Posted by Frances Stephenson
Earlier this year international fast-fashion retailer Forever21 decided to issue blogger Rachel Kane with a cease-and-desist letter requiring her to shut down her parody site WTForever21.com. The site contains pictures of Forever21 clothing along with such comments as, 'If you bought this, sort your life out, IMMEDIATELY'.
In its letter Forever21 asserts that the site constitutes 'trade mark infringement, copyright infringement, unfair competition and dilution'. It also takes umbrage at the name of the site, which it says 'refers to an abbreviation for a colloquial expression that the general public may find offensive.'
Forever21's claim, however, has a few issues. In the US, the doctrine of fair use provides a defence to trade mark and copyright infringement actions - and parody and criticism are recognised fair uses. Additionally, there is little likelihood of confusion (we think) between the Forever21 clothing brand and Kane's website. However, the likely difference between the parties' financial positions may mean that the dispute will never reach a courtroom.
The case is not as unique as it might seem. Similar disputes are popping up all over the internet, for example in the ongoing trade mark fight between Facebook and the parody website Lamebook, and in the suit filed by clothing brand 'North Face' against a Missouri teenager for his clothing line 'South Butt'. How might these issues be resolved by an Australian court?
There is no broad fair use defence in Australia (as there is in the US). However, in order for a trade mark to be infringed, the alleged infringer must be using the mark 'as a trade mark'. This is often described as use as a 'badge of origin', to indicate where goods or services have come from. It is likely that Kane's use of Forever21's name would not constitute use as a trade mark, since Kane is not using the name to indicate the trade origin of goods or services. Alternatively, a court might find that 'WTForever21' is not substantially identical or deceptively similar to 'Forever21'. It would be difficult to imagine that a consumer could be deceived or confused by the similarity, or wonder whether Forever21's clothing and Kane's satirical website came from the same source.
Kane may also have a defence against the copyright infringement claim in Australia, on the basis that her use of Forever21's copyright material is a fair dealing for the purpose of criticism or review, or for the purpose of parody or satire.
Whether Forever21's suit against Kane is successful or not, Kane has already emerged the clear winner. WTForever21 now proudly displays links to over 40 articles discussing the dispute, as well as a PayPal account where supporters can donate to Kane's legal defence fund. It seems like Forever21, like Facebook, North Face, and Ryan Giggs, may have forgotten the Streisand Effect: those who try to suppress criticism online find that the internet usually evens the score.
Partner: Paul Kallenbach
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