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The Right To Copy ' and Use ' Unprotected Product Designs Is Alive And Well
The Seventh Circuit has reaffirmed a competitor's right to copy and use unprotected product designs ' and clarified the ability to do so without violating the Lanham Act for “passing off” or trade dress infringement. Bretford Mfg., Inc. v. Smith System Mfg., Corp., 419 F.3d 576 (7th Cir. 2005). This article examines the legal precedent behind the right to copy and use unprotected product designs in the context of this case, and provide analysis of its impact.
The Notion of Freedom to Copy
The Supreme Court has long recognized that “if a design is not entitled to a design patent or other federal statutory protection, then it can be copied at will.” Compco v. Day-Brite Lighting, Inc., 376 U.S. 234, 238 (1964). Thus, “rivals [have a] right to reverse-engineer and copy products which they may do down to the last detail unless a feature of the product is protected by patent, copyright, or trademark law.” TraFfix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23, 29 (2001). This “right” rests on a public policy that competition is hindered when competitors are unduly barred from duplicating unprotected design features, as “[a]llowing competitors to copy will have salutary effects in many instances.” Id.
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