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.

This story first appeared in the May 14, 2009 issue of WWD. Subscribe Today.

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.