The jurors in the Trovata vs. Forever 21 case are speaking out and explaining how the case ended in a mistrial. It all came down to one juror who explained why Trovata should not have won the case.
The juror on the panel of six men and two women who blocked a Trovata win spoke with conviction after the mistrial. Stephen Sharp said design elements in Trovata garments weren't widely known and, therefore, any similar merchandise in Forever 21 stores didn't confuse the public about the brand.
"The jury is placed under difficult circumstances to be ad hoc fashion experts and the law is somewhat vague and contradictory," he said. "There is no impartial body analogous to the patent office. All of these things made it a difficult exercise to go through."
The seven other jurors didn't see things Sharp's way, which suggests the public may have sympathy for the small guys. Take juror Michael Marien, who said he'd had his intellectual property pilfered. "I know how it feels when somebody steals your stuff," he added.
This illustrates why trade dress is a difficult allegation to prove. To be considered trade dress, the offending garment must be immediately recognizable as the orignial brand's merchandise. For example, if a hamburger stand put out huge golden arches, McDonald's could shut it down quickly on a trade dress claim, because those famous arches would mislead customers into thinking that the hamburger stand was owned by McDonald's. But most jurors -- and most consumers -- have never even heard of Trovata, so this juror said it didn't rise to the level of a trade dress claim.
Knowing why the jury ruled as they did will help the attorneys from both sides craft their arguments for the next trial.
