SANTA ANA, Calif. — A mistrial was declared Wednesday in Trovata’s lawsuit alleging Forever 21 knowingly copied its designs.
Attorneys for Trovata said the Newport Beach, Calif.-based sportswear company will seek a new trial.
U.S. District Court Judge James V. Selna dismissed the jury of six men and two women after they were unable to reach a decision, apparently because of one holdout. Deliberations began on Thursday.
Juror Stephen Sharp concluded Trovata had not proved 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 , which links it to a particular brand in consumers’ minds, constituted an infringement of Trovata’s intellectual property.
Sharp said Trovata was not a company with widely recognizable design characteristics. “It really hadn’t planted itself in the public’s mind,” he said. “It is not like a Rolex watch. Trade dress by its very nature requires a level of familiarity by the public beyond what Trovata has achieved. They are a new, young company.”
But juror Michael Marien said just because Sharp wasn’t familiar with Trovata’s unique design elements doesn’t mean they don’t exist. “I favored more of what Trovata had to say,” he said. “I know retailers team with designers. Maybe Forever 21 should have gone to Trovata and said ‘We’d like to license.’”
The Trovata lawsuit came to trial on May 12 after two years of legal maneuvering and the case was viewed as a potential linchpin in clarifying intellectual property rights in an era when knockoffs of runway looks often appear in specialty chains before designers’ original versions hit stores.
“This is a long battle for our industry,” Trovata founder John Whitledge said after the mistrial. “We are not just representing ourselves.”
Trovata alleged the $1.7 billion cheap chic retailer turned out 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 suit covered seven Trovata pieces, including cardigans, hoodies, shirts and a jacket from fall 2005 to early 2006.
Los Angeles-based Forever 21 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.
Trovata did not seek trademark protection for its garments, leaving trade dress as the only legal course of action, one often difficult to prove. For trade dress to be protected, it must be instantaneously identifiable in the mind of the purchaser and the features in question must not serve a functional purpose — like zippers used decoratively, rather than for garment closure.
Ann Cadier Kim, chief financial officer of Forever 21, suggested that legislators may need to clarify intellectual property issues in design. “I feel it is a shame we don’t have more defined laws than trade dress,” she said.
U.S. copyright laws do not protect the basic design, silhouette or form of a garment. Under existing law, only original artwork, such as graphics or prints on clothing, can be copyrighted.
Trovata was seeking a multimillion-dollar award for actual and punitive damages.
“We were disappointed, obviously, that they couldn’t come to a decision, but this is only the beginning,” said Frank Colucci, a lawyer for Trovata. “As long as we keep the spotlight on Forever 21, I think the designers will benefit.”
Forever 21 attorney Bruce Brunda said, “It is hard to have a positive reaction when there’s no verdict. It is just not something you can draw a lot from.”
The Trovata lawsuit, unlike the more than 50 suits brought against Forever 21 in the last three-and-a-half years by companies such as Diane von Furstenberg, Anna Sui, Anthropologie and Bebe, did not allege copyright violations. The other suits were settled out of court.
“Azzedine has been one of the biggest influences in my life. He has always been such a strong, loving, fatherly figure to me. I call him Papa. His designs are indescribably unique, they are pieces of art. He knew how to make the female form look its loveliest. I have so many memories of him; my favorite might be during my first show with him in Paris. He liked me and he wanted to help me get more work. He called all his friends at Kenzo and Comme des Garcons, and asked them to book me. They said, ‘But she can’t walk!’ And he said, ‘but she has such a great ass!' His friendship and support has been the great privilege of my career. I can't imagine life without him. Repose en paix mon Papa.” - @stephanieseymour tells @wwd. #wwdfashion (📷: @steveeichner) #alaia #azzedinealaia
Azzedine Alaïa, flanked by two of his closest friends, models Stephanie Seymour and Naomi Campbell.
He designed Seymour’s dress for her 1995 wedding to Peter Brant, and treated Campbell (who famously called him Papa), like a daughter. For more on the legendary designer, tap the link in bio. #wwdfashion #alaia #azzedinealaia
Azzedine Alaïa's “I-did-it-my-way” ethos stood out starkly at a time when brands are experimenting with consumer-facing fashion shows, coed formats and trans-seasonal collections – anything to perk up lackluster sales of ready-to-wear in an age of Insta-everything. “It’s not creation anymore. This becomes a purely industrial approach,” the late designer told WWD in an interview last year. “But anyway, the rhythm of collections is so stupid. It’s unsustainable. There are too many collections.” Read more about the iconic designer’s life and work on wwd.com, link in bio. #wwdfashion #azzedinealaia (📷: @WWD Archive, 1986) #alaia
Sneaker reselling app @goat’s latest exhibit, "The Greatest: New York," tells the story of New York's sneaker culture. To celebrate the exhibit, an intimate crowd gathered on Thursday night at the pop-up gallery space, located at Platform in Culver City, to hear guest speaker and illustrator @esymai talk about her own rise in streetwear and women in the business. "For me I'm just someone who is creative. I like to create things," said Chang. #wwdfashion
Azzedine Alaïa, one of the most iconic couturiers of the modern era whose body-con designs defined Eighties fashion, has died in Paris. The diminutive Tunisian-born designer, known for his structured knitted dresses with fitted waists and impeccably cut, figure-hugging second skin silhouettes was deeply admired by his peers, and counted supermodel Naomi Campbell - his adoptive daughter - among his inner circle, one of a gang of glamazons including Farida Khelfa, Carla Bruni and Stephanie Seymour who became ambassadors of his style. (📷: Alexandre Guirkinger) #wwdblast