You Can’t Sit With Us: Furniture’s Future in Fighting Phonies
There are countless ways to design a chair. The designer of the chair on which you are currently sitting may have designed it for style, comfort, utility, or all of the above. The more consumers enjoy the design, the more likely the designer will want to protect his intellectual property through trade dress to combat knockoffs, preserve his exclusive right to distinguish his product, and prevent other companies from free-riding on his marketing expenditures. The more functional the chair’s design, however, the less likely it will acquire trade dress. Indeed, some legal scholars believe that there is no possibility of furniture articles acquiring trade dress because furniture is functional.
But that belief is misleading; manufacturers of mid-century modern and modern classics like Herman Miller, Emeco, and Knoll have properly acquired trade dress for classics like the Eames Lounge Chair, the Navy Chair, and the Barcelona Chair. These companies are popular targets of the knockoff and counterfeit trade, yet they better serve society’s interest by relieving the trade deficit, practicing social and environmental responsibility, and providing durable, value-retaining furniture. Nonetheless, the functionality doctrine may hinder these furniture manufacturers from acquiring trade dress.
The Lanham Act governs trademark and trade dress law; it protects markholders, consumers, and competitors. Although the Lanham Act may effectively grant a monopoly on the overall look and design of a product through trade dress, it also prohibits protection of functional features to avoid burdening fair competition. Acquiring trade dress for original design can therefore turn on how courts define and apply the functionality test.
This Note will address the circuit split regarding consideration of alternative designs under the first prong of the functionality test set forth in TrafFix v. Marketing Displays, Inc. It will describe how the split has affected the courts’ determination of functionality in design features of furniture articles. The Note will show that courts will severely curtail the trade dress eligibility of a chair if they continue to unpredictably apply a piecemeal analysis on design elements; conflate utility and functionality or overlook the comprehensive definition of “essential”; and refuse to consider as evidence the alternative designs under the first prong of functionality. The future of trade dress registrations on the Federal Register for classic designs (like the Eames Lounge Chair) is solid; such designs will continue to be registrable because the Trademark Manual of Examining Procedure requires examining attorneys to apply the Morton-Norwich factors. However, if a competitor challenges a design, the product owner, even with incontestable trademark status, must overcome the obstacles of inconsistency and misapplication in the federal courts. Lastly, this Note will argue that, given the realities of copycat furniture companies and the purpose of the Lanham Act, the critique that trade dress unfairly monopolizes product designs in this niche is unwarranted.
Questions and inquiries regarding this Note may be forwarded to the author at LawReview@vermontlaw.edu.
 Kimberly Allen Richards, Comment: Should Furniture Become Fashion-Forward? Applying Fashion’s Copyright Proposals to the Furniture Industry, 11 Wake Forest J. Bus. & Intell. Prop. L. 269 (2010).
 USPTO Image Trademark, No. 2716843 (Filed Oct. 26, 1995).
 USPTO Image Trademark No. 75486564 (May 18, 1998).
 USPTO Image Trademark No. 76556817 (Oct. 22, 2003).
 15 U.S.C. § 1127 (2012).
 15 U.S.C. § 1115 (2012); Qualitex Co. v. Jacobson Prods. Co., 514 U.S. 159, 164-65 (1995).
 Provided that the other elements, secondary meaning and likelihood of confusion, are also met. 15 U.S.C. § 1125(a); Wal-Mart Stores, Inc. v. Samara Bros. Inc., 529 U.S. 205 (2000) (ruling that product designs can never be inherently distinctive and thus must prove that it has acquired secondary meaning).
 TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23 (2001). According to the Supreme Court in TrafFix, a court should first examine whether a product feature is essential to the use or purpose of a product and whether such features affect the product’s cost or quality. Id. at 33–34. This is the first prong. The second prong of the doctrine seeks to answer whether exclusive use of a product feature would create a significant non-reputation related disadvantage and if there are alternative designs available. Id. If the product feature is still non-functional, a court may continue on to the other requisite elements of secondary meaning and likelihood of confusion. Id.
 Functionality is defined as that which is essential to the use or purpose of the article or affects the cost or quality of the article. TrafFix, 532 U.S. at 33.