Trovata, a designer clothing brand based in Newport Beach, was the first to take Forever 21 into the courtroom for “copying” their designs. After a two-year out-of-court legal battle, the case was heard in the U.S. District Court right here in our neighborhood, in Santa Ana.
Below are designs from the Forever 21 and Trovata case. The top row is Forever 21’s and the bottom row is Trovata’s.
The case involved seven garments Forever 21 sold in its stores in 2007, claimed by Trovota to look identical to the designs it featured on the runway and in magazines. Although U.S. copyright laws do not protect a garment’s basic design, legislation is pending in Congress — supported by the Council of Fashion Designers of America — to expand copyright laws to the “the appearance as a whole of an article of apparel, including its ornamentation.” The Design Piracy Prohibition Act, introduced on March 30, 2006 by Representative Robert W. Goodlatte, is still stuck in committee. Critics believe that if passed, the bill would stifle competition and commerce in the apparel industry.
The Trovata case had the potential to clarify intellectual property rights regarding fashion design and the piracy of existing apparel. You see, unlike the prior cases against Forever 21, Trovata wasn’t suing for copyright infringement. Trovata was suing for the similar use of ornamentation: the distinct button patterns, decorative stitching and similar patterns. If Trovata had won the case, the ruling would have had the same effect on the industry as the Design Piracy Prohibition Act.
In court, Forever 21’s lawyer defended this claim:
“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.”
The juror, Stephen Sharp, that stopped Trovata from winning said design elements in Trovata garments weren’t widely known and, therefore, any similar merchandise in Forever 21 stores didn’t confuse the public about the brand.
According to Women’s Wear Daily, the leading fashion newspaper, Jin Sook Chang, Don Won Chang’s wife, who has lived in the U.S. almost 25 years, said she spoke little English and used a Korean interpreter during the trial. Chang stated she didn’t know Forever 21 had profits exceeding $1.7 billion, that she didn’t know the top executives of the company, and that she hadn’t heard of Trovata until the lawsuit.
Despite the mistrial, Trovata is continuing allegations against Forever 21.
If Trovata is to win, then Forever 21 (and other companies using the fast-production business model) would be greatly limited in their ability to copy designs fresh off the runway. The implications of this would be a longer turnover rate, which would decrease the high pressure level placed on the factories to produce high quantities at fast rates, which would decrease the likelihood of sweatshop use.