Originality plays an important role in both intellectual property and business success. Some degree of originality is required to secure the protection of patent, copyright or trademark law. “Novelty” is a fundamental requirement of patent registration.  Copyrights require “original works of authorship”.   When it comes to trademarks, the originality of a single letter’s design, even where the rest of the branded names are different, can have significant repercussions.  The more groundbreaking your product, the more likely it is to sweep the market.

As important and valuable as originality is, it’s impossible to escape the fact that every creation is inspired by the works that came before it. A recent dispute between two creative houses emphasizes this point.  Quirky, which uses crowdsourcing to design a wide range of consumer products accused Oxo, a well-recognized producer of the Good Grips line of kitchen tools, of stealing their dustpan design.  Both recently released a dustpans designed with built-in fins used to rake dust bunnies and other accumulation from a broom (click for Quirky and Oxo designs). Without a doubt, a clever solution to a common problem.  Each product tackles the raking aspect slightly different (the materials, size, spacing and position of the fins are different. More importantly, they each incorporate additional ‘bonus’ features. Quirky’s design uses a handle that ends at floor level with a platform that can be stepped on to brace the dustpan.  Oxo’s design includes a compartment recessed behind the fins to contain the mess and a long handle to avoid the need to bend over.

Oxo issued a response to the accusations that is on par with the nicest trademark cease and desist letter. In addition to being supportive of the Quirky community, it made it clear that both designs are squarely based on a 1919 patent which has long since expired. At this point, all producers are free to exactly reproduce that patented dustpin.  On the other hand, any improvements or additions could be patented. For example, Oxo’s step handle, if patented, could not be copied by Oxo, Similarly, Oxo’s compartment, if patented, could not duplicated. Here, the “if patented” is critical. In order to qualify for a patent, these improvement would have to be shown to themselves not be copies of some other unexpired patent and, additionally, they’d have to prove that the combination of features was not obvious to a typical dustpan designer. Chances are, neither combination would have survived patent scrutiny.

A similar battle of originality was waged between Wegmans markets and Walgreens pharmacies over similarities in their logos and, specifically, the design of the “W” starting both their names. That case, however, was slightly different in that Walgreens likely felt a suit was required to maintain the validity of its mark as opposed to their belief that similarities would result in consumer confusion.

The Law Office of Zak Shusterman can perform clearance  reviews of trademarks and inventions, as well as advise on policies to defend your intellectual property against infringers. Contact here.