Forever 21, the fashion copycat that always lands on its feet.

Anna Sui Spring 2007 RTW | Forever 21 Maven Top

Fashion undergoes constant change with a regular recycling of trends, from bell bottoms and peasant blouses to shoulder pads and tweeds.  Designers seldom come up with entirely unique pieces; most new items are inspired by predecessors.   Copying each other’s designs and trends is usually nothing more than an IP faux pas but Forever 21, a relatively new clothing retailer, has been creating more waives than usual.  However, despite 50+ lawsuits in the past few years, Forever 21 is successfully forging on.

Fashion design in U.S. receives the least amount of intellectual property protection of all the other artistic industries, unlike music and film and U.S. seems to be lagging well behind other fashion leading countries.  Fashion law seems to be an emerging field as the United States is experiencing a fashion culture growth and many in the industry are looking forward to a change for the better.

Presently, trademark law seems to offer the most protection of fashion design since virtually most clothing items incorporate labels at least on the interior.  Copyright law protects the patterns on fabric; Patent law can play a role in protecting functional aspects of fashion, such as novel purse clasps or zippers.  Other than that, there’s really not much stopping knock-offs of new designs in the U.S.  Council of Fashion Designers of America has been lobbying for more design protection and the pending Design Piracy Prohibition Act aims to protect unique and original designs by giving the designers the ability to copyright the structure of a design with the protection lasting a minimum of three years.

In Europe, fashion designs receive much more protection.  The current French copyright system makes specific provisions for fashion works; this protection traces its origins back to the Copyright Act of 1793, which classified fashion as applied art.  In England, garments are afforded protection against copying as long as the designer can show that her product derives from work susceptible of protection under the Copyright Act of 1956.  If a fashion designer copyrighted drawings or sketches, then those drawings or sketches are protected against copying.

In the United States the concept and design of clothing is left unprotected.  Clothing is often photographed on a runway, emailed to manufacturers overseas for copying and shipped to U.S. retailers months before the designer versions hit the stores.  This practice attributes to the success of the many new lower end fashion retailers such as Forever 21, Wet Seal and H&M but not without pushback from major fashion designers.

In the past two years Forever 21 had been sued at least 33 times for crossing the line between imitating and copying.  Forever 21 operates a chain of 355 retail stores in the U.S. and has undergone rapid expansion in the past few years, opening an estimated 90 new stores each year.  The clothing chain made more than $1 billion in sales from March 2006 to March 2007.

Forever 21 Soho

One of the earlier law suits filed against Forever 21 was in 2006 where they were one of many defendants that eventually settled with Levi Strauss and were dismissed from the lawsuit.  The one remaining defendant was found liable in April 2007 for copying jean pocket stitching trademarked by Levi Strauss.

Less than a week after the Levi Strauss case, Anna Sui filed a complaint against Forever 21 alleging that the “Defendants had copied numerous of Sui’s most recent Sui Designs and that Defendants had made an ongoing practice of such copying from a number of recent collections, since at least late 2005.”    The copied designs ranged from copyrighted fabric prints to embroidery.

Since then other prominent designers such as Diane von Furstenberg, Gwen Stefanie, Anthropologie, Bebe and Trovata filed a string of similar lawsuits, some of which are still pending today.  Most have either settled or decided before proceeding to trial.  The Trovata case was one of the first to proceed to trial.

Trovata v. Forever 21

The Forever 21 shirts are on the top row, Trovata’s are on the bottom.

Photo: Courtesy Photo

Even though the picture above shows identical copying, these types of patterns and structural designs, i.e. the placement of buttons, are not protected by copyright law.   Unlike other lawsuits brought against Forever 21 in recent years, the Trovata suit does not allege copyright violations.   Trovata’s suit focuses on Forever 21’s copying of its unique button placements, decorative stitching, fabric patterns and other details, constituting trade dress infringement.

Trade dress is a legal term of art that generally refers to characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers.   This form of intellectual property protection has previously been used to cover certain fashion designs but is difficult to apply in this case.  To receive trade dress protection the item must be distinctive and non-functional (example, coke bottle – shape is distinctive, but is not the only efficient way to shape a beverage container).

With not much law to lean on, attorneys for both sides commenced a battle of the metaphors.  Trovata’s attorney compared the clothes to music, saying “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.”  Forever 21’s attorney Bruce Brunda chimed back:  “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.”

The case ended without much awaited precedent.  The U.S. District Court judge declared a mistrial on May 27,2009 due to “irreconcilable differences” among the members of the jury.

California Apparel News reported:

A U.S. District Court judge declared a mistrial early on May 27 in the trade dress suit filed by contemporary brand Trovata against fast-fashion retail giant Forever 21 Inc.

Judge James V. Selna dismissed the jury after it failed to come to a decision. The jury had been deliberating since May 21.  Trovata attorney Frank Colucci said he will request a new trial.

Once again Forever 21 gets out relatively unscathed much to the industry’s dismay but more likely than not, this won’t be the last attempt to make Forever 21 play by the rules, coded or otherwise.