If the cardigan doesn’t fit, you must acquit
We said that we’d keep you up to date on the Trovata vs. Forever 21 trial (for why this is an interesting trial, we wrote about it in more detail in April), but it seems that jury found it as hard a question as the rest of us. California Apparel News reports:
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.
While the picture above is pretty damning, the question the jury was deliberating wasn’t so straightforward as “Did Forever 21 knock off Trovata’s designs?” Because, look, they clearly did. The problem is, at the moment, that isn’t flat-out illegal, which is why Forever 21 is such a successful company.
Trovata is trying a different tack, suing Forver 21 using an area of copyright law called “trade dress” that nobody in the fashion industry has tried yet, and it’s a stickier situation.
Trade dress is the mistier side of copyright protection. Normal trademark law covers logos and words, trade dress is all about the ‘feel,’ the packaging, the design. If you try to sue someone for trade dress infringement, you have to prove not only that the other guy copied you, but that you have some way of packaging things that people associate only with you (the red, curvy Coke bottle, for example), and the other guy copied you with the intent of having people pick up his red, curvy Croke bottle thinking it was Coke.
Here’s an example of how trade dress has been used in past legal decisions:
In 1991, Merriam-Webster (”M-W”), the market leader in college dictionaries, sued Random House (”RH”) after RH changed the name of its dictionary (from RH College Dictionary) to Random House Webster’s College Dictionary. In addition, RH adopted a trade dress similar to Merriam-Webster’s Ninth New Collegiate Dictionary. Among the similarities between the two competing works were:
1. Bright red dust jackets
2. The use of the generic word “Webster’s” in combination with the descriptive term
3. “College” or “Collegiate” on the cover
4. The name “Webster’s” in large white vertical letters on the spines.
M-W won a $4 million settlement, but Random House appealed and managed to get it overturned. So we imagine it’s gonna be really tough for Trovata to win this case based on trade dress if you can’t even win a case where your rival used your own damn name on their dictionary.
They have some neat snippets from each side’s argument at The Cut (via Women’s Wear Daily, which has been doing some awesome coverage of this but is behind a pay wall):
WWD reports:
“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,” Trovata attorney Frank Colucci said in his opening statement to the jury of six men and two women. “The notes, the chords, the sharps and flats are all known; it is the way they are combined and arranged that make new music.”
Forever 21 didn’t take that one lying down:
“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,” Brunda told the jury.
The question is, when you see a striped cardigan like the one above, do you think “Ooooh, a TROVATA! I can’t believe I found one in this Forever 21!” or do you think, “Hey, nice cardigan!” You can sue over “Trovata cardigan!” You, unfortunately for designers who are getting their designs ripped off, can’t sue over “Nice cardigan!” under current law.
Well, the Design Piracy Protection Act was reintroduced into Congress on April 30, and it may change up the situation. But in the meantime, we’re not feeling particularly good about Trovata’s chances of winning, and we think their chances of holding on to a settlement check if they actually win and Forever 21 appeals are even lower.
California Apparel News: Mistrial in Trovata, Forever 21 Trade Dress Case
MERRIAM-WEBSTER, INC. v. RANDOM HOUSE, INC., appeal docket
California Apparel News: Design Piracy Prohibition Law Reintroduced
via The Cut
Emily G: It is unfortunate that we have people like you in this country, who subtly advertise and promote knockoffs. Why does Forever 21 feel the right to STEAL a designer’s idea and replicate it is in thousands? Isn’t this company ashamed of not hiring a designer to create their own garments?
Your comments are fit for leashes, who live and suck from others, not for decent, hard working people who earn a honest salary.
Hi, MG, thanks for reading. If you’re really invested in this issue, as you seem to be, you should call or write your Congressperson and tell them to support the Design Piracy Protection Act. I certainly don’t have much say in the legal recourse available to designers who have been ripped off by, uh, leashes.
MG: Like you, I too am a true American who is committed to the American ethic of only buying designer clothing. What, like poor people should be able to wear things that look like those worn by people who can shell out hundreds on a label? As if. What are we, communists?
Not only does Forever 21 have problems being kleptomaniacs, they are also big on not paying their workers enough. I saw a film called Hecho En LA (Made in LA) that focused on this problem.
http://cinema.usc.edu/about/news/hecho-en-la.htm
As big as I am on saving a few bucks, it seems that Forever 21 is doing all the wrong things.
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