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:
So I think we all realize that disposable-fashion stores like Forever 21 are not able to have such a blindingly fast-changing lineup of stuff (they change out the inventory every few weeks) not because they gave infinite monkeys infinite muslin and are manufacturing the best of the results. Neither is it because they’ve got the world’s best designers locked in a basement somewhere churning out hundreds of new patterns a day.
Nope, they pretty openly watch the catwalks during fashion weeks, then turn around a $30 version of that Rodarte dress in six weeks or fewer, often before the original design has gone into mass production.