A mistrial has been declared
in the Trovata vs. Forever 21 case after the jury was unable to come to a verdict. Trovata has already said it will ask for a new trial, which will incur a considerable expense for the up and comping Newport Beach California design label.
Judge James V. Selna dismissed the jury after it failed to come to a decision. The jury had been deliberating since May 21. Trovata attorney Frank Colucci said he will request a new trial.
A conference call is scheduled for June 16 between Judge Selna and the opposing attorneys to determine this case's next steps. "We'll have to start from scratch," Colucci said. Forever 21 attorney Bruce Brunda said the judge's decision gave little cause for celebration. "When you tie in a game, no one is happy," he said.
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To prove their points, lawyers fussed over the case's exhibits, which were racks of clothes produced by Trovata and Forever 21. Some of Forever 21 garments featured faithful copies of Trovata's idiosyncratic clothing labels, which made a reference to Trovata founder Sam Shipley.
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The Forever 21 knockoffs came at a crucial time, according to Colucci. In 2005, the new label had won the CFDA/Vogue Fashion Fund Award. Trovata’s reputation was rising, and its name and styles were frequently featured in fashion periodicals. Style-savvy Target Corp. broached the idea of Trovata designing a diffusion line for the mass-market retailer, according to John Whitledge, Trovata's chief executive. He turned down the offer because he thought it was not the right time for his new label to cut a deal with one of America's largest retailers. In 2007, Whitledge discovered that Forever 21 was selling fashions similar to his own Spring 2006 collection. He believed the alleged copies could damage his label’s chances to work and to collaborate with other large-volume retailers because it might be assumed that his label was doing business with Forever 21.
Forever 21 attorney Brunda told the jury that trade-dress rules do not apply in this case. Trovata is not a household name and mainstream consumers do not associate Trovata's claimed combination of elements with the label, he said. Trade-dress rules have been used for the most well-known businesses and their products, such as the golden arches sign being associated with McDonald’s restaurants or Hermes' Kelly handbag.
Trovata also had no special claim to the horizontal stripes and colors on its Spring 2006 garments, Brunda said. Rather, these elements were common looks and were in the public domain.
From a legal standpoint, the mistrial benefits Forever 21 because Trovata must now begin all over again in its quest to nail the fast fashion retailer under the federal law of trade dress, which is notoriously hard to prove. One problem that Forever 21 may have in the next round is that potential jurors who had never even heard of Trovata before this case might now be familiar with the brand, which would help Trovata's trade dress claims.
