SANTA ANA, Calif. — The federal jury deliberating allegations that Forever 21 knowingly copied the designs of Trovata told a judge Tuesday that it was deadlocked.
This story first appeared in the May 27, 2009 issue of WWD. Subscribe Today.
Judge James V. Selna disclosed in U.S. District Court here that he received a note from the panel expressing concern that one juror was incorrectly applying the law, as well as a perception of misconduct. He did not provide details, but said, “It’s dangerous business starting to look for misconduct.”
Selna said the jury of six men and two women had asked for legal clarifications. The jurors will return today in an effort to work out their differences and avoid a potential mistrial. They began deliberating on Friday.
The outcome of the case may clarify intellectual property rights in an era when knockoffs of runway looks often appear in specialty chains before designers’ original versions hit stores. The jury is considering whether the cheap chic retailer produced near-identical copies of pieces worn on the runway or published in magazines — in one instance with labels inside a hoodie that were unique to Trovata.
The core of Trovata’s lawsuit is whether Forever 21’s combined use of largely minute design elements, such as evenly spaced four-hole buttons, a round zipper pull or alternating stripes in contrasting colors (the legal term for which is “trade dress” — the visual appearance of a product that links it to a particular brand in consumers’ minds), constitutes an infringement of Trovata’s intellectual property.
The suit covers seven Trovata pieces, including cardigans, hoodies, shirts and a jacket from fall 2005 to early 2006.
Los Angeles-based Forever 21 has conceded the similarities between its garments and those of Trovata, but insisted that it broke no laws because the disputed designs were not unique to Trovata, which has headquarters in Newport Beach, Calif.
Trovata, headed by founder John Whitledge, is seeking a multimillion-dollar award for actual and punitive damages.