SANTA ANA, Calif. — Trovata charged in federal court that Forever 21 knowingly copied its clothing, and the cheap-chic retailer argued that the disputed designs are not unique to Trovata or protected under the law.
The outcome of the trial, which got under way late Tuesday afternoon in U.S. District Court here after two years of legal maneuvering, could clarify intellectual property rights in an era when facsimiles of runway looks are likely to appear in global specialty chains before the designers’ original versions hit stores.
“Much the same as a music composer, [the designer] takes notes, chords, sharps and flats and combines them and arranges them to make original music,” Trovata attorney Frank Colucci said in his opening statement to the jury of six men and two women. “The notes, the chords, the sharps and flats are all known; it is the way they are combined and arranged that make new music.”
Forever 21’s attorneys acknowledge that the designs are similar, but maintain the similarity does not constitute an infringement, contending that in most cases Trovata’s claims are limited to uses of buttons and other relatively common materials. The lawsuit is “an attempt to come up with a back-door patent or back-door copyright,” said lawyer Bruce Brunda, who is representing Forever 21.
“Much like a recipe for something like apple cobbler, Trovata is saying they didn’t invent the apples or the cinnamon or the sugar, but they are claiming the right to the combination,” Brunda told the jury.
Trovata, based in Newport Beach, Calif., alleges that Forever 21 turned out near-identical knockoffs of pieces worn on the runway or published in magazines — in one instance with labels inside a hoodie that were unique to Trovata.
At the heart of the case is whether Forever 21’s use of similar design elements, like buttons or color patterns, constitutes an infringement of Trovata’s intellectual property, called “trade dress,” the legal term for the visual appearance of a product that links it to a particular brand in consumers’ minds.
The suit covers seven Trovata pieces, including cardigans, hoodies, shirts and a jacket from fall 2005 to early 2006.
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 is headed by co-founder and designer John Whitledge, who began testifying late Wednesday. The firm is seeking millions in damages for trade dress infringement.
“This is very important to the fashion industry,” Whitledge said outside the courtroom. “So many designers have struggled with this and can’t defend themselves. This is a long and expensive process.”
After the day’s proceedings, Brunda said, “There’s absolutely no consumer recognition of these [disputed] elements, no consumer testimony, so this amounts to a hypothetical case of recognition, and that doesn’t constitute trade dress.”
Los Angeles-based Forever 21 has been sued some 50 times for copyright violations in the recent years by companies such as Diane von Furstenberg, Anna Sui, Anthropologie and Bebe. This is the first time the chain has faced a jury trial. The retailer has settled cases out of court.
There'll be no rest for those headed to Europe for men's, as Paris just closed the gap with Milan. According to a provisional calendar released by the Chambre Syndicale, Paris Men's Week will now open a day earlier on January 16. See new highlights on the official lineup on WWD.com. #wwdnews #wwdfashion (📷: @kukukuba)
BREAKING: Jonathan Saunders is leaving @DVF. The designer has resigned from his position as chief creative officer of Diane von Furstenberg, the company said in a statement on Friday. At the time of his hire, von Furstenberg said Saunders’ arrival symbolized and facilitated her stepping back from the day-to-day duties that occupy the work of a full-time creative director. The British designer joined DVF in May 2016 and was in charge of all product categories. #wwdnews
For @versace_official’s spring ad campaign, the brand emphasized the archival prints from the spring tribute collection dedicated to the late Gianni Versace. Closing out the show were five of Gianni’s favorite models: Cindy, Naomi, Carla, Helena, and Claudia. Bowing on December 18, the new campaign is yet another tribute to supermodel-dom as the images by Steven Meisel are fronted by @iamnaomicampbell, @cturlington, @gisele and more. #wwdfashion
Four-time Oscar-nominated actress Annette Bening has been waiting 20 years to play Gloria Graham in "Film Stars Don't Die in Liverpool," which will be released on December 29. The movie about Graham – a Hollywood star known for her controversial relationship with a younger Englishman named Peter Turner – is based off a memoir Turned wrote. "She felt vulnerable to him, because she loved him, she really did love him. And anyone that we really truly are in love with, we re vulnerable to in a very deep way," said Bening. Read our full interview with the modern icon of an actress on WWD.com. #wwdeye (📷: @ninebagatelles; Styled by @cristinaehrlich)
The crisp white button down: a staple that can be dressed up or down and accessorized throughout the decades. Here, on a Art Basel-goer in 2017 on the left and on the iconic Audrey Hepburn in “Roman Holiday” in 1953 on the right. #tbt #wwdfashion (📷: Andrew Morales)
Known for her work with @victoriassecret, 25-year-old model @georgiafowler is raising her profile in Hollywood. Fowler stars in @vincecamuto’s holiday campaign, which launched in partnership with “Pitch Perfect 3.” “Almost every shoot with Vince Camuto, I’ve had to face a fear…It was definitely a challenge. I’m so grateful for it, though. I’ve always wanted to be a pop star, so that was the perfect chance,” Fowler said. Head to WWD.com to read about Fowler’s experience modeling, including at the #VSFashionShow, and her relationship with Nick Jonas. #wwdeye (📷: @jilliansollazzo)
EXCLUSIVE: Huda Kattan just became the first beauty influencer to land a major beauty deal. Kattan's business, @hudabeauty, has received a minority investment from private equity firm TSG Consumer Partners. The brand, which industry sources say is on track to do $200 million in retail sales for 2017, will receive support on product, retail and geographic expansion through the deal. Get all the details on the deal and read @_a_collins' interview with Kattan on WWD.com. Link in bio. (📷: @jgreenery) #wwdbeauty #wwdnews
Peruvian model @juanaburga_official – who is known for walking the runways of @rodarte, @viviennewestwood and @torybuch – is making the move to the big screen with drama “Los Últimos.” The film premiered in Argentina in November and arrives in the U.S. and Europe in 2018. On making the switch from modeling to acting, Burga told WWD: “It’s a completely different thing – a lot of people think it’s similar or try to connect things, especially like getting used to the camera or being looked at all the time or playing these different characrers, but film is a completely different story.” #wwdeye (📷: @jgreenery)
London’s newly opened @designmuseum will look back on the life and work of Azzedine Alaïa in a show that the designer helped to curate before he died of heart failure last month. The retrospective, which Alaïa had worked on with Mark Wilson, chief curator of the @groningermuseum, will look at the impact of his work worldwide. The show, “Azzedine Alaïa: The Couturier,” will run from May 10 to October 7. Read more about the exhibit on WWD.com #wwdnews #wwdfashion (📷: @zefashioninsider)