The legal headaches continue to pile up for Forever 21, with a new copyright and trade dress infringement suit filed against it by Express last week.
This story first appeared in the June 29, 2009 issue of WWD. Subscribe Today.
In a complaint filed in U.S. District Court for the Central District of California, Express claims Forever 21 copied four of its copyrighted plaid patterns for men’s shorts that were introduced in its stores in December 2007. Additionally, Express is claiming trade dress infringement for a zippered jacket the specialty retailer introduced last December.
Under U.S. law, only original prints or original graphics on clothes can by copyrighted, not a garment’s overall design. Trade dress refers to the overall look of a product that connects it to a particular brand in consumers’ minds.
Forever 21 has been sued over 50 times in the past seven years for alleged intellectual property violations by competing retailers and designer labels. It has settled almost all of those cases out of court, but last month a case brought against it by California-based Trovata went to jury trial, ending in a hung jury. According to attorneys at New York-based Colucci & Umans, which represented Trovata, a lone holdout juror sided with Forever 21 in that case. A new trial is tentatively set for Oct. 13 in U.S. district court in Santa Ana, Calif.
Colucci & Umans is also representing Express in the most recent case against Forever 21. The complaint was received by Young Kwon, in-house counsel for Los Angeles-based Forever 21.
Forever 21 owners Jin Sook Chang and Do Won Chang are named as co-defendants in the Express case. When Jin Sook Chang took to the witness stand last month in the Trovata trial, she said the company had to trust the vendors and manufacturers, which supply it with thousands of designs.
“Sometimes we purchase an item and then we request the vendor to change the design to make them attractive,” Chang said. “When the fabric is good, then we ask them to find that particular fabric for us.”
Chang emphasized there has been continuing training at Forever 21 for the last four or five years to alert members of the buying team to items that might present legal issues.
Forever 21 operates 450 stores worldwide, and expects to post 2009 sales of $2.3 billion to $2.4 billion.
Express is owned by San Francisco-based Golden Gate Capital, a private equity firm that acquired the brand from The Limited in 2007. The company operates more than 550 stores in the U.S., with total annual sales of more than $1.8 billion.