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Friday, May 17, 2013

Fast-fashion retailer Forever 21 has been widely accused of selling knockoffs of other designers’ work and blaming its suppliers for the copying. In a 2011 Bloomberg Businessweek story called “Forever 21’s Fast (and Loose) Fashion Empire,” Susan Berfield wrote:

“Starting in about 2004, the Changs decided to create different brands to appeal to slightly more sophisticated and older shoppers. Over the next couple of years, labels ranging from Diane von Furstenberg to Anna Sui to Anthropologie, about 50 in all, separately sued Forever 21 for copying their clothes. The company said that its buyers had to trust its vendors and couldn’t possibly know how those vendors came up with all their designs.”

Berfield pointed out that WWD had published an excerpt from documents related to the Anthropologie case, in which a U.S. District Court judge wondered whether the company’s business model depended on such behavior:

“‘We note the extraordinary litigating history of this company, which raises the most serious questions as to whether it is a business that is predicated in large measure on the systematic infringement of competitors’ intellectual property,’ Judge Michael H. Dolinger wrote on Mar. 12, 2009.”

Here are a few other links related to Forever 21’s purported knockoffs of small companies:

Considering this legal history, I’m torn between reactions of LOL and SMH over a trademark-infringement lawsuit filed by Forever 21 — which, according to Forbes, posted $2.6 billion in revenue  — against sellers of off-price merchandise.  California Apparel News reports:

“In a federal case filed in U.S. District Court, Forever 21 is trying to recuperate hundreds of thousands of dollars from David’s Place Off Price Clothing Co., Seven Lions, Damo Textile and Y.M.I. Jeanswear for selling merchandise that had been ordered by Forever 21 and then canceled by Forever 21 after the goods were made by apparel factories.”

Forever 21 says it hadn’t authorized the resale of the merchandise and, moreover, that it had found the merchandise still bearing its label in a discount retailer. Forever 21 says that any vendors that resell its canceled orders agree to remove all labels. I’m not sure the defendants are going to have much success using common sense to fight this:

“The defendants claim that Forever 21 does not own any right to the actual canceled goods because they hadn’t paid for them.”

Common sense doesn’t necessarily have a place in the courtroom. Anyway,  Forever 21 wants “$1 million for trademark infringement and no less than $1 million for false designation of origin and unfair competition. In addition, it wants at least $1 million for trademark dilution.”

The Cornell University Law School site defines trademark dilution as:

“The use of a mark or trade name in commerce sufficiently similar to a famous mark that by association it reduces, or is likely to reduce, the public’s perception that the famous mark signifies something unique, singular or particular.”

In plainer language, Forever 21 fears that its brand image will be damaged by its unpaid-for merchandise being seen in discount retailers … kind of how designers feel when knockoffs of their products appear in Forever 21, eh? High!Larious!

Meanwhile, the occasionally reliable New York Post spoke with “a source” who says that pop superstar Rihanna may be filing suit against my dear friends at Topshop for selling a shirt with her image on it without obtaining her permission. Supposedly, the image was purchased from a photographer, but no artist licensing fees were paid. (You can see the shirt in question on the Huffington Post.) It’s also kind of awkward when Rihanna is working with competing high-street retailer River Island. The New York Post says:

“A source exclusively tells us the superstar’s team had tried to negotiate with Topshop owners Arcadia Group for eight months over the rights to her image, ‘but they offered her $5,000 and said they don’t care.'”

The story continues:

“A Topshop source told us: ‘This issue is related to a T-shirt provided to Topshop by a third-party supplier. We are aware it is the subject of litigation…'”

This story has been picked up by other outlets, but so far I haven’t found any official confirmation from Rihanna or Topshop (let me know if you see that). I will speculate that if there is an issue, the media coverage will pressure Topshop to make the shirt go away without money changing hands. That’s how these billion-dollar retailers work.  Just this week, I got a comment questioning the veracity of my Topshop jewelry knockoff experience last year. “Hmmm wouldn’t she own top shop [sic] if this were true,” mused someone who signed herself as Monique. Such naïveté is endearing, isn’t it? As I said in this follow-up post last year, I spent $3,000 on legal fees and got no financial settlement whatsoever for the copy of my swear rings. It was surreal! First I got this tweet (from May 2012) …


Click for my original post.

… then, after I hired a lawyer because the “style in question” was still on sale in stores around the world, I got a lawyer’s letter telling me that Topshop would pull the rings — for real, this time. But I was put on notice that Topshop’s previous acknowledgements of the similarity weren’t acknowledgements of the similarity.


Excerpt from the letter I received.

No money was offered in this letter, and I didn’t want to pay my lawyer to pursue money that I would never get, so not only do I not own Topshop — Rihanna’s not going to own it either, IMHO.

The DCK Concessions mentioned in the letter excerpt is a vendor that sells to Topshop and other retailers. Topshop said it didn’t manufacture the swear-ring copy itself; it merely bought it from a third party to resell, a la Forever 21.  And that’s what commenter Monique fears I’m doing with my jewelry line:

“… you can buy some of ‘her pieces’ at Ali express whole sales for instance the middle finger earring yea I found them in silver for $8. I bet you get them from china wholesale and sell then $70.”

Even though Monique’s writing style resembles that of a troll or spammer, I’m happy she brought up the issue in case anyone else has been wondering. Rest assured, a hundred percent of what you see on my website has been made from scratch to my specifications (excluding standard parts such as chains, clasps, earring backs, etc.) in New York City or, infrequently, in Thailand. The manufacturing locale is identified on the product pages of my site. I haven’t bought finished jewelry to resell since 2006, when I was working with my late business partner. That was her thing: it made more sense financially because it’s less expensive. She was thrifty.  I’m not so thrifty.  After my partner’s death that year, I changed the business model to all original designs.


My middle finger earring in 18K gold. I was very particular about the shape of the thumb. Click to purchase.

Though, really, what’s original? Often it’s not the concept that’s fresh — it’s the execution, as I pointed out in this post on designer Isabel Marant. Marant didn’t invent the wedge sneaker and I didn’t invent the middle finger earring. I’ve previously pointed out that I didn’t invent letter jewelry (all Topshop had to do to avoid stepping on me was use a different font). I didn’t invent heart jewelry or snake jewelry or acorn jewelry. It’s my personal take on the ideas that make my versions special. For instance, my middle finger earring is made with precious metals (your choice of silver or gold) because I love an obscenity rendered in fine materials. My version is also full of awesome because it’s based on Eminem’s hand and Em flips the best bird in the world. His thumb is often positioned away from the other fingers in a distinctive way.  The middle finger earring complements all my other emoji-inspired hand-gesture stud earrings to encourage people to mix and match because I like asymmetry.

You can get a three-pack of white men’s t-shirts from Hanes on sale for $9.99, or you can get a three-pack of Balmain t-shirts from Barneys for $425. There are a lot of choices out there for consumers. The least expensive choices aren’t necessarily the worst … nor are they guaranteed to be the best. And the most expensive choices aren’t necessarily the best … or the worst! You get to decide what fits your budget and taste, and what brands you wish to support. I’m grateful to everyone who supports my brand. If you haven’t made a purchase from me yet and need to ask some questions about my line before you do so, feel free to email me any time at wbjewelry at hotmail dot com.

UPDATED TO ADD: WWD has an update on Rihanna and Topshop. The suit is reportedly going ahead.

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16 Responses to “Forever 21 and Topshop Are Amusing”

  1. Poochie says:

    ModCloth has a habit of buying knockoffs from their vendors. And they say their buyers didn’t know either. It gives me something to do on my blog via my Imitation = Flattery? series.

    It obvious they are liars.. or they need better informed buyers

    • WendyB says:

      It’s nice of them to provide blog content for you! How considerate.

      It’s funny, all these places expect us to believe that their buyers never, ever see any designs outside of what the wholesalers show them. They never read a magazine or surf online, I guess!

      • Poochie says:

        I know! Fashion isn’t my full-time job yet I find these things easily (including today). I especially don’t believe them when I know it’s an “it” shoe of the previous season or an item from a popular brand like Kate Spade.

        Give me a break.

      • WendyB says:

        You need a business card that says Shoe Sleuth!

    • Megan Mae says:

      This is one of the main reasons I have never purchased from Modcloth. They carried legit brands, but then they also carry identical pieces as ‘teen retailers’ and then mark them up extremely high.

  2. What dirtbags — and yes I mean “Monique” as well. Since [as you well know] I’m personal friends with one of your jeweler’s I would love to give her a piece of my mind. Grr this makes me so mad — rip off the “little” guy, then accuse them? Now you can understand why I no longer design. The aggravation of getting ripped off with no chance of compensation was far too much for me to take. Especially when it was a few designs over the course of a few years being ripped off by the same designer. Wendy, thank goodness you have thicker skin than me! XXX

    • WendyB says:

      It’s a crazy business! Plus the F21 thing reminded me of when a huge famous retailer placed an order with me and canceled…I had to eat the costs. Horrible.

      • Ugh sorry that happened to you, it *is* horrible. That along with the payment terms turning from net 30 to net 60 to net 90 to never seeing payment, are other problems with being the “little” guy, that the general public don’t understand and/or don’t know about. XXX
        PS my anti-spam word is “youmad” um yep this pisses me off!

      • WendyB says:

        Oh my God — how about chargebacks? I’m trying to get Stacy to write about that. Because the articles about the disaster in Bangladesh emphasize that the Western retailers were demanding hard deadlines. Well, you have to meet your deadline with the retailer because if you miss it by one day, they can reject the entire order!

      • Oh yes PLEASE Stacy write about chargebacks! Its another totally sucky thing that the “little” guy winds up eating the costs! XXX

  3. Catherine says:

    In the wake of the factory collapse in Bagladesh, this blog post has got me rethinking everything. I’m really concerned now that I’ve learned what a strong hand middle-men have, what lengths companies go to in order to preserve their plausible deniability, and the fact that those tags that say where a product was made are most likely not accurate because many different factories may handle one piece of clothing. Now, reading the details about all this legal wrangling and hypocrisy has me disgusted!! I’m not sure where I’m going with this comment except to say that the confusion I feel, as a consumer attempting to be both intellectual property and human rights conscious, is overwhelming. Thanks for this post. Oh, and Monique? Are you paying attention?

    • WendyB says:

      One of the interesting things is that one might not know if a factory overseas subcontracts to someone else. Even in NYC, I have this one gal who does my wax models. Anytime one comes in that’s totally perfect, I say, “Oh, she had her husband do it!” Because she’s not that good. She’s never admitted to me that she has him do the work, though.

  4. I think you need to design an alphabet letter for DCK Concessions. It seems to be missing one.

  5. stacy says:

    I like what the judge said about Forever 21, I’m sure it’s dead on.
    That commentor was not so much naive as ignorant. Ugh, I wouldn’t even waste a morsel of energy on her!

  6. Meg says:

    its sad that such big companies don’t have any originality and have to rip off other artists ideas!