How do fast fashion brands like Forever 21 keep getting away with knockoffs?
Photo: Robert Marquardt/Getty Images
Recently, H&M filed a lawsuit against Forever 21 for copyright infringement.
Even though H&M is known for its high-fashion knockoffs, the retail giant claims that Forever 21 ripped off one of its tote bag designs, which is inscribed with the words “Beach Please” atop sunset-splashed palm trees.
The lawsuit is nothing new to Forever 21, which is similarly known for taking inspiration from existing designs. In fact, the retailer has been sued more than 50 times for allegedly lifting looks, according to a 2011 Jezebel article. It’s not just high-end designers like Diane von Furstenberg and Anna Sui the chain has purportedly copied, either. Forever 21 also looks to smaller, indie designers and sources like Etsy.
The clincher? Forever 21 has never lost a case in court.
ALSO SEE: H&M is accusing Forever 21 of copyright infringement
How does it get away with what appear to be blatant rip-offs, sometimes nearly identical to the originals? It seems that a questionable creative process is just part of Forever 21’s business operations.
Photo: @thefashionlaw/Twitter
“If you look at the history of Forever 21, they’re the bad boy in terms respecting others’ intellectual property rights,” says Ashlee Froese, lawyer and trademark agent at Toronto’s Fogler Rubinoff. “There’s this sort of philosophy that blatant ripping off really is just part of their business plan. It’s a multibillion-dollar company. They’ll make their profits off what they can get away with, and what they can’t, they just buy it out and settle.
“It really one of these cost-benefit analyses: ‘We are going to make a lot of money by selling these things, yes; are we going to have a hard time asserting our own rights to it? Maybe, maybe not, and if we are, we’ll just settle,” she adds.
Indeed, Forever 21 settles disputes out of court, typically with financial compensation to the designer whose work was copied and a confidentiality agreement.
ALSO SEE: Why I stopped shopping at Forever 21
Few designers, especially smaller ones, are willing to speak publicly about the practices of companies like Forever 21, which have deep pockets and powerful in-house legal teams. Of a dozen designers contacted by Yahoo Canada, none was inclined to comment for this article. One, from a Canadian company that had been copied by Forever 21 and settled the dispute out of court, said he couldn’t discuss the incident due to legal reasons.
Photo: Granted Clothing/via Instagram
Earlier this year, B.C.’s Granted Clothing posted a message on its website after some of its designs were allegedly copied by Forever 21, saying that the problem is chronic and industry-wide. “Local brands like us work day in and day out to create and sustain something unique and original only to find our designs taken and used without consent,” the message said. “The pressure to feed this trending ‘fast fashion’ machine is pervasive and people are contracted by these big companies to scour the internet to find original designs without any regard, make a profit and offer no compensation to the original designers. They do not see the negative ripple effect they cause, only looking at short term profits and do not value a sustainable business structure. This tarnishes the original brand and identity which sometimes takes years or decades to create.”
The company and Forever 21 settled out of court.
ALSO SEE: Stella McCartney wants you to spend thousands on her bag, not $100 on a knockoff
Although it’s hard to safeguard their work entirely, designers can take steps to protect themselves, Froese says. Unfortunately in North America, it’s typically a piecemeal approach, with different elements of the design up for protection under intellectual property law.
Last year, Forever 21 came under fire for a bucket bag (right) that was the spitting image of the wildly popular Mansur Gavriel style. (Photos: Mansur Gavriel/Forever 21)
“Bear in mind that the U.S. generally hasn’t been the most progressive country when it comes to protecting fashion design,” Froese says. “In countries like France and Italy, where fashion, couture, has really been really the stronghold of the industry for hundreds of years, you have a consciousness within the legal framework to architect it to protect those designs.
ALSO SEE: Target accused of plagiarizing an Etsy shop owner
“In Canada, you can go through all of the different types of IP and carve out a portfolio that will protect different aspects,” she notes. “There are a lot of loopholes within Canadian copyright law, which makes protecting fashion design quite tricky, but if you’re able to navigate through the various types of IP you’re able to create that portfolio. Get knowledge of the IP protection process and start to incorporate that within the design process.”
As for the H&M versus Forever 21 case, Froese can’t wait to see how it plays out.
“I wouldn’t be shocked if it settled, but if it didn’t, I’d be very interested in reading the documents,” she says. “What we have is two very successful companies…going against each other for exactly the issues they’ve created for everyone else.”
