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.
“These collections continue to build on that vision, empowering differently abled adults to express themselves through fashion,” said @tommyhilfiger of his line of adaptive apparel, which launches today. The line consists of 37 men’s and 34 women’s styles based upon the pieces from the spring Tommy Hilfiger sportswear collection. #wwdnews
“Stranger Things” is getting a new cast member for season 2. Meet @sadiesink_, the 15-year-old who will be joining the Netflix series for its new season. You may recognize her from “The Glass Castle” with Brie Larson and Woody Harrelson, but the Texas native’s next role goes in an entirely different direction. She describes her character, Max, as “a rough and tumble skater girl [who] becomes friends with the boys at school.” The second season debuts on October 27. (📷: @jgreenery) #wwdeye
Amid the Harvey Weinstein controversy, there’s another sector that’s being put under the spotlight for sexual abuse: the modeling industry. While rumors about abuse and sexual harassment of female and male models — and the photographers, agents and others who perpetrated it — have circulated within the fashion world for years, model @cameronrussell started posting stories from models on Instagram last week about abusive situations they’ve encountered — from sexual harassment and molestation to attempted rape. Over 75 have weighed in so far. Read more on WWD.com. Link in bio. #wwdnews
To celebrate its 16th anniversary, @dylanscandybar tapped designers and celebrities to create mosaics out of candy. The mosaics will be auctioned off to support the philanthropic cause of each participant’s choice. Pictured here is the mural created by @aliceandolivia's Stacey Bendet. For a first look at some of the other artwork being unveiled tonight, go to WWD.com. #wwdeye
The annual Veuve Clicquot Polo Classic in Pacific Palisades this weekend drew Kate Hudson, Tracee Ellis Ross, Laura Dern and more. See pictures of the star-studded event on WWD.com. (📷: @chelsealaurenla) #wwdeye
In his new book “Hollywood Royale,” Andy Warhol’s Protégé Matthew Rolston celebrates the Eighties revival of Hollywood glamour. Featuring more than 100 portraits taken by Rolston from 1977 to 1993, the book contains photos of icons like Michael Jackson, Cyndi Lauper, and @drewbarrymore, pictured here in 1991. “Hollywood Royale,” out today, will be accompanied by an exhibition opening at Los Angeles’ Fahey/Klein Gallery on March 1. #wwdeye
"Nowadays when life is not so happy with everything going on in the world, I think people come to me for a little bit of whimsy and color and fun." - Designer Rebecca De Ravenel on her cult-favorite jewelry line. (📸 : @vsteves) #wwd40
“Everyone is talking about how the retail industry is struggling, but I think it’s an incredible time because brands who are doing something different and innovative are setting themselves up for the future,” said @adamgoldston, who founded the luxury athletic brand @apl with his brother @ryangoldsten. The Goldston’s are part of WWD’s 40 under 40: a group of industry notables. See the rest of the list on WWD.com. (📷: @vsteves) #wwd40
@eyeswoon blogger Athena Calderone debuted her first-ever cookbook, “Cook Beautiful,” which is heavily centered on the presentation and visual expression of food. Pictured here are her miso glazed carrots from the book. Get the recipe on WWD.com. (📷: @johnny_miller_) #wwdeye