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?