On September 29, fast fashion retailer Forever 21 filed for Chapter 11 bankruptcy, pursuant to the US bankruptcy code, closing 350 stores worldwide and all of its 44 stores in Canada. The Los Angeles-based chain, having catered to young shoppers looking for inexpensive clothing for decades, has found itself struggling against the rising competition brought by online channels. From a legal perspective, the company is not unfamiliar with the challenges arising from operating in a multi-billion dollar industry. Often labelled as a “fashion copycat,” Forever 21 has found itself in the midst of many noteworthy IP legal battles.
Most recently, American pop-star Ariana Grande sued the company and its beauty brand, Riley Rose, for $10 million USD for using her name, likeness, and music while marketing its products to consumers.[1] The retailer shared images of a young woman wearing Forever 21 products and resembling the likeness of the pop-star across its social media channels and platforms without Grande’s permission. The lawsuit seeks damages for copyright infringement, trademark infringement, false endorsement, and violations to Grande’s right of publicity.
In early 2016, Forever 21 began selling a “Tiger Embroidery Stripe Sweater,” resulting in many Gucci-loyal consumers noting the resemblance to the high-fashion brand’s signature look. The Italian design house maintains a US federal trademark for the specific blue-red-blue and green-red-green stripe combinations, which were found on the Forever 21 embroidered sweater.[2] Upon receiving three cease and desist letters between 2016 and 2017, Forever 21 requested that the courts determine that Gucci does not have a case for trademark infringement. A United States District Judge ruled in favour of Gucci.
Forever 21 has also been accused of attempting to profit off of the substantial goodwill of both a fashion brand and influencer figure in one single lawsuit. In early 2017, the retailer began offering lookalike versions of the footwear found within Rihanna’s Puma Fenty line. Puma sued Forever 21 for design patent, trade dress, and copyright infringement, arguing that the company is attempting to trade on the substantial goodwill of both Puma and Rihanna.[3]
In something of an ironic turn of events, Forever 21 has also found itself at the receiving end of an infringement lawsuit against fast fashion rival and fellow copycat brand, H&M. The Swedish fast fashion giant sued Forever 21 for copyright infringement, trade dress infringement, false designation of origin, and unfair competition with respect to its “Beach Please” tote bag. This matter was settled out of court.
With Forever 21 closing a majority of its North American stores, designers and creators may find some comfort in knowing that a major fashion copycat is now out of business. However, with the rise of online retailers and the continuous operations of various other fast-fashion companies, the battle to protect one’s intellectual property rights still remains a prevalent issue with the fashion industry.
Written by Alessia Monastero, IPilogue editor and articling student at Deeth Williams Wall LLP.
[1] Ariana Grande-Butera v Forever 21, Inc, and Riley Rose LLC, 2:19-cv-07600 (CD Cal).
[2] Forever 21, Inc v Gucci America, Inc, et al, 2:17-cv-04706 (CD Cal).
[3] Puma SE v Forever 21, Inc, 2:17-cv-02523 (CD Cal).
One Response
This blog post caught my attention given the influx of emails I have been receiving from Forever 21 regarding upcoming discounts. Although I had heard about their potential bankruptcy on the news and through friends, nothing has been said via email. In addition to my initial pull towards this post, reading it made me wonder if the infringement lawsuits have contributed to their decision to file for bankruptcy.
Also, high profile cases and clients are mentioned in the examples of Forever 21’s potential infringement, but what about the less famous and up and coming designers?
This motivated me to look into how up and coming designers can actually pursue a claim like the Ariana Grande’s and Gucci’s of the world. The exception in section 64 of the Copyright Act refers to a “design applied to a useful article”1, but what about instances where the article itself is the design? Registering the clothing item under the Industrial Design Act2 might be a designer’s best option in Canada. It “confers the exclusive right for the three-dimensional features of shape and configuration as well as the two- dimensional features such as pattern and ornament, including colour, applied to a finished article”3.
Although a designer’s intellectual property strategy may also include copyright and trademarks, the Industrial Design Act seems to be the missing piece of the puzzle.