Forever 21’s recent victory in a federal lawsuit brought against it by clothing chain Express could make it more difficult for intellectual property holders to argue that their products have been knocked off.
A federal judge in Los Angeles last month dismissed Express’ claims that Forever 21 infringed on its copyrights to four plaid fabric designs and trade dress rights to a zipper track jacket.
The case, which was being closely watched by the local apparel industry, ended in pretrial summary judgment when U.S. District Court Judge Otis Wright found that Express could not prove that the plaid designs were original enough to be protected. Wright also found that Express could not argue that a track jacket sold by Forever 21 was a copy of a jacket it sold because the jacket couldn’t be easily identified.
John Yates, an intellectual property attorney at Encino law firm Greenberg & Bass LLP who was is not involved in the case, said the judge’s ruling could trip up other intellectual property cases involving fabric copyrights and trade dress claims.
“On the copyright side, the most important thing about the decision is that it really looks at a common method of creating designs,” Yates said. “It calls into question the creativity of the designs. And if they aren’t sufficiently creative, they don’t qualify for copyright protection.”
In terms of the track jacket, he said apparel companies claiming their garments have been copied will now have to prove that the knockoffs were well-recognized pieces of clothing.
Forever 21 Inc., an apparel manufacturer and retailer headquartered in downtown Los Angeles, has long been a frequent target of lawsuits over its trendy, fast-fashion apparel and accessories.
The company’s attorney, Larry Russ, a partner in the Brentwood office of Russ August & Kabat, said the judge’s ruling raises the bar for such litigation over common fabric designs such as plaids and polka dots.
“You should be able to use plaids that have been out there in the public domain and not worry about being sued,” Russ said.
Amy Hughes, a spokeswoman for Express, said the company is in the process of filing an appeal.
Apparel by United Kingdom retailer Superdry was inspired by Japanese pop, and now the company is bringing the distinctive look to Los Angeles in hopes of selling to fashion-conscious twentysomethings.
Superdry opened its first West Coast location in the Beverly Center two weeks ago. Downtown L.A. company Sunrise Brands, led by apparel veteran Gerard Guez, handles U.S. distribution of the trendy merchandise, including men’s and women’s T-shirts, pants and footwear.
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