Forever 21 branded a copycat. Fair or unfair

  1. It has been a tough year for Forever 21. Over the past year, the down-market fashion merchandiser has been hit by several lawsuits (19 as of September, according to The Trademark Blog).1 The issue is whether Forever 21’s “borrowing” from the lines of fashion designers crosses the line into copyright violation.

    In June 2007, Gwen Stefani filed a complaint in District Court, alleging false designation of origin2, and common law trademark infringement against Forever 21 for allegedly copying her heart design trademark. Stefani alleges that Forever 21 infringed upon her “Harajuku Lovers” design, rendering the two “virtually indistinguishable”. She is seeking injunctive relief and damages from the profits that Forever 21 has earned from the alleged infringement of her design.3

    [​IMG][​IMG][​IMG](a) Stefani purse(b) Harajuku Lovers logo(c) Forever 21 design

    Designer Diane von Furstenberg also sued Forever 21 for copyright infringement, claiming that the retailer copied one of her popular dresses down to the pattern, colors, and cut. Both dresses are silk and made in China. “The difference in prices [$32 versus $325] likely has something to do with the premium put on the designer eye, product development on the part of von Furstenberg, the manufacturing conditions and the quality of the material.”4

    While popular clothing designs have been knocked off and sold on street corners for decades, von Furstenberg’s attorneys claim that “the harm done [here] is probably greater. Consumers are more likely to think they’re buying the real thing at a retail outlet like this one, as opposed to a street corner. When the quality isn’t there, as it ultimately isn’t, the consumers blame the brand.”5 The two parties settled out of court on September 6, 2007 for an undisclosed amount.6


    [​IMG]

    DVF Cerisier Dress vs. Forever 21 Silk Sabrina Dress7

    Anna Sui has not just sued Forever 218, she has fought back, creating t-shirts depicting Forever 21’s founders Don and Jin Chang on “wanted” posters.9 However, this suit is ironic given that she has made a career out of “resuscitating, revamping, and rethinking the vintage fashions of the 1960s and ‘70s, the decades when she was young.”10

    [​IMG]
    Elena Dahl models the "Forever WANTED" T-Shirt
    Mollye Chudacoff11
    High fashion designers are not just fighting back against Forever 21 and other imitator retailers – they have gone to Congress as well. Legislation is currently pending in both the House and the Senate to provide greater copyright protection for fashion designs. In the Senate, a bill sponsored by Charles Schumer (D. New York) would extend copyright protection to cover fashion designs.12 While the current U.S. copyright law protects labels, logos, and distinctive embellishments, this bill would cover the whole “look” of an article of clothing – meaning pattern, color, and cut would now be protected. The House has similar legislation pending (sponsored by Bill Delahunt (D-Mass)).13

    While it is understandable that designers are angry that down-market copycats like Forever 21 appear to be copying their designs, their actions, in the form of lawsuits, are not necessarily in the best long-term interests of the high fashion industry. In contrast to the more stringent intellectual property protection for music, film, or literature, the courts have held that, for fashion, “imitation is the life blood of competition.”14 Imitation is essential to the fashion industry in creating trends – “every season we see fashion firms ‘taking inspiration’ from others’ designs. And every season we see trends catch on and have a moment of wide appeal, only soon to become overexposed and die.”15

    Another problem with copyrighting fashion is that many judges consider clothing to be a “useful article ... useful articles standing alone may never be [copyrighted].”16 However, if a part of clothing can be considered “conceptually separate” from their subsidiary utilitarian function, the “conceptually separate part of the clothing may be copyrighted. For example, an ornamental belt buckle is copyrightable, but the belt itself is not.17

    While some high fashion designers claim that they are losing profits due to imitators like Forever 21, any lost profits are probably more due to economic downturns than down-market competition. The markets for designer merchandise and imitation merchandise are distinct, with very little overlap. Despite von Furstenberg’s claim that her designs had been stolen, the alleged theft is unlikely to have cost her money, as it is unlikely that a woman who can afford to buy von Furstenberg’s original would choose to buy the lower-quality Forever 21 version instead.

    Rather than suing imitators, high fashion designers would be better off ignoring them. Stores like Forever 21 may actually enhance the prestige of and desire for the original high fashion brand. For many women, owning their first Coach or Kate Spade purse is a fashion milestone. Later in life, these same women who bought the down-market imitation of the Diane von Furstenberg “it” dress will buy the real thing, once they have the financial wherewithal to do so.

    By limiting the ability of companies like Forever 21 to imitate runway trends, fashion designers are cutting off an important gateway for women (and some men) to know and begin to covet their brands. As any fashionista knows, there is a world of difference between the imitation and the real thing. Many women will not buy the store-brand version when they can buy the original instead.
    Source the milter blog
     
  2. They did it with the See by Chloe grey babydoll skull top too.
     
  3. See i see both sides. I love Forever 21 for cheap clothes that you cna wear out to a club, maybe work or dinner. I know I am not getting the diane von furstenberg or Anna Sui quality. And designers routinely uses vintage "inspiration" form previous pieces/collections. But then again here at the Purse Forum we hate fake bags so can the same be said for clothes? WHat do you guys think? :s
     
  4. yeah, sometimes friends or people i meet say they are happy for forever 21 because they have such "similar" items to the designers. i laughed when i saw the apple/watch necklaces that so closely resembled mbmj. they can get a little bit too close i think..

    i like that t shirt anna sui made!
     
  5. I see both sides, too. Almost every retailer or brand knocks off something, right? Is Forever 21 taking away business from DVF? I don't know. I think that someone who can afford to buy DVF and really wants DVF is going to go to Saks or Neimans and buy the DVF dress. They are not going to get a knock off. Just like with handbags. Sure you can find inspired bags for a lot cheaper, but we choose to purchase the real thing. Forever 21 is not taking customers away from DVF or Anna Sui, IMO. The DVF dress was almost identical though. But if I were to buy it, it would not be in lieu of purchasing the actual DVF dress. I remember years ago when Banana Republic had bags that were obviously knock offs of Balenciaga bags and the Botkier Trigger bag when it was highly popular. Not many shoppers knew that the bags were inspired by pieces. They liked them, and they bought them. I don't see that as taking business away from Balenciaga or Botkier. It's fashion for everyone!
     
  6. One of the many reasons i can't stand Forever 21. These are BLATENT rip offs, not inspired. There are a never ending amount of possibilities of floral patterns, shapes, and colours that could have been used.. they do NOT have to do this!

    Urban Outfitters does the same thing.. except sometimes i think they're worse because they rip off independent designers instead of big names who have absolutely no chance of getting any $$ out of them.. and who could really use it.

    *sigh*
     
  7. i hate going to places like forever 21 and seeing something that's like exactly the same as something i just bought at bebe for 50 dollars more..
     
  8. I like urban outfitters but Forever21 just bugs me. That Silk Sabrina Dress is a perfect knockoff. If it was easy to to the difference fine but its almost an exact copy which is so not cool. I would be taking it to court to if I was a designer!
     
  9. I don't have a problem with Forever21. Is there stuff knockoffs of other designers? Yes. However, there is nothing new under sun, designers "borrow" from others all the time. Besides I'm under the belief that most people couldn't tell the difference b/w those two dresses.
     
  10. to answer your question, YES OF COURSE it's a copycat!
    I hate seeing an article of clothing that I paid $$$ for and seeing a knock-off at F21! But, on the flip side, they have cute stuff for cheap, I guess. Personally, I've only purchased 2 or 3 tops from there. I tend to prefer quality, but would buy from there again if I saw something cute!
     
  11. I LOVE FOREVER 21!

    But I do see both sides. Although they make fashion more accessible to the everyday Jane like me, there are better ways than making blatant, almost exact copies of designer clothing. Take H&M, Target, and Kohls for example. They've teamed up with high end designers to make affordable lines.

    Anyway, I still love Forever 21 and will most likely continue to buy their clothes at least for "going out" purposes where I would have cried if my $300 DVF dress got spilled on at a bar.
     
  12. They definitely had a bobo version of an anthropologie top I own, and i also see the rip-off Fendi spy's in there...they are blatant, there is nothing subtle about their copying.
     
  13. It's a complicated issue for sure. And I can sympathize to an extent with the positions on either side. Because fashion is so referential and driven by inspiration, it's hard for me to totally agree with the designers suing f21. Especially when many of the designers complaining are ones who utilize cheap labor on the manufacturing end of things in order to further increase their margins of profit. While the quality of materials might be better, I wish I was paying more to ensure that the quality of life of the workers was also better.

    That said, when I see the f21 versions, I almost always call them "rip off _____" inserting the designer's name. So I clearly find it to be a problem.

    I can see both sides of the consumer debate as well. For instance, I would be livid if I had just purchased the full price designer item only to venture into f21 and find it for a fraction of the price. At the same time, I do think the democratization of fashion is a positive thing for consumers. Ultimately, the argument can be made that such infractions have the potential to produce more innovative and creative design elements (that are harder to copy) on the high end of things (which are the aesthetic elements I love and the reason why I do buy some designer stuff when I can afford it).
     
  14. My big issue is that Forever 21 is habitual about it. Sometimes it seems like they don't have any of their own designs.
     
  15. ^ of course not. because that is not what they're company is about, they're not a DESIGNER, they're a company BASED on copying upscale brands. there are MANY companies out there who do this......like ABS by Allen Schwartz...does celebrity and oscar dresses.

    i think that's pretty ridiculous of Anna Sui. people are more likely believe something in F21 is real versus a street vendor? uh, NO. you CLEARLY know F21 is where to go for cheap knowoffs. but people may be cheated by street vendors who say they have the real thing and just got it at awarehouse sale, etc.