Last week marked what would have been Charles Eames’ 107th birthday. Charles along with his wife Ray are probably the most famous design partnership in American history. They also designed what has come to be known as the most knocked off piece of furniture in American history; The Eames Molded Plastic Chair (original designation) commonly referred to as the fiberglass or shell chair, and now produced by Herman Miller in polypropylene (Molded Plastic), in fiberglass (Molded Fiberglass), and in plywood (Molded Wood). Everyone knows the chair, and chances are you’ve even sat on a version of one. Whether its fiberglass, plywood, or plastic, the iconic Eames shell chair has also sparked one of the largest knockoff design debates in history. Although the debate has heated up in the recent past, the knockoffs have been happening since close to the chair’s inception.
I recently sat down and talked about knockoffs with Mark Schurman, Director of Communications for Herman Miller. Understandably, Mark had a lot to say about knockoffs and not just because of the ongoing legal battle with Los Angeles-based furniture company, Modernica.
I don’t want to get in to the legal details too much, but let me give you just a brief run down in case you were unaware of Herman Miller vs Modernica….
In 1950, Charles and Ray Eames pushed the limits of manufacturing with their groundbreaking Molded Fiberglass Chairs. By the 70s environmental risks associated with fiberglass production were becoming more widely understood, leading to the eventual decision in the late 80s to discontinue fiberglass shell production until a more suitable material could be found. Also around this time, there was explosive growth in Herman Miller’s commercial contract office furniture, leading the company to assign the residential marketplace a back seat. Many items were taken out of production, in addition to the Eames Molded Shell Chair. But Herman Miller never ended the relationships with the designers or their heirs, and never abandoned their own reverence for their own history.
In the early 1990s demands for the Eames Shell Chair in the vintage marketplace picked up, and Modernica (among others) stepped in to fill the void and make reproductions. By the mid-90s Herman Miller decided to get back in to the residential market and identified Modernica as being a potential supplier. Herman Miller wasn’t happy with some of the things that Modernica had been doing up to that point, but left that open for conversation. Negotiations with Modernica bobbled along for a few years, and by 1998 Herman Miller agreed to use them as a supplier if Modernica was willing to make changes in terms of quality and authenticity. Herman Miller didn’t want to put their name on it, unless it met their standards. Modernica gave Herman Miller assurances that they were interested in being a supplier. It was Herman Miller’s understanding they were going to stop doing unauthorized reproductions, and they weren’t going to do private label (sell it under the Modernica name) as well as make the improvements that were asked for.
Herman Miller put in a good faith effort in looking at Modernica as a potential supplier. Mark said, “If, in fact their commitment to the designer and the designs was real, we could have found an opportunity for them to be in the fold of Herman Miller. But that proved impossible.”
“By the fall of 1999, we broke off the relationship with Modernica, for many reasons. There were lots of issues—product quality, authenticity of materials and specifications, failure to honor the understanding that we had (in writing) that they were going to cease and desist the unapproved products. These were never their designs. They were the designs of the designer, and the original authorized collaborator, Herman Miller”
The disagreements with Modernica continues to this day. In addition to breach of contract and false advertising, Herman Miller claims the latest Modernica violation is of trademark — any reference to the word ‘Eames’ in connection with furniture. Herman Miller owns ‘Eames’ as a trademark worldwide. - *Editors side note; Modernica continues to use a promotional movie from 1970 made by the Eames Office for Herman Miller on their website. The movie shows how the Eames Fiberglass Chair was designed and made. It even has the Herman Miller logo prominently in the opening sequence, and gives credit to Herman Miller in the closing. – That’s bold.
But here’s the big problem with the Eames Molded Shell Chair knockoffs that’s beyond the battle with Modernica…. The design wasn’t in continuous production for Herman Miller. Does that mean that the design is in the public domain and a free for all for anyone to reproduce? Not really, according to Mark, “There is a quilt work of law across the world. What makes it very challenging for designers and manufacturers, is what’s true in this country, is not true in that country. So the range of protections and the degree of what’s enforced is very wide. In the US, you can apply for a design patent, which basically has more to do with the form and the appearance, not so much its functionality. Or a utility patent related to function, but both are limited to less than 20 years. So the issue with these designs from the middle of the twentieth century, is they are all well beyond any design patent or utility patent. You can renew, but you would have to tweak the design in such a way and make your case with the USPTO (U.S. Patent and Trademark Office) that this is substantially different design. You can’t just say is ‘hey, I’d like to have another 20 years of protection’. – But what you can do, is apply for Trade Dress.”
“To receive Trade Dress, you would have to first continuously produce it, (one of the problems with the Eames Shell Chair). And you then have to show both qualitatively and quantitatively that any reasonable person on the street, would see that piece and assume its associated with a given brand. We have been successful in doing that with the Aeron Chair, with the Eames Lounge and Ottoman, and the Eames Aluminum Group, which have all been in continuous production.”
It’s an elaborate, expensive and time consuming process to receive Trade Dress, but worth it. Having Trade Dress and continuous production makes your case pretty rock solid against knockoffs. “They don’t just hand that out. If you get through that entire process and are granted Trade Dress, you have the biggest stick in terms of Intellectual Property. ”
But as Mark explains, there will always be someone willing to test you… “We are constantly battling knockoffs. Picture a bunch of rats running around the feet of an elephant, if they feel they can come in and grab one peanut and sell 100 knockoffs, then they’ll do it. The power of protection is only as good as your will to use it. And that means spending more money. A company of our size, with passion and commitment to these issues, we’re prepared to do that. And we’ve continued to win in litigation. But for a smaller manufacturer, it’s a real problem.”
The issue of knockoffs is ongoing for Herman Miller. Mark says, “You know, there is this whole argument that it’s ok to knockoff these big companies (like Herman Miller)… ‘They’re just some big company, making lots of money – big industry types… They don’t deserve that protection or loyalty.’ – The real tragedy is all these small companies and small designers who start to break through, suddenly find out that their work has been absconded by some off shore operation, suddenly liquidating their opportunity. It has a very negative impact on the incentive for people to innovate.”
Mark adds that we’ve got to continue to educate ourselves, as well as exposing the source of the knockoffs. “The only incentive for the knockoff industry is their belief that they can sell it. And if we can educate the consumer, as to what is the truth in terms of the sacrifice of quality, originality, the dampening effect on future innovation, the manufacturing conditions of the workers, and the whole moral issue of copying. There’s a whole host of issues; moral, ethical, and economic issues why knockoffs need to be better understood. And hopefully by educating and creating a more fully aware consumer – the market will dry up.”
The fact is – the knockoff companies are misguided. Human nature allows people to rationalize and justify the practice. Unfortunately the public buying the knockoffs have also rationalized.
But wait, Eames designed for the best for the most for the least. – Wouldn’t that imply Charles and Ray somehow would be comfortable with or even pleased to have seen their designs so widely knocked off? Not so, says Mark. “They did design with that philosophy, but it’s widely misunderstood. One common argument is that these things are grossly overpriced from what the Eames would have intended. – But if you go back and look at the published catalogs from that time, take the price of a particular piece and plug it in to the US Govt. inflation calculator, fast forward to 2014 – you’ll find out most of the time its the same price if not cheaper than the original pricing structure. They never said ‘the best for the most for CHEAP. – It was always premium in terms of its performance, design and quality. People have misinterpreted that quote. Eames never said Cheap. And I think thats one of those examples that people rationalize to cloud the issue.”
The Eames battled knockoffs the best way they could even back in 60s. One solid evidence of proof is this poster designed by the Eames Office that was on the back cover or Arts and Architecture magazine in 1962. ‘Beware of Imitations. Look for this mark, (pointing to the Herman Miller logo). And in smaller print… ‘These are the ORIGINALS, accept no substitutions,’ - When somebody says, ‘oh well, the Eames wouldn’t care’, Mark says, “That’s Balderdash.”
Need more convincing why should you buy from companies like Herman Miller, or Emeco, or Fritz Hansen, and not from the knockoff? Mark says, “These are companies who are at their heart, really committed to the designs. Because of that commitment, we continue to invest in the design itself. Tools don’t last forever. But we’re so committed to the quality that we replace those tools. We don’t think, ‘Oh we can squeeze another 1000 off this mold.’ A Knockoff maker doesn’t have that kind of commitment to the construction. Because their brand isn’t associated with it! – An example is the Eames Lounge and Ottoman, which today is frankly superior to a Lounge and Ottoman 50 years ago in terms of its durability and performance. And that’s not because it wasn’t genius 50 years ago. But there are new glues, and new material composition in the shock mounts, new construction techniques, etc. It’s an incredibly delicate construction technique, when you look at how the arms, back and seat come together by the hidden shock mounts (frequently a bad knockoff have a screw exposed.) Those connecting points we continue to invest in, putting them under very strenuous testing to get them better and better. We have great confidence that the overall construction is improved. The knockoff company isn’t going to invest to do those things.”
I asked Mark if he’s noticed any headway? “We need to create smarter and better law that favors the innovator. There has been some great progress recently internationally. The UK has taken a wonderful position recently which could very well be end to the knockoff industry in the UK. Or at least a real dampening of it.”
And the cause isn’t going unnoticed. “We hear from a lot of people congratulating us on the wins and the effort. And I don’t just mean from other companies. I routinely get emails from fans, not just Herman Miller fans, but fans of modern design. People have very emotional attachments to these designs and want to see them protected.” Mark gives props to fans on social media that acknowledge the fakes. “We think we’re aware of many of them, but it’s helpful and encouraging. If you know that people out there care, then it keeps you motivated.”
So now you’ve read the story, and you’re convinced. You love the design, want to support originality but can’t afford to buy new — what can you do? Mark says shop the secondary market. “You might think that we don’t have any incentive to encourage people to buy used, but one of the messages I always urge people is; you probably can buy that same piece used for close to the same price as the knockoff version, maybe better. And if you’re willing to take a little patina, wouldn’t you rather have an authentic piece than a knockoff?”
This post was written as part of my ongoing series with Be Original. Be Original Americas is committed to informing, educating and influencing manufacturers, design professionals and individuals on the economic, ethical, and environmental value of authentic design while preserving and investing in its future.
All images are used with permission by Herman Miller.
By Linda Geiser