Last week Forever 21 filed a lawsuit against Gucci in the U.S. District Court for the Central District of California. No, you did not read that wrong, Forever 21 is the Plaintiff here.
*Cue The Twilight Zone theme song*
Forever 21 filed the lawsuit in response to three cease and desists letters Gucci sent in December 2016, January 2017, and February 2017. In these letters, Gucci threatened to file a trademark infringement claim against Forever 21 for its sale of garments and accessories bearing blue-red-blue and green-red-green stipes. Forever 21’s declaratory judgement is asking the court to declare that Forever 21 is not infringing on Gucci’s trademark before Gucci even pursues its action.
Anyone who knows of the Gucci brand (which is everyone) is aware of their signature stripe combo. Especially since they have had trademark protection since 1988 for those specific stripe combos. Well Forever 21 is claiming that those trademarks should not be valid because of the many third parties who use the same features on clothing, and because Gucci should not have a monopoly on the stripe combo.
Let’s take a moment to refresh on the basics of trademark law. A trademark is a source indicator, it is a mark that customers see and associate with a particular brand. Trademark owners have the right to prevent others from using the same or similar mark that are likely to cause confusion with the owner’s mark and of course the right to legal remedies for any copycats who come their way. However, it is important to remind ourselves that not everything deserves this type of protection, and many potential marks have been denied trademark protection.
This lawsuit is a very important one given Forever 21’s history of being slammed with lawsuits for their consistent copying of other brand’s designs. Forever 21 is always cast as the villain that swoops in, copies another designer, and reaps all the rewards. However, now it seems Forever 21 wants to tell its own story, because from its point of view it has been bullied by major corporations who have monopolies on basic popular features.
So we will have to wait and see if the court casts Forever 21 as the Robin Hood or the Ebenezer Scrooge.
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