Forever 21 and Topshop Are Amusing

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:

• Made Her Think jewelry.
• Eco-fashion label Feral Childe (blamed the vendor!)
• Trovata clothing.

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.