WTForever21 is a blog devoted to poking fun at some of the more ridiculous clothing items offered by well-known clothing store Forever 21. While the author, Rachel Kane, admits that most of her closet is comprised of Forever 21’s “tasteful, trendy and totally awesome selection,” the blog focuses on those items that go “horribly awry.” If you’ve ever stepped into a Forever 21, you KNOW what she is talking about. While there are tons of great items for cheap, there are also some pieces that look like they were designed by Dame Edna (take this tired, ruffled, print jumpsuit, or this gem, or these floral, woven harem pants).
Apparently, Forever 21 isn’t big on humor – it sent Ms. Kane a cease and desist letter claiming that, because her website makes use of its federally registered trademark and product photographs, it constitutes trademark infringement, copyright infringement, unfair competition and dilution (these are all concepts Forever 21’s legal team is intimately familiar with since the company has been the subject of multiple suits from others claiming those exact same legal theories). The letter also noted that her website’s title refers to an abbreviation (WTF) that the general public might find offensive (or hilarious – it is a fine line). Unfortunately, my lawyers have advised me that I shouldn’t curse in this blog, so if you don’t know what WTF stands for, you may just have to Google it (and you need to get the F out more often).
From: WTForever21: King Henry the WTF
Maybe I’ve just been watching too many back-to-back episodes of “The Tudors.”
Or maybe this jacket is just effed. Look at the poor girl! She looks like someone has just pissed all over her cornflakes and told her she’s going to be beheaded because she can’t bear sons. Forever 21, Off with Her Jacket!
Forever 21 ordered Kane to take down her website by June 10. Originally Kane was going to comply with the cease and desist letter, but she smartly lawyered up and has not taken down her site. Instead she has taken a stand for bloggers everywhere and has vowed to keepblogging about “fashion atrocities like lime green, faux fur covered vests and candy colored booty shorts.” She sounds like she’s ready to take the fight to Forever 21: “if the company continues to make threats that have no basis in law, my attorneys are prepared to vigorously defend me and seek all available legal redress against Forever 21.” (If you feel passionate about her cause, you can even donate to WTForever21’s legal aid through her website.)
Does Ms. Kane need to be afraid of the big bad national corporation? Forever 21 claims that WTForever21 impedes Forever 21’s business by diluting its trademarks and confusing the consumer into thinking the website is affiliated to the company. Kane has put up a disclaimer on her website stating, “And, just FYI, the term ‘Forever 21’ is a trademark of Forever 21, Inc. This site is not affiliated with Forever 21, Inc.” Forever 21 also claims that she utilizes images from Forever 21’s websites without permission, which infringes on the Company’s copyrights in those images. If Forever 21 were to file a lawsuit and IF it were to win on this copyright claim, it would change the world of blogging forever. Fashion blogs cannot survive without posting pictures from retailers, pictures that they rarely have permission to post. Most blogs use the images to praise the retailer (even Kane has a weekly post about items from Forever 21 that she loves) so they generally turn a blind eye to this practice.
However, these are pretty big IF’s because Forever 21’s copyright infringement claim is not as strong as it would like Ms. Kane to believe. The blogger is protected by a doctrine called Fair Use (considering how much we talk about fair use on this blog, you should be an expert on it by now. There will be a test later). Fair use is essentially a defense to copyright infringement claims. It allows the use of copyrighted material without prior permission from the copyright owner in limited circumstances. Those contexts include commentary, criticism, and news reporting. Kane’s use of Forever 21’s photos would very likely be considered commentary and (hilarious) criticism. As a result, she should be protected by the fair use doctrine and not liable for copyright infringement.
June 10 has come and gone and Forever 21 has not filed a lawsuit against Kane . . . yet. More likely, this letter was an example of what’s known by cool legal types as “SLAPP” (Strategic Lawsuit Against Public Participation) (similar to, but not to be confused with, “slap”). SLAPP refers to a lawsuit or legal threat intended to censor, intimidate, and silence critics by burdening them with the cost of a legal defense until they abandon their criticism or opposition. Typically SLAPP lawsuits target ordinary citizens who cannot afford to pay the hefty legal fees it takes to defend such a lawsuit. The defining characteristic of a SLAPP lawsuit is that the plaintiff usually loses the case. However, a typical SLAPP lawsuit does not get to the trial phase as it is method used to chill the speech of citizens (and get around that pesky First Amendment).
There are specific anti-SLAPP statutes that give certain rights to defendants who may unluckily find themselves on the wrong end of a SLAPP. However, based on Forever21’s alleged claims, it is unlikely that Kane can take advantage of those statutes (a more detailed explanation is best left for another blog). Nevertheless, Kane is holding her ground while bloggers and lawyers anxiously await to see what Forever 21 does next. For now, it appears Forever 21 has made the common mistake of trying to bully someone without the law on its side, leading to more publicity for the exact site with which it had a problem. Who knows, WTForever21 may have a new reader in you who may have never heard of it until this article.
As for me, I can’t seem to help myself from writing about Forever 21 so I’m just anxiously awaiting the arrival of my own cease and desist letter. (If you’re reading this, Forever 21, I swear I love your store! Please don’t sue me! I can’t afford a lawyer).