creative commons photo credit: Polina Sergeeva

Our favorite tool for affordably acquiring what’s in trend is in deep with multiple fashion giants. Quite recently, Forever 21 was involved in a huge legal battle with Trovata when Trovata filed a Trade Dress suit against the retailer for allegedly copying a design belonging to Trovata. The case ended up going to trial, which resulted in a mistrial. In essence, a mistrial lets the accused off the hook and allows for a brand new trial to take place. This can be good or bad, depending on if the party suing has the money to prepare for a lengthy trial and discovery process again.

Trade dress refers to the overall visual characteristics of a product or its packaging. A popular example is the shape of the Coke bottle, which is a worldwide, easily recognizable shape. People see the shape of a Coke bottle and know it’s a Coke bottle. If another soda company created a product and put it in a bottle shaped exactly like a Coke bottle, that company may be guilty of infringing on Coke’s intellectual property rights. The key to Trade Dress is the popularity of the brand and/or the specific product. The specific design of the product must be well-known as belonging to a specific company. The consumer must successfully associate that specific design or shape with the company. In the Trovata case, Forever 21 was being sued for copying a striped, rugby-style shirt that was made by Trovata. The mistrial in this case probably stemmed from the fact that it’s difficult to associate “the rugby shirt” with Trovata. They definitely aren’t the only company who makes them. Yes, F21 used the same colors and overall striped design as the Trovata shirt, but there was no logo infringement and there is no copyright on a specific stripe color. Trade dress suits are relatively common in the fashion world, but only a small percentage are actively pursued because of the tedious, overly complex and expensive nature of issues surrounding intellectual property.

Forever 21’s “designer inspired” pieces, and their questionableness, are well noted on numerous fashion blogs and news sources. I’ve even covered a few “Copycat” pieces, comparing designer garments to pieces produced by Forever 21 that are pretty much exact replicas of each other. Granted, the Forever 21 items in no way compare to the craftsmanship quality of the designer items, but that significant difference isn’t always easily noticed by the untrained fashion eye. I’m sure you’ve purchased an item or two from Forever 21 because it “looks exactly like” a designer item you saw at a higher-end store – an item that probably ran well over $200. It’s ok, I’ve done it, too. Honestly, I don’t think there’s anything wrong with it. Unfunded girls deserve to be trendy too, right?

Well, now Forever 21 has a brand new legal battle to fight. This time it’s with Express, who is suing Forever 21 for Trade Dress and is using the same attorney who represented Trovata (he has been Express’s attorney for years). Express is claiming that Forever 21 copied its designs when it produced four men’s shorts and a track jacket. Express also claims that Forever 21 is involved in a “shop and copy” scheme, in which the budget chain buys higher end pieces from its competitors and requests its manufacturers to “copy” those pieces. The copied pieces are then sold in the Forever 21 stores for prices well below the designer piece. The garments can be sold for such a low price because F21 uses lower quality fabrics, patterns and craftsmanship than the original designer’s item. This is, most likely, apparent to anyone who purchased something from Forever 21, only to have it fall apart after one washing. It will be interesting to see how far this complaint goes and whether or not it will end up at trial.

This specific topic of purchasing items from discount stores that look remarkably similar to designer items is a very debated topic in the fashion world. On the left you’ve got those who believe that fashion should be accessible to all, even if it means a few “designer inspired” pieces being sold (and I’m not just talking about China Town handbags and sunglasses), and on the right you’ve got the true fashion purists who think designer items should be designer items, allowing absolutely no room for imitation (or affordability). Then there are those who occupy the gray areas, who think it’s ok for design to be inspired but that it shouldn’t cross the line of blatant copying. Imitation can go both ways, though. Fashion megawatt Diane Von Furstenberg was recently involved in a situation where she was accused of ripping off an indie designer’s design. She was, of course, mortified when she learned of the accusation and ended up compensating the designer. So, it’s not always the big-time designers who are affected.

In response to the controversy, the fashion industry is fighting back by trying to get legislation to pass the Design Piracy Prohibition Act. This Act will essentially make it extremely difficult for stores like Forever 21 to produce designer look-alike pieces. Read the bill at the U.S. Congress website, along with related blog posts and discussions. There is also a bill progress widget at the bottom of this article.

This is one topic that I am seriously encouraging my readers to discuss because, depending on the outcome of the legislation, it is something that can seriously affect the fashion industry. WHAT DO YOU THINK?

19 Responses to “Fashion Fight Club: Legal Troubles for Forever 21”