The infamous copycat known as Forever 21 was in the news yet again in 2017, when Puma sued them alleging design patent infringement, trade dress infringement, copyright infringement, and unfair competition.
This may not come as a shock to many since Forever 21 makes the fashion law headlines consistently, and not for many positive reasons. But, the creation of trendy, affordable clothing comes at a cost. For Forever 21, the biggest cost has been the influx of legal actions they have been a party to, where most companies claim Forever 21 copies their products’ style and design.
The products at issue this time are Puma’s “Bow Slide” and “Fur Slide”, which Puma released in a collaboration with Rihanna’s Fenty line. This time, the copycat came out victorious as the judge refused to grant Puma’s requests for an order that would force Forever 21 to stop selling the products (i.e. an injunction).
The judge’s decision left Puma at a loss because if it went forward with the lawsuit, by the time a decision would be given, that style of “copied” footwear would no longer be in Forever 21 stores, while the damage to Puma’s image and bank account would have already been done. The fashion industry waits for no one, and new styles and designs for footwear are constantly changing, making it possible for retailers in fast fashion to continue to copy products and reproduce similar products at an affordable price.
The judge reasoned that Puma’s request was denied because the company was unable to demonstrate that irreparable harm would occur without the injunction being given. Puma offered evidence in the form of statements from one of its directors, including the facts that the Forever 21 shoes “diminish the value for Pumas customers” and “the prestige of the Puma brand.” The court did not buy it, however, since Puma failed to submit any proof of a changing customer perception. Also, Puma needed to present actual, concrete evidence that it was likely to lose customers as a result. Furthermore, even if Puma presented evidence of lost sales, it is not enough to receive a preliminary injunction since this issue could be resolved by awarding money damages.
Brand owners are no longer able to obtain an injunction against the infringer by showing a likelihood that the lawsuit would succeed on the merits against the copycat. Rather, a stronger indication of success is required. This leaves those owners with very little hope of stopping copycats from pouncing in the future. Brand owners have to rely on customer surveys which demonstrate that the copycat’s product tarnished the customers’ perception of the original product. However, due to the expensive nature of conducting surveys, a more viable alternative would be to obtain several statements from customers that explain how the copying product changed their perception. A brand owner must show that its goodwill or reputation within the consumer community has diminished, and, additionally, it cannot rely on a statement from an employee to show a changed perception.
With brand owners such as Puma at a disadvantage, Forever 21 has no real incentive to deviate from its infringing ways. Fast-fashion retailers arguably hold the advantage here because the brand owner bears the burden of proving an irreparable harm, and now that burden faces even more obstacles. Furthermore, a two to three year wait period until trial, makes temporary restraining orders and preliminary injunctions the only real solutions to companies that sue The Notorious F.2.1.