Trovata took Forever 21 to court this week in what could result in a landmark ruling over copyright infringement in clothing design. Remember how when the economy tanked, everyone with something to say about it came up with a bizarre metaphor for it? Rep. Tom Feeney said of the government’s takeover of Fannie May, “It’s Little Orphan Annie who’s being taxed to prop up big Daddy Warbucks.” A Times writer hoped Henry Paulson’s actions would “provide enough fiscal laxative to unplug the banking sector and get money flowing again.” The lawyers in the Forever 21/Trovata case share the same creative spirit.
“Much the same as a music composer, [the designer] takes notes, chords, sharps and flats and combines them and arranges them to make original music,” Trovata attorney Frank Colucci said in his opening statement to the jury of six men and two women. “The notes, the chords, the sharps and flats are all known; it is the way they are combined and arranged that make new music.”
Forever 21 didn’t take that one lying down:
“Much like a recipe for something like apple cobbler, Trovata is saying they didn’t invent the apples or the cinnamon or the sugar, but they are claiming the right to the combination,” Brunda told the jury.
In sum, Trovata is trying to convince the court that Forever 21 knowingly used similar design elements, like button placements and patterns, in the alleged knockoffs, which constitutes intellectual property infringement. Forever 21 argues the tops in question do not constitute trademark infringement and are not protected by law. How the case turns out could have a big effect on the degree to which fast fashion chains can copy designer clothes. But metaphors shall always know no bounds.