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Mistrial in Trovata, Forever 21 Copying Case

Attorneys for Trovata said the company will seek a new trial against Forever 21.

SANTA ANA, Calif. — A mistrial was declared Wednesday in Trovata’s lawsuit alleging Forever 21 knowingly copied its designs.

This story first appeared in the May 28, 2009 issue of WWD.  Subscribe Today.

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.