5.22.2009

Forever 21?

[UPDATED 5/27/09--The whole thing came crashing down on a mistrial, which means both sides have to start the trial process all over again. In my personal opinion, I think the odds are slim for a second trial to go all the way to verdict, if it gets tried at all. Then again, people thought it wouldn't have gotten tried in the first place...]

Trademark and Copyright are definitely on the list of my favorite classes throughout my very long stint in academia (along with 20th Century American Literature, Shakespeare and, oddly enough, Physical Chemistry). They are loads of fun, but definitely not easy (copyright is particularly intricate). One of the topics we studied in Copyright was fashion, which, of course, got my attention. It was quite shocking to me that some things that seemed like blatant copying was not infringing, while certain uses of copyrighted materials, which resulted in some very different products, were infringing. Yes, it is that complicated. It really depends on how the issues are framed, and what the facts are, but generally speaking, it has been very difficult to prove copyright infringement in fashion design.

Forever 21 is an establishment that epitomizes "cheap chic." While it was not a case study in my classes, everyone pretty much knows that sooner or later, it would become one. It would have been very hard to catch the people who run it for copying designs alone under the existing state of copyright law, and so, runway- and red carpet-"inspired" styles have been made abundantly available to the masses at a tiny fraction of the cost of the Real McCoy. Most designers are irate about the inability to do anything about it (and rightly so, for the most part), and it seems as if stores like Forever 21 would be able to copy with impunity for, well, forever.

Until now, perhaps.

Trovata sued Forever 21 for copying its designs. This would have been just a splash in the pond, as Forever 21 predictably gets sued all the time for the same thing. What makes this stand out from the many lawsuits Forever 21 got involved in is the theory under which they were sued--trade dress infringement--and the fact that it got tried in the first place and went all the way to the jury. [Since I was doing edits for grammar anyway (I was tired when I wrote the initial post), I figured I'd go back to my old notes and find a definition of trade dress. It is defined as "the total image of the business." Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992). It includes the shape or general appearance of the exterior, the inside floor plan, color/color combinations, etc. (if you haven't guessed by now, Taco Cabana is a restaurant).]

I find that going after trade dress is an interesting and arguably stronger approach than plain ol' copyright infringement. Trovata claims that certain elements of their clothing, such as the buttons, stitching, stripes, etc. make them unique in such a way that people who see it would associate the clothing with the Trovata label. Hence, stealing the design is more than just stealing a design--it's almost like stealing or taking advantage of an established brand. (An oversimplification, but you get the idea.) I'm a total geek about this stuff, so I find it interesting, but I think some of the deposition testimony would be rather entertaining to the casual observer. [If you want to learn more, I found a very instructive and easy-to-understand white paper from the Morgan Lewis firm.]

So what does this mean for bargain shoppers? I don't know whether Trovata's arguments would prevail, but if a verdict comes down in its favor, it might have a big effect on copycat fashion. But then again, the case may settle and the status quo goes on, or the ruling might not do much for designs that are not associated with branding. Either way, I think it may create a short-term situation in which retailers would be a little more cautious; even if the outcome is uncertain, it might not be worth the cost of slugging it out.

In the long run, it might not matter much. There will always be accusations of who is copying who, but in fashion, many creations are inspired by others, so there will always be a place for some copying (just not blatantly). From a business standpoint, a lawsuit might be a "cost" that copycats are willing to take if they think enough people buy the knockoff to offset it. There is certainly enough consumer demand for "inspired" pieces, since many people who want to look stylish can't afford to spend that much on "the real thing."

Personally, I don't think this whole brouhaha will affect me much. I don't have a particular interest in buying knockoffs just so I can dress like a celeb or look trendy; it is my belief that people in the know can always tell when it's not the real thing, so why bother trying to pretend? However, if something in Forever 21 happens to be "inspired" and I like it, I'll buy what I like. While I may find something that resembles the "real thing," I just won't seek out blatant copies.

What do you think?

6 comments:

Muttersome said...

I would really agree with you, mostly because I don't think that the majority of F21 shoppers know that they are buying Trovta/DVF knockoffs in the first place. Those that do, however, certainly have some idea of getting a "cheaper" version.

I'd think that the hardest argument to make is proving harm, because Trovata would probably have a difficult time showing that it's losing shoppers to F21. Anyone who has the cash to buy Trovata would almost certainly prefer to do so, since the quality is so much better.

Sales Rack Raider said...

Great observations. I agree that all the copycats would try to argue that "no harm, no foul" since there are "parallel markets" for the high-end and knock-off goods; that might go to de minimis damages in the conventional tort sense, but statutory provisions allow for recovery of infringer's profits once infringement is found. But I think the real problem, as you pointed out, is that most F21 shoppers don't even know they are buying knockoffs. That would be a problem for the party claiming that its design is essentially a branding device.

Given the 9th Circuit's crazy 8-factor test for "likelihood of confusion," it's a real toss-up.

Elaine said...

I heard about F21 being sued but wasn't sure of the details. And yeah, it is hard for clothing manufacturers to be original when everyone is inspired by everyone else. But sometimes F21 does go too far and it looks a little too similar and their customers know it too but buy it anyway. For me, i would never be able to afford, let alone buy, a designer item so I'm okay with F21 "copying" designs. But I do understand the other side of the argument as well. Thanks for posting. I am ignorant to anything business-related.

Kristin said...

I think I struggle with it because I really like the sweet deals you can score at Forever 21 but creative infringement is a serious issue. Slippery slope.

Fame Appeal said...

Forever 21 is a cancer to american fashion... they are constant piracy advocated http://fameappeal.com/?p=604

2 Button Mens Suits said...

I like this line of yours and its very true"I don't have a particular interest in buying knockoffs just so I can dress like a celeb or look trendy; it is my belief that people in the know can always tell when it's not the real thing, so why bother trying to pretend? However, if something in Forever 21 happens to be "inspired" and I like it, I'll buy what I like. While I may find something that resembles the "real thing," I just won't seek out blatant copies."