"Trade Dress" Doesn't Mean Frock Swapping: Using Express V. Forever 21 as a Basic Legal Primer

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As fast fashion becomes a bigger category in the retail industry, there are more -- and more high profile -- lawsuits alleging that someone is copying someone else. Usually the person or company doing the alleging is a big, spendy label who's taking to task another firm for cribbing an original, unmistakable design or print. A few more newsworthy recent cases include DVF suing Target for adapting her frog print, and Burberry dragging TJ Maxx through the legal mud over the use of their beyond-iconic check.

We took a keen interest in the recent case of Express v. Forever 21, in which Forever 21 was sued for allegedly copying a number of men's items. Obviously, Forever 21 is a huge force in the local economy, and the whole case made us realize we had only the foggiest of notions about how copyright in fashion works. We spoke with Nate Meyer, an attorney at Russ August & Kabat, counsel for Forever 21 in that case. He gave us some dirt on the case itself, and explained a few of the basic principles involved in fashion, copyright, and what constitutes originality in the eyes of the law.

The background: The case concerns four pairs of men's plaid shorts and a track jacket, all made by Express. Express alleged that Forever 21 created copies of the plaid shorts that infringed on Express' copyrights. Express also claimed a trade dress infringement when Forever 21 copied their track jacket.

In very general terms, what happened?
Forever 21 won a summary judgment and won all claims, which means that the court ruled that no jury could possibly find against Forever 21.

And how did you prevail on the copyright infringement claims
We proved that the work was not original to Express. The designer admitted that it was not his original work, that he had, in fact, borrowed it from somewhere, and he didn't even know where it came from. The designer said he didn't know where the original material was anymore. So we were able to show that Express' work?wasn't necessarily original, in itself.

What is the concept of trade dress?
Trade dress usually concerns the "secondary meaning" of an article; if a consumer sees it and instantly associates it with a brand or label. The way that a particular plaid says Burberry, or robin's egg blue instantly says Tiffany.

And so how did you show that the track jackets did not have this "secondary meaning" where a consumer would see them and instantly think, 'Express'?
Express did not sell many of those jackets, the jackets were not individually advertised, and they were only sold for a few months. They didn't even have a consumer survey to support the claims that a strong association existed in consumers' minds.
· Designer Von Fursternberg Sues Target Over Dress [Reuters]
· Burberry Sues TJX Over Alleged Counterfeits [WWD]
· Russ August & Kabat [Official Site]