Alexander Bigman
Can a design be too simple to trademark? Such was the argument of a furniture maker whose work for Kim Kardashian resulted in a lawsuit by the heirs of Donald Judd, the famous minimalist. The dispute arose from a YouTube video that Kardashian posted in August 2022, offering viewers an office tour of her now-defunct skincare brand, SKKN BY KIM. Partway through her tour, the celebrity entrepreneur pauses before a strikingly rectilinear table, surrounded by a matching set of plywood chairs whose backs align flush with the table’s surface. “If you guys are furniture people,” she says, “these Donald Judd tables are really amazing and totally blend in with the seats.”1
Except the table wasn’t a real Judd. It was a knock-off, designed by Kardashian’s decorator, Clements Design, to resemble the genuine article. The Judd Foundation asked Kardashian to remove the misleading video and to destroy the counterfeit furniture, which it offered to replace with an authorized version. When Kardashian declined, the Foundation filed several Lanham Act claims including false endorsement, against Kardashian, and trade dress infringement, against Clements.2
Donald Judd was, first and foremost, a sculptor. In the mid-1960s, he sidestepped the midcentury vogue for expressionistic painting by creating large, boxy constructions made of modern materials like plexiglass and galvanized iron. By employing simple geometric relationships and mathematical ratios to design his works, and leaving their production to a hired fabricator, Judd sought to withdraw his individuality from the resulting objects and instead afford his viewers an opportunity to focus on the “specific” perceptual qualities of a material or a volume.3
Later, Judd designed some furniture using similarly “minimalist” principles. The designs involved in the Kardashian dispute were Judd’s La Mansana Table and his Chair 84, both designed in 1982. As described in the Foundation’s complaint, the table is an “orthogonal and precise” object consisting of “rectangular, flat, straight, unadorned” surfaces and flush, right-angled corner legs that “evoke the seamless skeleton structure of a rectangular prism.”4 The straight-backed chairs likewise incorporate “unadorned, flat, straight, rectangular pieces meeting orthogonally,” but in place of legs, they have “unornamented cuboid” bases comprising square wooden planks arranged in ten different permutations.5 As a set, the table and chairs effectuate an “exploration of the geometry of lines, planes, and space [that] is ‘characteristic’ of Mr. Judd.”6
To state a claim for trade dress infringement, a plaintiff must allege that (1) its trade dress is nonfunctional, (2) its trade dress serves a source-identifying role, and (3) the defendant’s product creates a likelihood of consumer confusion.7 In its motion to dismiss, Clements argued that the Judd Foundation had failed, as a preliminary matter, to make clear what the purported trade dress even was. The Judd Foundation’s references to orthogonal lines and rectangular planes, Clements asserted, were simply too “generic” to delineate the boundaries of protectable intellectual property. After all, these basic attributes characterize the entire genus of minimalist design, a movement that extends beyond the work of Judd. In characterizing them as trade dress, the Judd Foundation was monopolizing a whole aesthetic, rather than protecting a narrow configuration of source-identifying traits.8
Judd had created a dilemma for himself. By purposely expunging expressionistic flourishes and other conventional markers of individuality from his work, he made it difficult to verbally delineate what makes his geometric designs distinctively his own, and not just “minimalist” in the broad sense. On paper his objects cannot help but sound generic. Yet in person they appear—at least to their target market—unmistakably “Judd.”
Judge Maame Ewusi-Mensah Frimpong, of the Central District of California, saw a way around this conundrum. At a minimum, she observed, the dimensions of the La Mansana table and Chair 84—which Clements had copied exactly—distinguish them from other minimalist designs.9 “Clements focuses on individual elements such as ‘orthogonal shape’ to argue that the design is generic but ignores the complete whole and other more distinct details,” she wrote.10 The individual characteristics of Judd’s furniture may be unprotectably simple or generic. In specific combination and scale, however, they might well add up to a proprietary trade dress.
Finding that the Judd Foundation had plausibly alleged all three prongs of trade dress infringement, Judge Frimpong denied Clements’ motion to dismiss. (She denied Kardashian’s as well). The parties then settled, bringing the improbable Judd-Kardashian saga to an end.
[1] MK, Welcome to my Office! Official SKKN BY KIM Office Tour, (YouTube, Mar. 5, 2024) (original video taken down, reuploded by another user).
[2]Complaint at 33–45, Judd Found. v. Clements Design, Inc., No. 2:24-CV-02496 (C.D. Cal. Mar. 27, 2024), ECF No. 1.
[3] See Donald Judd, Specific Objects, in Donald Judd: Complete Writings 1959–1975 181 (Press of the Nova Scotia Coll. of Art & Design 1975).
[4]Complaint at 11, Judd Found., No. 2:24-CV-02496.
[5] Id. at 12.
[6]Id. at 13.
[7] See Jason Scott Collection, Inc. v. Trendily Furniture, LLC, 68 F.4th 1203, 1212 (9th Cir. 2023).
[8]Mem. in Supp. of Mot. to Dismiss at 6–11, Judd Found., No. 2:24-CV-02496, ECF No. 21.
[9]Order Den. Mots. to Dismiss at 17, Judd Found., No. 2:24-CV-02496, ECF No. 66.
[10]Id.