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Gucci Escalates Legal Battle with Forever 21

Gucci has filed a lawsuit against Forever 21 for allegedly knocking off its trademark “blue-red-blue” and “green-red-green” stripe webbing as it escalates its battle with the American fast fashion chain known for taking inspiration from designer brands.

The contents of the filing include a motion to dismiss Forever 21’s earlier complaint against a threat of trademark litigation from Gucci and counterclaims of its own for trademark infringement, trademark dilution and unfair competition.

"Gucci America brings these counterclaims because Forever 21 has challenged its most valuable and widely known marks," according to a copy of the filing seen by BoF. "And further because Forever 21’s legal assault, like its business model, is built on undermining the very notion of trademark protection, which is of critical importance to Gucci America’s brand."

The complaint was made in the United States District Court, Central District of California, at 6am local time.

The lawsuit is the latest move by Gucci to defend its trademarks after Forever 21 hit back against a wave of cease-and-desist letters the luxury brand sent the retailer over of its use of the stripe webbing on several items. The pieces include a silver bomber jacket, a floral bomber jacket, a butterfly jumper, a green tiger motif jumper and a choker, all lookalike designs with striped webbing. The items are not currently listed on the Forever 21 website. Forever 21 filed its case in the US District Court in California in June, seeking protection against a threat of trademark litigation.

In its complaint, the fast fashion giant said Gucci “should not be allowed to claim that Gucci, alone, has a monopoly on all blue-red-blue and green-red-green striped clothing and accessory items… Any use of stripes or color bands on clothing sold by Forever 21 is ornamental, decorative and aesthetically functional.”

In response to today's action, Forever 21 said through its lawyers Sheppard Mullin Richter & Hampton LLP: “Forever 21 brought its lawsuit because it believes that its position has merit. It is not our policy to comment on pending litigation and Forever 21 looks forward to presenting its case to the court."

While Forever 21 may argue it is not infringing Gucci’s trademarks, it may be no coincidence that several fast fashion players appear to have turned to Gucci for design inspiration at a time when the luxury label has become one of the most influential and successful brands in fashion. Sales climbed 43.4 percent in the first half of 2017, a stellar performance for parent company Kering.

To prove trademark infringement, Gucci must show there is a high degree of possibility that a consumer seeing Forever 21’s items with the striped webbing in question could be deceived into believing they may be Gucci products. Gucci may be able to meet this threshold if it can prove consumers could mistakenly believe these products are part of a collaboration with Forever 21.

“The Gucci stripes have been registered in many product categories for long enough to achieve incontestable status,” says Susan Scafidi, founder and director of the Fashion Law Institute at Fordham Law School. “Forever 21 may not even expect to win. Instead, the fast fashion chain may wish to signal to other brands that sending cease-and-desist letters may prove more expensive than anticipated.” Forever 21’s complaint appears to have a second goal as well, she adds: “to cast the fast-fashion company publicly as a victim rather than a design pirate or a parasite.”

Forever 21 has long faced the wrath of other brands alleging its products are copycats of their designs. This year, Puma, also owned by Gucci parent Kering, filed a lawsuit claiming the retailer had copied three of the shoe designs from the company’s Fenty Puma by Rihanna collection. Also this year, Mara Hoffman, the swimwear brand, also filed a lawsuit against Forever 21 for infringing copyright of her "Leaf" print in its swimwear. A case filed by Adidas against Forever 21 over the alleged use of the sportswear giant’s three-stripe trademark on footwear and clothing is also currently making its way through the courts. Anthropologie, Anna Sui and Diane Von Furstenberg have all have sued Forever 21 over trademark and copyright infringement in the past.

Designer labels often argue that copies not only hurt sales, but dilute brand equity through association with lower quality product. This is especially important for luxury brands, which often trade on their values and wider cultural meaning as much as their products.

But while knockoffs undoubtedly damage brands, some argue that copycats, instead of damaging sales, actually help to drive the luxury industry, creating demand for next season’s items amongst more discerning consumers when previously released designs are adopted by the masses. Over a decade ago, law professors Kal Raustiala and Christopher Sprigman wrote about “the piracy paradox” arguing that copying by mass-market chains helped to drive the kind of “induced obsolescence” that moves the fashion market forward.

But trademarks like Gucci’s striped webbing — a signifier of the brand, its quality and design — are another matter and with its recent legal action, Gucci is clearly signalling it will defend them. Gucci’s first use of “blue-red-blue” and “green-red-green” stripe webbing in the US was in 1963 on products including bridles, walking sticks and necktie cases. US trademark registrations for the striped webbing were issued in 1979 and 1988, respectively.

If Forever 21 does win the case, designer brands may have to re-evaluate the use of trademark protection and even whether there is unrecognised risk in sending cease-and-desist letters. Forever 21’s pre-emptive strike, taking Gucci to court first, may signal that the fast fashion company may no longer treat financial settlements, the common outcome of these kinds of cases, as a cost of doing business in alleged knockoffs, Scafidi says.

Ironically, Gucci’s complaint comes as references to counterfeit culture have become a high fashion trend. Indeed, Gucci creative director Alessandro Michele has made ironic references to counterfeit and copycat culture with in his own designs, notably with “Guccy,” “Guccification” and “Guccify Yourself” logo t-shirts. The designer also caused consternation after a puff-sleeved bomber jacket presented at the Gucci’s last cruise show liberally referenced a bootleg Louis Vuitton coat designed by the Harlem tailor Dapper Dan. Michele later claimed the piece was an homage.

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