The problem you have as a lawyer is that you start to see the “law” in everything you do, including those things you do for fun.
I backpack. And I am just a tad overweight, which I means I have a few extra pounds to lug around the woods for 10 miles at a time. While a more sensible man might look to simply lose those extra pounds, however, I have opted instead to eat more cookies and look to lower the weight of my pack.
The easiest way to lower pack weight is to lower the weight of one or all of the “big three” — the pack itself, the sleeping bag or the tent. So, before every trip, I spend hours and hours researching the latest in ultra lightweight gear, focusing most intensely on these three categories of backpacking equipment. This would seemingly have nothing at all to do with the law.
But then, enter the tents.
But then, enter the tents.
For my last trip, I purchased the Six Moon Designs Trekker, pictured here:
It is a great tent given the purpose it serves. It weighs only 24 ounces, which is incredibly lightweight. It has a floor (to keep you and your gear out of the dirt and mud), noseeum netting (to keep the bugs out) and a rain fly (to keep you dry), which can be rolled up on both sides to increase ventilation. It sets up fast, integrates well with your other gear (hiking poles are used to support the tent itself), and holds up well in a storm given its weight and materials. As soon as I saw it, I knew it was a great example of backpacking engineering, and I bought one for myself the day it came out.
A few weeks later, I decided to take to the web to check out the reviews on the Trekker and, essentially, congratulate myself on my distinguished eye and ingenious purchasing decision. And that’s when I discovered the eerily familiar, if not quite as bright, shiny, and newly released, Lighteart Solo:
If the similarity hasn’t quite hit you upside the head just yet, perhaps this side-by-side photo will help (Trekker on the front-left; Solo on the back-right):
When my wife — who is, to the benefit of both our sanities, not a lawyer — looked over my shoulder and saw these photos, her reaction was simple: “Looks like your new tent isn’t so new after all; they just ripped off that other tent.” To which I responded — contrary to both my better judgment and my wife’s desire that I not turn every “normal” conversation into a lecture on the law — “Unless the first tent company has a valid utility patent for its tent, then the second company can ‘rip it off’ all it likes because the design of the tent is functional.”
She just looked at me and said, “Legal gobbledygook. It is a rip-off.” Then she put up her hand, which is her way of letting me know that she is done discussing the issue. But you, dear readers, are here for just that gobbledygook. And that gobbledygook strikes a vital social balance between when one is prohibited from “ripping something off” and when one is essentially encouraged to do so.
A normal patent, called a utility patent, protects a functional design for a period of 20 years. This limited duration monopoly is granted to a new, functional design in order to encourage and reward innovation in functionality — new products with new uses. But, in the case of my tent, these types of functional designs have been around for thousands of years: both tents are essentially a tarp, held up by two sticks which are bent such that they can be fixed to the ground for sturdiness. Sure, it’s a step up from the nursery blanket-draped-over-a-broom-handle your five-year-old probably independently invented the first time he or she wanted to stay up late and read by flashlight, but we’re really just talking a difference in degree, not kind. So, in all likelihood, any utility patent for the overall tent design expired long ago.
Design patents, on the other hand, protect non-functional ornamental designs on otherwise functional products. Like utility patents, design patents are designed to reward innovation by providing a limited monopoly (in this case, 14 years). But here, the innovation being rewarded is innovation in design only, not utility or functionality. For that very reason, by definition, design patents cannot be used to protect designs that are functional, only decorative. The classic Coca-Cola contour bottle design? Vintage design patent. If that bottle actually made the liquid taste better and flow more efficiently? Wouldn’t qualify.
And then, of course, there is the comparatively fluffy legal world of trade dress protection, which is a branch of trademark law that concerns itself not with rewarding and encouraging innovation, but rather, preventing consumer confusion as to the source of the good. Trade dress law would protect the Coca-Cola contour bottle design not because Coca-Cola did such a good job inventing it, but because consumers who see the bottle might be apt to instantly assume, “That’s a Coke.” As with design patents, however, trade dress protection cannot be afforded to product “dress” (i.e., packaging or design) that is merely “functional” — that is, part and parcel of, or necessary to, how the product works.
Without engaging in a wholesale engineering analysis, it seems to me the designs of the Six Moon Trekker and Lightheart Solo tents are inextricably linked to their functions as lightweight, sturdy tents. Which means that, if I’m right the underlying utility patents are long expired, there is probably nothing that Lightheart can do to prevent Six Moons, or any other manufacturer, or me, from manufacturing and selling an array of similar-looking products — even if those like my wife might, on a gut level, dismiss such goods as “rip-offs.”
Why does the law allow for such a seemingly huge loophole in intellectual property protection? Because there is a very valid competing public policy at play: we call it competition. We value very highly one party’s ability to compete against another in the same industry or business. We encourage anyone and everyone to try to make a better mousetrap. Competition leads to innovation, which leads to progress and better value for consumers long term. But in order to compete, one must be allowed to copy some aspects of the original, in order to be able to improve on them. For that reason, the law leaves a certain universe of what goes into a successful product or service outside the scope of protection by patent, trademark, copyright, or any other legal framework. For example, Burger King and Wendy’s arguably “ripped off” McDonalds: they did may not have stolen the non-functional, purely decorative golden arches, but they sure borrowed a few ideas on the functional aspects of making and selling a (cardboard-tasting) hamburger as quickly as possible. Can you say “drive-through?”
Indeed, that is the whole point of my ultra lightweight tent research. The reason I spend so much time looking for a better backpacking tent each time I plan my next backpacking trip is that I am eager to find something that is even a little bit better, even though I know it will be very similar to what I already have. If you research tents (or any consumer product in a highly competitive market) in any real detail, you will learn that there are only so many way to keep someone dry, clean, and safe from mosquitoes for under four pounds (or whatever it is your other product is meant to accomplish). To the non-expert, many tents look alike, if not identical. But to us backpackers, those hard-to-notice-just-from-looking-at-it differences — in materials (cuben fiber vs. sil nylon vs. regular ripstop nylon vs. polyester), in price ($550 vs. $350 vs. $250 vs. $200) and in weight (20 ounces vs. 24 ounces vs. 32 ounces vs. 40 ounces) — make all of the difference.
So even if it might offend my wife’s sensibilities, I don’t mind one outdoor products company “ripping off” another. If they didn’t, I might spend my backpacking trips looking for a cave to sleep in.