SANTA ANA, Calif. — Lawyers for Trovata and Forever 21 gave impassioned closing arguments Thursday to a federal jury that will determine whether the cheap chic retailer knowingly copied Trovata’s designs.
This story first appeared in the May 22, 2009 issue of WWD. Subscribe Today.
“This is about a lot more than buttons and threads,” Frank Colucci, who is representing Trovata, told the jury of six men and two women in U.S. District Court here. “It’s about how an array of unique elements is combined to embody the ‘twisted preppy’ look for which Trovata is known and praised.”
Colucci accused the $1.7 billion retailer of “a chilling lack of remorse by a company that thinks it’s too big and too busy to play fair and decent.”
But Forever 21 lawyer Bruce Brunda countered: “You would need a telescope, or at least binoculars” to find the features Trovata alleges were copied “on anyone walking down a runway in a fashion show.”
He said “substantive changes were made” to the garments sold by Forever 21. “Where is that wrong?”
Los Angeles-based Forever 21 has conceded the similarities between its garments and those of Trovata, but insisted that it broke no laws because the disputed designs were not unique to Trovata.
The outcome of the case in U.S. District Court here may clarify intellectual property rights in an era when knockoffs of runway looks often appear in specialty chains before designers’ original versions hit stores. The jury, which is expected to begin deliberations today, will consider whether the retailer produced near-identical copies 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 Trovata’s lawsuit is whether Forever 21’s combined use of largely minute design elements, such as evenly spaced four-hole buttons, a round zipper pull or alternating stripes in contrasting colors (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.
Trovata did not seek intellectual property protection for its garments, leaving trade dress as the only legal course of action, one often difficult to prove. For trade dress to be protected, it must be instantaneously identifiable in the mind of the purchaser and the features in question must not serve a functional purpose — like zippers used decoratively, rather than for garment closure.
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, a sportswear label based in Newport Beach, Calif., and headed by founder John Whitledge, is seeking a multimillion-dollar award for actual and punitive damages.
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, did not allege copyright violations. The other suits have been settled out of court.