Forever 21 Plays the Dumb Card In the Final Hour

Forever 21 had been slammed with a lawsuit by the label Trovata. As you can tell from the photo above, there is an uncanny similarity between its t-shirts (top row) and Trovata's (bottom row). Trovata is a smaller design label that has a cult following for its prepster look with an edge.

It has taken Trovata two years to bring this case to court (Federal District Court in Santa Ana, CA). Closing arguments were today.

Forever 21 introduced its potentially infringing articles back in 2007. The trial commenced two months ago and today was closing arguments. This is one of the first cases where a jury will decide whether or not Forever 21 has been illegally pilfering other designers' creative works (designs). What is unique about this particular case is that unlike previous lawsuits against Forever 21, Trovata is arguing its case under trade dress protection versus copyright protection.

There is very little protection for designers' creative works under copyright law in the United States which is why many of them are lobbying for the Proposed Design Piracy Prohibition Act.

Trade dress involves visual appearance of a product or store that creates a link in the consumer's mind to a particular brand (ex: Abercrombie case).

Trovata attorneys are attempting to argue that Trovata's unique placement of various buttons, decorative seamwork, and labels (which Forever 21 has copied) are being infringed upon by Forever 21.

Forever 21 admits that its garments do look similar but argues that Trovata's garments are not unique enough to warrant trade dress protection:

“Trovata is claiming that certain button patterns and stripes on a sweater would cause consumers to associate the garments with its brand, but there is no evidence to suggest that consumers would be confused,” said Bruce Brunda, an attorney for Forever 21. “Forever 21’s products are only sold in Forever 21 stores and are labeled with Forever 21’s brand. The design features on the Trovata designs are rather generic and are not protected by copyrights.”

Forever 21 has a long history of knocking off other designers. It seems that the company's litigation history may help decide the outcome of this case:

In a March 13 order in the case, U.S. District Court Judge Michael Dolinger in Manhattan reprimanded Forever 21 for deceptive conduct during the discovery phase. He added, “We note the extraordinary litigating history of this company, which raises the most serious questions as to whether it is a business that is predicated in large measure on the systematic infringement of competitors’ intellectual property.” Forever 21 is willing to endure these lawsuits and continue to use other designers' work because it is extremely profitable for the company. If you just flip through any fashion magazine, you can see recession inspired pages of "Splurges and Steals" which pair high fashion with uncannily similar Forever 21 products. Consumers want to access high fashion at low price points. Forever 21 caters to those desires.

The cofounder of Forever 21 played dumb while she testified about her company's profits, practices, and its officers: "Asked by Colucci whether she would be 'surprised' if Forever 21’s sales exceeded $1.5 billion annually, Chang responded, 'Yes, it’s surprising. I didn’t know.' She could not identify her officers, she said she had never even heard of Trovata until her company was used by them.

In closing arguments today, both sides rallied hard. Frank Collucci, the attorney for Trovata has a hard case to make from the legal side. While it is easy to see that their designs have been copied by Forever 21, there is no legal protection unless the average consumer can link those particular "looks" in the garments shown above with the label Trovata. Keep in mind that Trovata is a smaller label that is not well known to the average Forever 21 shopper. If the court rules in favor for Trovata, it would mean that large discount fashion chains such as H&M, Uniqlo, Zara and Mango would have to start creating their own creative designs rather than zipping through their copies of Women's Wear Daily.