Furniture and Homewares IP Checklist: Separability Analysis, Design Filing Sequence, Trade Dress Evidence, Licensing and Reissue Terms, and Copy Response

By Casey Scott McKay · 2023-10-08

This checklist audits the intellectual property position of a furniture or homewares business in the order the questions arise. It starts with the separability sort, because the division between the shape of an object and the surface applied to it determines which tool protects which feature and most businesses have never been told where the line falls. It then covers registration drafting, the surface design and photography registration habit, the design filing calendar that must run ahead of the trade show calendar, the trade dress evidence file, designer and studio paperwork, factory terms, digital file distribution, retailer and private label exposure, and the marketplace enforcement sequence. Gate items mark where work should stop.

IP and Technology > Copyright | Checklist | Published 8 October 2023 - Updated 4 January 2025 | Casey Scott McKay - marksy.us

Summary. This checklist audits the IP position of a furniture or homewares business in the order the questions arise. It starts with the separability sort, because the division between the shape of an object and the surface applied to it determines which tool protects which feature and most businesses have never been told where the line falls. It then covers registration drafting, the surface design and photography registration habit, the design filing calendar, the trade dress evidence file, designer paperwork, factory terms, digital file distribution, private label exposure, and marketplace enforcement. Gate items mark where work should stop.

Keywords: furniture checklist · separability sort · registration drafting · group registration timing · statutory damages window · design filing calendar · broken line claims · trade dress evidence · functionality records · designer assignments · factory tooling clause · overrun audit · specification file policy · marketplace takedown sequence · reissue and estate licensing

How to use this checklist

| Phase | What it produces | Who runs it | Gate | |---|---|---|---| | 1. Separability | A three-column sort of every feature | Counsel with design | Design team told the answer | | 2. Registration drafting | Applications describing ornamentation, not objects | Counsel | Nothing claims the whole article | | 3. Registration habit | Surface designs and photography registered per season | Counsel | Registration at design freeze | | 4. Design filings | A calendar ahead of the show calendar | Counsel and product | Sign-off before any disclosure | | 5. Trade dress | An evidence file for the signature pieces | Marketing and counsel | File started at launch | | 6. Designers | Signed assignments before work starts | Counsel | No work begins without one | | 7. Factory | Four clauses in every agreement | Procurement and counsel | Tooling ownership resolved | | 8. Digital files | A distribution policy for the geometry | Counsel and marketing | Renderings owned | | 9. Retailers | Filings before sell-in and a decided posture | Commercial and counsel | Filed before the first meeting | | 10. Enforcement | A sequenced response and preserved evidence | Counsel | Copyright claim first |

The matter. A brand with four collections shows at two trade fairs a year, works with two external designers and one overseas factory, sells into three large retailers, and has just found a close copy of its best-selling chair in a marketplace listing using its own photography. Nothing has been registered. The designers have no assignments. The factory owns the tooling. The founders believe the design is copyrighted.

Phase 1. Run the separability sort

[ ] Apply the statutory frame. 17 U.S.C. § 101 excludes the design of a useful article from copyright except where it incorporates pictorial, graphic, or sculptural features identifiable separately from, and capable of existing independently of, the utilitarian aspects.
[ ] Apply the test from Star Athletica, L.L.C. v. Varsity Brands, Inc.: can the feature be perceived as a two- or three-dimensional work of art separate from the article, and would it qualify as a protectable work on its own or fixed in another medium?
[ ] Sort every feature into three columns. Copyright available: upholstery patterns, printed textiles, applied ornamentation, decorative motifs, ceramic surface decoration, non-functional sculptural elements, printed graphics. Copyright unavailable: chair silhouettes, table shapes, lamp base profiles, vessel forms — anything where imagining the feature separately replicates the article. Contested: three-dimensional ornamentation integral to the form.
[ ] Tell the design team the answer, in writing.
- Why. Designers and founders routinely believe an original design is automatically protected. It is not, for the shape, and every week the team believes otherwise is a week the design filing does not happen.
[ ] Identify which products sit on the useful-article boundary — candlesticks, bookends, decorative bowls too shallow to hold anything — since the characterisation decides the case and the business should know which side each product falls on.
[ ] Note where patterns run across collections, since a single design applied to plates, cups, textiles, and packaging is one asset doing work across many products, which makes surface registration disproportionately valuable in homewares.
[ ] [Gate] No protection strategy is set and no enforcement theory advanced before the sort is complete.

Phase 2. Draft registrations that survive

[ ] Describe the work as the ornamentation, not as the object. An application for "chair" invites a useful article refusal; an application for "sculptural relief applied to a chair back" describes something the examiner can assess.
[ ] Disclaim the utilitarian aspects expressly, because a registration purporting to cover the article as a whole is one a defendant will attack and a court may treat as overreaching.
[ ] Provide deposit material isolating the feature.
- Trap. Where the feature genuinely cannot be shown apart from the article, that is itself an indication the separability analysis will fail — and it is better to learn that at the deposit stage than at summary judgment.
[ ] Register the two-dimensional artwork separately where a pattern is applied to a three-dimensional object, since the pattern registration is clean and the object registration is contested.
[ ] Do not over-claim. The narrower registration that survives is worth more than the broad one that does not.
[ ] Keep the file history, since amendments made to overcome a refusal become part of the record any defendant will read.
[ ] Assess whether registration is worth pursuing at all in a marginal case, since fees spent on a contested separability argument may do more work in a design patent application — the two being complements with different timelines rather than alternatives.
[ ] [Gate] No application claims the design of a useful article as a whole.

Ceramics, glass, and the vessel

[ ] Treat the vessel as a useful article. A vase, bowl, mug, or jug is a container and its shape is the article, protectable by design patent and with evidence by trade dress, but not by copyright. An application describing "vase" is refused for the same reason one describing "chair" is.
[ ] Register the decoration separately and confidently. Surface patterns, transfers, decorative glazes, and ornamental moulded relief are perceivable separately from the vessel and register without difficulty.
[ ] Describe the ornamental element, not the vessel, where moulded form is contested — a fluted body, a sculpted handle, or a figurative element integral to the piece.
[ ] Identify the fully protected sculptural objects. A decorative figurine has no utilitarian function and is an ordinary sculptural work with the full term and full remedies, and a business producing both categories should know which of its products fall where.
[ ] Exploit the cross-collection economics. A single pattern applied to plates, cups, textiles, glassware, and packaging is one copyright asset doing work across many products, which justifies a more systematic registration habit in homewares than furniture alone would need.
[ ] Read pattern licences in full: exclusivity, product categories, territories, duration, approval rights, and the fate of unsold stock constitute the whole arrangement.
[ ] Confirm the licensor owns what it licenses, which is a real question for archival material assembled over decades by institutions with incomplete acquisition records.
[ ] Make artist approval rights specific. General approval over "how the work is reproduced" is unworkable; approval over named product categories, colourways, and packaging is workable.
[ ] Protect the packaging, which is designed, photographed, copied, and protectable as packaging trade dress capable of inherent distinctiveness as well as by copyright in the artwork.

Phase 3. Build the registration habit

[ ] Register surface designs in groups, since collections of related designs can be registered together and the saving is substantial for a business producing dozens of patterns a season.
- Trap. Group registration options carry specific requirements, and getting them wrong invalidates the registration rather than merely delaying it.
[ ] Register before infringement, or within three months of first publication.
- Why. Statutory damages and attorney's fees under 17 U.S.C. § 504 and 17 U.S.C. § 505 depend on it, and a business that registers only when it finds a copy has forfeited the remedies that make enforcement economic.
[ ] Move registration into the season calendar as a single event at design freeze, rather than treating it as an enforcement step.
[ ] Allow for the fact that a registration must issue before suit, following Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC, which means special handling may be needed when a copy appears.
[ ] Handle derivative pattern work carefully, since designs adapted from historical or public domain sources carry only the originality the adapter added and the analysis under 17 U.S.C. § 103 determines what is owned.
[ ] Trace the chain of title on archival sources rather than assuming it, particularly for institutional collections whose acquisition records are incomplete.
[ ] Register the photography in the same batch.
- Why. Copyists photograph nothing and use the brand's images, which makes photography the fastest enforcement asset the business will own.
[ ] Register catalogue and lookbook material too, as compilations with original selection and arrangement.
[ ] [Gate] No collection ships before its surface designs and photography are registered.

The material around the product

[ ] Register product photography as a standing habit, since it is copied wholesale by copyists who photograph nothing and it is the fastest enforcement asset the business will own.
[ ] Register catalogues and lookbooks as compilations with original selection, arrangement, and text.
[ ] Register room set and styling imagery, where the arrangement of a photographed interior involves creative choices and the resulting image is protected even though none of the objects in it is.
- Why. For a business whose products sit outside copyright, the photographs of those products may be the only copyright it reliably owns, which makes the imagery programme the centre of the enforcement strategy rather than an adjunct to it.
[ ] Audit the rendering studio agreements, since visualisations are increasingly the primary marketing asset and are frequently delivered under terms that assign nothing.
[ ] Register instruction and assembly materials, which are copyrightable, expensive to write, and reproduced by copyists precisely because writing them is tedious.
[ ] Treat product descriptions as literary works — thin, but real — since wholesale copying of catalogue copy is actionable and easy to prove.
[ ] Protect swatch libraries and specification sheets, which carry copyright in the presentation and trade secret value in the sourcing information they disclose.
[ ] Batch the registrations on the season calendar alongside the surface designs, so that every enforcement action for the following year has a registered work behind it.

Phase 4. Put the design filing calendar ahead of the show calendar

[ ] File before disclosure. 35 U.S.C. § 171 design patents carry a twelve-month domestic grace period and most commercially important jurisdictions have none.
- Trap. A collection shown at a trade fair and filed nine months later has lost the jurisdictions where the copies are made, which is the only place the loss matters.
[ ] Make the filing decision a standing item in collection planning, with a named person signing it off before any press preview, show booking, or retailer meeting.
[ ] File in layers: the whole piece, plus separate applications on distinctive components — a leg profile, an arm detail, a base, a handle.
[ ] Use broken lines to claim the contour that carries the recognition and disclaim the rest.
[ ] Weigh the remedy at 35 U.S.C. § 289, which permits recovery of the infringer's total profit on the article and justifies filing more applications than instinct suggests.
[ ] Understand the infringement test before choosing what to claim. Egyptian Goddess, Inc. v. Swisa, Inc. applies the ordinary observer test against the prior art, and in a crowded category a claim to a distinctive component may be broader in practice than a claim to the whole piece.
[ ] File on the mechanisms: reclining actions, adjustment systems, knock-down connectors, joinery innovations, and materials, facing the ordinary demands of 35 U.S.C. § 112.
[ ] Flag intended trade dress features before utility claims are drafted over them, since an expired utility patent covering a feature is strong functionality evidence supplied by the claimant.
[ ] [Gate] Nothing is disclosed publicly before the filing decision is recorded.

Phase 5. Build the trade dress evidence file

[ ] Choose two or three signature pieces. Not every product needs this, and a file covering everything covers nothing.
[ ] Accept the requirement. Product design trade dress always requires secondary meaning under Wal-Mart Stores, Inc. v. Samara Brothers, Inc., and functionality is an absolute bar under TrafFix Devices, Inc. v. Marketing Displays, Inc..
[ ] Organise evidence by design: advertising spend attributable to the piece, unsolicited press describing it, sales volumes by model, and any survey.
[ ] Run look-for advertising for the signature pieces, since copy directing consumers to a distinctive feature is the most persuasive evidence available and costs nothing extra.
[ ] Document non-functionality contemporaneously: alternative designs performing the same function; records showing appearance rather than stacking efficiency, comfort, structural performance, or manufacturing cost drove the choice; and an audit confirming no utility claim covers the feature.
[ ] File instances of competitor imitation as they occur, which is more persuasive than a retrospective search.
[ ] Document the showroom concept, since layout, fixtures, and presentation can be inherently distinctive trade dress following Two Pesos, Inc. v. Taco Cabana, Inc. — a materially lower bar than the products face.
[ ] Commission a survey before a dispute where the stakes justify it, since it is far harder to obtain credibly once litigation is on foot.
[ ] [Gate] No trade dress claim is asserted without the file.

Phase 6. Fix the designer and studio paperwork

[ ] Obtain express assignments signed before work starts.
- Why. An external designer owns the copyright in the drawings absent an assignment, copyright does not transfer by paying for the work, and the work made for hire route under 17 U.S.C. § 101 is narrow for commissioned works — requiring a signed writing and that the work fall within an enumerated category, which a furniture drawing does not obviously do.
[ ] Draft the royalty terms fully: what triggers a royalty, what happens on a reissue, whether it survives the designer's death, and whether the manufacturer may continue producing after the relationship ends.
[ ] Settle attribution and name use, including whether the designer's name may be used as a mark and what happens to that use after termination.
- Trap. A manufacturer that has built a collection around a designer's name with no post-termination right to use it has a problem it cannot fix later.
[ ] Confirm in-house designers are actually employees, since long-term contractors treated as staff are not and the work made for hire presumption does not reach them.
[ ] Allocate ownership in collaborations, because joint authorship arises by default and joint authors may each exploit the work subject to accounting.
[ ] Diarise termination rights under 17 U.S.C. § 203, which is live for designs assigned decades ago and now generating royalties for an estate.
[ ] Secure the archive: original drawings, specifications, and prototypes, since possession is what determines whether a reissue is faithful or an approximation.
[ ] [Gate] No design work begins without a signed assignment.

Reissues, estates, and licensed reproductions

Where the business produces or competes with authorised reproductions of mid-century designs, a distinct set of questions applies and the tools that matter are not the design ones.

[ ] Establish whether the design itself is free. A design patent from the 1950s expired long ago and copyright in the object was probably never available, so the shape may be copied lawfully — which means the enforcement conversation has to start somewhere else.
[ ] Confirm the name position. The designer's name, the model designation, and the manufacturer's brand are trademarks, and a copy sold under a designer's name is infringement even where copying the shape is not. Enforcement in this market runs through trademark rather than through design rights, which is counterintuitive to everyone involved.
[ ] Structure the estate licence as what it is: a trademark licence with quality control obligations, plus any surviving design rights, plus archive access. The archive is the part that determines whether a reproduction is faithful, and it is protected by possession and contract rather than by any registered right.
[ ] Exercise the quality control, since an uncontrolled licence supports an abandonment argument and the estate's mark is the whole basis of the arrangement.
[ ] Address publicity rights, since using a deceased designer's name and image to sell furniture engages post-mortem rights in the states that recognise them, and those regimes vary enormously in duration and scope.
[ ] Set the "in the style of" policy in advance. Retailers describe copies as inspired by a named designer; nominative use permits some of this and not where the use suggests authorisation. Apply the line consistently, because inconsistent enforcement produces adverse decisions the brand then lives with.
[ ] Note that moral rights are largely absent. The framework at 17 U.S.C. § 106A is confined to works of visual art as defined, and mass-produced furniture sits outside it. A unique or limited-edition art object is a different analysis, and a business producing both should know which of its products falls where.
[ ] Trace the licensor's own chain of title before paying for a licence, since estates and successor entities in this sector have complicated histories and a licence from a party without rights conveys nothing.

Phase 7. Get four clauses right in every factory agreement

[ ] Fix tooling and mould ownership. Whoever owns the tooling can make the piece, and a brand that funded the mould without saying so owns nothing while the factory can run it for a competitor.
[ ] Impose drawing and specification confidentiality, with marking at creation.
- Why. Technical drawings are the manufacturable form of the design, protected by trade secret and contract rather than by copyright — copyright in a drawing does not stop someone building the object — and the reasonable measures inquiry under 18 U.S.C. § 1839 is answered by what the brand actually did.
[ ] Prohibit overruns and secure audit rights over production records and inventory, not merely a prohibition.
- Trap. A factory producing authorised units at night for its own account makes goods that are genuine physically and unauthorised legally, which are trademark counterfeits and contract breaches at once.
[ ] Draft exit provisions covering tooling and drawings — return, destruction, or transfer — so production can move without rebuilding the tooling.
[ ] Allocate improvements developed during production, since the factory otherwise keeps the solution to a manufacturing problem the brand's design created.
[ ] Flow confidentiality down to sub-tier suppliers, who see the design and are usually outside the agreement entirely.
[ ] Screen the factory's other customers where practical, since the retailer's own-brand supplier is frequently the brand's own factory.
[ ] [Gate] No new tooling is commissioned before ownership is agreed in writing.

Phase 8. Control the geometry

[ ] Treat CAD and technical files as controlled assets, recognising that copyright protects the drawing and does not stop someone building from it.
[ ] Set a distribution policy for specification models: reduced-detail models for specifiers, full-detail files only under terms, and a record of who received what.
- Why. Manufacturers distribute models freely because specification drives sales, and those files are the product in transmissible form, directly usable for manufacture.
[ ] Confirm the business owns its renderings, since studios deliver visualisations under terms that frequently assign nothing and a brand that does not own its primary marketing asset cannot stop its reuse.
[ ] Apply watermarking and metadata to distributed files, which supports later proof of source.
[ ] Address augmented reality assets, which push the same geometry to consumer devices through a channel nobody reviewed.
[ ] Treat configuration data as an asset, since online configurators record what customers actually specify.
[ ] Search sharing platforms quarterly for the brand's product names, which reveals which components are being printed at home and therefore which spare parts are priced wrongly.
[ ] Understand the printed-part limits. A design patent claim reads on the object, not the file; the notice framework at 17 U.S.C. § 512 addresses copyright; and where the file was copied from the brand's own CAD, a copyright claim in the file is the cleaner route.
[ ] [Gate] No full-detail file is distributed without terms and a record.

Digital fabrication and printed components

[ ] Recognise the gap. A design patent claim reads on the physical object, not on the file that describes it; copyright in the file prevents copying the file but not building from it. Contract and access control do the work that rights do not.
[ ] Assess the spare parts pressure point. Consumers and independent repairers print replacement feet, brackets, connectors, and glides rather than buying them, and files for common parts circulate on sharing platforms. A spare parts business is defended by availability and price rather than by rights, because the rights reach the object and the object is being made at home.
[ ] Understand the limits of platform theories. The platform hosts a file, not an infringing article, and the notice framework at 17 U.S.C. § 512 addresses copyright rather than design patents. Where the file was copied from the brand's own CAD, a copyright claim in the file is the cleaner route.
[ ] Pursue commercial print bureaus where parts are produced at scale, since a bureau makes physical articles and the ordinary design patent analysis applies.
[ ] Mould marks into components where practical, since a printed copy reproducing the mark is a trademark counterfeit as well as a design copy, which adds a claim with better remedies and better platform processes.
[ ] Consider publishing replacement part files deliberately for older products, which costs a small parts business and buys goodwill, sustainability positioning, and control over geometry that would otherwise circulate as poor-quality reverse-engineered versions.

Phase 9. Manage retailer and private label exposure

[ ] File before selling in.
- Why. A design patent application filed before the first retailer meeting is worth more than every contractual protection combined, because it survives the relationship and does not require proving how the design moved.
[ ] Include non-replication terms restricting the retailer from producing a substantially similar item for a defined period.
[ ] Limit the specification handover to what compliance actually requires, marked and under terms.
[ ] Keep samples and dates, since a contemporaneous record of what was shown to whom and when is what makes the story provable and sales teams do not keep it unless asked.
[ ] Decide the enforcement posture in advance, because a brand that has never decided whether it would sue its largest customer will decide it badly, under pressure, in a week.
[ ] [Gate] Nothing is shown to a retailer before the filing decision is made.

Phase 10. Sequence the enforcement response

[ ] Run the inventory before the theory. Which design patents are in force? Is there a copyright registration on a separable element, and does it predate the infringement? Is there a trade dress file? Is the brand's photography being used? Is the copy sold under the designer's name?
[ ] Preserve evidence at the outset: dated screenshots, the listing as it appeared, seller account details, and a test purchase, since listings change and disappear.
[ ] Send the copyright claim first. Where a listing uses the brand's photography, a notice under 17 U.S.C. § 512 removes it quickly and the process is automated in a way trademark and design processes are not.
[ ] Follow with the design patent claim where one exists, through platform programmes that move slowly because the platform must compare designs.
[ ] Assert the trademark claim where the name is used, which is clean and well handled by platform processes, with 15 U.S.C. § 1125 behind it.
[ ] Reserve trade dress for litigation, not for a takedown queue.
[ ] Use counterfeit remedies for exact copies bearing the mark, where 15 U.S.C. § 1116 and 15 U.S.C. § 1117 supply seizure and enhanced damages against commercial-scale sellers.
[ ] Expect repeat sellers, since removing a listing removes a listing and the seller returns under another account. Platform-level account enforcement and occasional litigation with an asset freeze are what change behaviour.
[ ] Do not send notices you cannot support, since a misrepresentation carries its own liability and an unsupportable design patent assertion invites a declaratory action.
[ ] Say early when there is no case. A distinctive shape and outrage is not a claim, and exploring theories that will not survive a motion costs the client money and the adviser credibility.
[ ] [Gate] No enforcement letter goes out before the inventory is complete.

A note on order

The phases are ordered by dependency and by the cost of delay, and the ordering inverts how the work is usually commissioned.

Every business calls about a copy. The copy is visible, infuriating, and specific, and the instinct is to start there. Start with the registrations instead: the copy will still be there in a fortnight, and the registration that makes the claim economic cannot be obtained retroactively. That is the single most important sequencing point in this checklist.

The separability sort comes first because it determines which tool applies to which feature, and because the conversation it forces with the design team changes how the next collection is designed. Expect resistance and expect it to be worth having.

Registration drafting comes second because a badly drafted application produces a registration a defendant will attack, and a business that has registered broadly and wrongly is in a worse position than one that has not registered at all.

The registration habit and the filing calendar come next because both are prospective. Neither fixes the past, both apply from the day they are adopted, and every week of delay adds another collection that is disclosed unprotected or published unregistered.

Trade dress evidence, designer paperwork, and factory terms are all long-lead items. The evidence file takes years; the designer assignments require negotiations with people who already hold the rights; and the factory clauses can usually only be changed at an order cycle. Starting them late costs more than starting them imperfectly.

Digital file policy and retailer exposure are gates on specific events — a specification request, a first meeting — and they are cheap to have in place and expensive to construct under the event.

Enforcement sits last because it is the output of everything above. A business that runs Phase 10 without Phases 3 and 4 will find it has nothing to enforce, which is the discovery this checklist exists to prevent.

[ ] Check insurance cover for advertising injury and intellectual property claims, since general liability policies routinely exclude design and trade dress disputes and specialist cover is rarely purchased in this sector.
[ ] Confirm any lender's security description reaches the design portfolio, the registrations, and the tooling, since security packages in consumer goods businesses routinely name inventory and receivables and stop there.
[ ] Record which agreements change on a change of control — designer royalty arrangements, estate licences, factory terms, and retailer supply agreements — because each of them is a negotiation an acquirer inherits.

[ ] Confirm the season calendar has a named owner for registrations and filings who is not the person who did it once and then changed roles, since both habits collapse the moment they depend on an individual rather than on a process.
[ ] Diarise a twice-yearly review of the whole checklist, because collections turn over, designers change, factories change, and a position established eighteen months ago describes a business that no longer exists.

Outcome. A business that has run this checklist knows which of its features are copyrightable and which are not, holds registrations that issued before the copies appeared, files design applications before it shows at a fair, owns the drawings its designers made and the tooling its factory uses, and can remove a marketplace listing in a day because it registered its own photographs. Those are process outcomes rather than legal victories, and they are the difference between a business that can enforce and one that can only object.

Key Authorities at a Glance

| Authority | What it settles | Phase | |---|---|---| | 17 U.S.C. § 101 | Useful article definition; work made for hire | 1, 6 | | Star Athletica, L.L.C. v. Varsity Brands, Inc. | Two-part separability test | 1, 2 | | 17 U.S.C. § 102 | Subject matter of copyright | 1 | | 17 U.S.C. § 103 | Compilations and derivative works | 3 | | 17 U.S.C. § 203 | Termination of transfers by authors | 6 | | 17 U.S.C. § 504 | Damages, including statutory damages | 3 | | 17 U.S.C. § 505 | Costs and attorney's fees | 3 | | 17 U.S.C. § 512 | Safe harbours and notice procedure | 8, 10 | | Fourth Estate Public Benefit Corp. v. Wall-Street.com, LLC | Registration must issue before suit | 3 | | 35 U.S.C. § 171 | Design patents | 4 | | 35 U.S.C. § 289 | Total profit remedy | 4 | | 35 U.S.C. § 112 | Written description and enablement | 4 | | Egyptian Goddess, Inc. v. Swisa, Inc. | Ordinary observer test against the prior art | 4, 10 | | Wal-Mart Stores, Inc. v. Samara Brothers, Inc. | Product design trade dress requires secondary meaning | 5 | | TrafFix Devices, Inc. v. Marketing Displays, Inc. | Functionality is an absolute bar | 5 | | Two Pesos, Inc. v. Taco Cabana, Inc. | Trade dress can be inherently distinctive | 5 | | 18 U.S.C. § 1839 | Reasonable measures element | 7 | | 15 U.S.C. § 1116 | Injunctive relief and seizure | 10 | | 15 U.S.C. § 1117 | Damages for counterfeiting | 10 | | 15 U.S.C. § 1125 | False designation of origin | 10 |

The five things people get wrong

One: believing the design is copyrighted. Designers and founders assume that an original design is automatically protected, and for the shape of the object it is not. The misunderstanding is universal, it is rarely corrected because nobody asks, and it delays the design patent filing that would have protected the piece. The sort in Phase 1 exists to correct it in writing, early, before the next collection is designed on a false premise.

Two: showing before filing. The industry runs on trade fairs, and a collection is shown to the world months before anyone consults a lawyer. Twelve months of domestic grace is not protection in the jurisdictions where the copies are made, and by the time the copies appear the filing option has gone. The remedy is a standing item in collection planning and a named person who signs off before any disclosure — one line in a meeting agenda, and it decides more outcomes than anything else on this list.

Three: registering copyright when a copy appears. Surface designs are registered defensively, after the fact, which forfeits statutory damages and attorney's fees and converts an economic case into an uneconomic one. Registration belongs at design freeze, in a batch, alongside the photography, as a season calendar event that happens whether or not anyone is copying anything.

Four: funding tooling you do not own. The factory relationship is negotiated on price and lead time by people who never see the intellectual property clauses, and the tooling provision is whatever the factory's template said. The brand then discovers, when it wants to move production or when a near-identical piece appears under another label, that the mould it paid for belongs to someone else and can be run for anyone.

Five: distributing the geometry. Specification models go to any architect or designer who asks, because specification drives sales, and the file is the product in transmissible form. There is no meaningful control after distribution and no record of who holds what. Reduced-detail models for specification, full-detail files under terms, and a recipient log cost almost nothing and are the only thing standing between a design and a factory that has never met the brand.