such as "that which infringes, if later, would anticipate if earlier." Door-Master Corp. v. Yorktowne, Inc., 256 F. 3d 1308, 1312 (Fed. Cir. 2001) (citing Peters v. Active Mfg. Co., 129 U.S. 530, 537 (1889)). This uncertainty was recently resolved in International Seaway Trading Corp. v. Walgreens Corp., 589 F. 3d 1233 (Fed. Cir. 2009).

In International Seaway plaintiff sued for infringement of three design patents covering clogs, U.S. Patent Nos. D529,263, D545,032 and D545,033. Fig. 1 from the '263 Patent is shown below and illustrates a representative sample of the designs.


The district court granted summary judgment for defendants, finding that the three Seaway patents were invalid under 35 U.S.C. § 102 as anticipated by a patent assigned to Crocs, Inc. The district court did not rule on defendants' motion for summary judgment of obviousness. On appeal, Seaway contended that the district court erred by basing its invalidity determination solely on the ordinary observer test and not including the "point of novelty" test. On this question the Federal Circuit affirmed the district court's use of the ordinary observer test alone.

In addressing Seaways contention that the district court should have applied the point of novelty test during its anticipation analysis, the Federal Circuit first noted that:

Our decision Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008) (en banc), changed the test for infringement. In doing so, we held that the 'point of novelty' test should no longer be used in the analysis of a claim of design patent infringement and that the 'ordinary observer' test should be the sole test for determining whether a design patent has been infringed. [ ] The issue remains whether Egyptian Goddess also requires a similar change in the test for invalidity.

Seaway, 589 F.3d 1237 (internal quotations omitted). The Federal Circuit then reaffirmed the maxim that the same test for infringement should apply for validity and confirmed that this rule extends to design patent. Id. at 1239. Thus, "the ordinary observer test is the sole test for infringent" and "the ordinary observer test must logically be the sole test for anticipation as well." Id. Eliminating the "point of novelty" test for validity should, in many cases, allow more references to constitute invalidating prior art. This balances the holding in Egyptian Goddess that, in many cases, makes it easier to prove infringement.

Despite not having the issue of obviousness before it on appeal, the Federal Circuit went on to articulate that the ordinary observer test applies to the determination of obviousness. However, for design patents, the role of one of ordinary skill in the art is limited to "determining whether to combine earlier references to arrive at a single piece of art for comparison with the potential design or to modify a single prior art reference." Id. at 1240. Once a combined prior art design is constructed, "obviousness, like anticipation, requires application of the ordinary observer test, not the view of one skilled in the art." Id.

This new analysis for obviousness appears to conflict with 35 U.S.C. § 103, which states that a patent may not be obtained "if the differences between the subject matter sought to be patented and the prior art are such that the subject matter as a whole would have been obvious at the time the invention was made to a person having ordinary skill in the art to which said subject matter pertains." Further, the design patent statute, 35 U.S.C. § 171 states that "The provisions of this title relating to patents for inventions shall apply to patents for designs ...." Thus, under the statute, obviousness should be determined by "a person having ordinary skill in the art," not the ordinary observer. It will be interesting to see how the case law develops around this aspect of the Seaway holding.

Strength Of Design Patents Seen In Case On Shower Rod

A recently filed case in the United States District Court for the Eastern District of Pennsylvania demonstrates the power of design patents to protect design elements that are not eligible for copyright protection. In Zenith Products Corp. v. Design Home Solutions, LLC (Case No. 2:10-cv-00148-LS), Zenith Products alleges that defendant is infringing U.S. Patent No. D542,897, entitled "Curved Shower Rod." The '897 Patent covers a simple curved shower rod that could not be protected under copyright law. Ohter than the circular mounts located on each end, the only design element on the bar itself appears to be five rings around that bar that are likely joints. Home furnishing designers are well advised to consider design patents as a quick and inexpensive format for protecting relatively simple designs. The figures from the '897 Patent are shown below.

Sleepy's Awoken By Trademark Infringer

On January 8, 2010, mega-mattress retailer Sleepy's filed a trademark infringement action against Mattress & Furniture Outlet Inc. in the United States District Court for the District of New Jersey (Case No. 2:10-cv-00108-FSH-PS). In its complaint, Sleepy's alleges that the Jersey City based defendant is offering mattresses, bedding, and furniture under the marks or names "SLEEPYZ," SLEEPYZ MATTRESS & FURNITURE OUTLET" and "SLEEPY'Z" as well as operating a website at http://www.sleepyzonline.com/. A visit to the website on January 23, 2010 indicates that defendant has already stopped use of the website. Sleepy's complaint alleges trademark infringement under 15 U.S.C. 1114, false designation of origin under (15 U.S.C. 1125(a), trademark dilution under 15 U.S.C. 1125(c), common law trademark infringement and unfair competition, dilution under New Jersey Stat. Ann. 56:3-13.20, and unfair competition under New Jersey Stat. Ann. 56:4-1.

NHFA Adds Glossary Of Furniture Terms

The National Home Furnishings Association (NHFA) has added a glossary of furniture terms to its consumer-based website http://www.homefurnishings.com/. The glossary should be useful for consumers, the industry, as well as patent lawyers looking for an authoritative definition. The glossary may be viewed by clicking [here].