SANTA ANA, Calif. — Forever 21 Inc. co-founder Jin Sook Chang took the witness stand Tuesday to defend her $1.7 billion company against charges by Trovata that the cheap-chic retailer copied its designs.
This story first appeared in the May 20, 2009 issue of WWD. Subscribe Today.
Speaking through a Korean translator, Chang said she had little knowledge of the company’s finances and she was not even aware of the Trovata brand until after the lawsuit was filed.
Trovata lawyer Frank Colucci asked Chang to examine the Forever 21 merchandise Trovata alleges was copied and the originals. Glancing at a Trovata striped cardigan and the alleged copy, Chang said, “Even at Gap, Old Navy and those stores, they sell this similar type of stripe. It is available at all places. I don’t know why this became the issue…stripes, they are always similar.”
She said she didn’t know how particular garments were made because “we simply trust the vendors and they manufacture the garment for us.”
Explaining Forever 21’s merchandise selection process, Chang testified that vendors supply samples that are either approved or dropped by a buying team of six to seven members, which she heads.
“We choose pretty ones,” she said of the samples.
The team infrequently purchases clothing from retail competitors, and when it does it asks vendors to alter them for Forever 21 stores, she said.
“Sometimes we purchase an item and then we request the vendor to change the design to make them attractive,” Chang testified. “When the fabric is good, then we ask them to find that particular fabric for us.”
Chang emphasized there has been continuing training at Forever 21 for the last four or five years to alert members of the buying team to items that might present legal issues.
“We are reviewing all the items that might cause legal problems, but we thought this particular stripe [referring to a shirt that was allegedly copied] would not cause any problems, so we didn’t review this,” she said.
Outside of her role as head buyer, Chang testified she knows little about the workings of Forever 21. She could not identify the officers of the retailer, other than her husband, company co-founder Do Won Chang, who is chief executive officer. She said she had never seen the company’s financial statement.
Asked by Colucci whether she would be “surprised” if Forever 21’s sales exceeded $1.5 billion annually, Chang responded, “Yes, it’s surprising. I didn’t know.”
The trial, which got under way May 12 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.
Trovata, based in Newport Beach, Calif., and headed by founder John Whiteledge, is seeking a multimillion-dollar award for actual and punitive damages.
Trovata has filed a lawsuit alleging 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.
The core of case is whether Forever 21’s use of similar design elements, such as buttons or color patterns (the legal term for which is “trade dress” — the visual appearance of a product that links it to a particular brand in consumers’ minds), constitutes an infringement of Trovata’s intellectual property.
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.
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, does not allege copyright violations. The other suits have been settled out of court.
Los Angeles-based Forever 21 has conceded there are similarities between its garments and those of Trovata, but insists that it broke no laws because the disputed designs are not unique to Trovata.