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After two years of legal wrangling, Trovata’s lawsuit alleging that cheap-chic retailer Forever 21 copied its designs is headed to trial next month, and the outcome could have implications for both vendors and retailers in this age of fast fashion.
Barring a last-minute settlement, lawyers familiar with Forever 21’s extensive litigation history said this would be the first time the rapidly expanding retailer faces a jury that will determine whether it illegally clones other companies’ designs. The result could be a clarification of intellectual property rights in an era when facsimiles of runway looks often appear in multinational specialty chains before a designer’s original version has a chance to hit stores.
The federal court case involves seven garments Forever 21 sold in its stores in 2007, said to look identical, or almost identical, to garments designed by Trovata and publicized on the runway or in magazines. One Forever 21 garment also had an inside label that was a near representation of Trovata’s distinct label at the time.
Trovata’s attorneys argued the alleged copying of the designs constituted trade dress infringement. Trade dress is the legal term for the visual appearance of a product that links it to a particular brand in consumers’ minds. Trovata, which is headed by founder and designer John Whitledge, is seeking a multimillion-dollar award for actual and punitive damages.
Unlike other suits brought against Forever 21 in recent years by companies such as Diane von Furstenberg, Anna Sui, BeBe Stores and Anthropologie, the Trovata suit does not allege copyright violations. Under current law, only original prints or graphics on clothes can be copyrighted — as they are considered artwork — and Trovata’s suit focuses on Forever 21’s copying of its unique button placements, decorative stitching, fabric patterns and other details.
Although U.S. copyright laws do not protect a garment’s basic design, silhouette or form, legislation is pending in Congress — supported by the Council of Fashion Designers of America — to expand copyright laws to the “appearance as a whole of an article” of clothing. The Design Piracy Prohibition Act has stalled in committee. Critics contend its provisions are too sweeping and would stifle competition and commerce in the apparel industry.
Forever 21 concedes in court papers that there are similarities between the Trovata and Forever 21 garments, but asserts it broke no laws.
“Trovata is claiming that certain button patterns and stripes on a sweater would cause consumers to associate the garments with its brand, but there is no evidence to suggest that consumers would be confused,” said Bruce Brunda, an attorney for Forever 21. “Forever 21’s products are only sold in Forever 21 stores and are labeled with Forever 21’s brand. The design features on the Trovata designs are rather generic and are not protected by copyrights.”
The trial is scheduled to begin May 7 in U.S. District Court in Santa Ana, Calif.
“It’s a difficult case, and they are putting up a substantial fight, but we believe that Forever 21 willfully and intentionally copied the designs of our client, in violation of a number of laws,” said Frank Colucci, a lawyer for Newport Beach, Calif.-based Trovata.
A separate lawsuit Anthropologie filed against Forever 21 does include allegations of copyright violations, as the Urban Outfitters-owned chain said Forever 21 copied a number of its patterns.
In a March 13 order in the case, U.S. District Court Judge Michael Dolinger in Manhattan reprimanded Forever 21 for deceptive conduct during the discovery phase. He added, “We note the extraordinary litigating history of this company, which raises the most serious questions as to whether it is a business that is predicated in large measure on the systematic infringement of competitors’ intellectual property.”
Gregory Gulia, an attorney for Anthropologie, said he believes Forever 21 is willing to risk the lawsuits because duplicating designer looks is a lucrative business strategy. Forever 21 has been sued more than 50 times for copyright infringement in the last three years. The retailer has settled such cases out of court.
Robert Powley, an attorney for Forever 21 in the Anthropologie case, said copying of designs is rampant in the fashion industry, with vintage garments used by many designers as reference points in their work.
“It can be very hard for a company the size of Forever 21, which is producing thousands, if not hundreds of thousands, of designs every year, to know if every design is original or based on designs that are in the public domain,” he said. “Even if you take every garment in question in all these lawsuits, it would account for much less than 1 percent of Forever 21’s products. They take this issue very seriously and are working hard to prevent this from happening.”
Founded in 1984 by Korean immigrants Do Won Chang and Jin Sook Chang, Los Angeles-based Forever 21 operated 440 stores globally as of March 1, with 2008 sales of $1.7 billion. The company estimates total sales this year will be $2.3 billion.