WTForever21 Blogger Calls Forever21’s Bluff

July 2011

Forever 21 threatens lawsuit against WTForever21.com

Rachel Kane, the 26 year-old writer behind WTForever21.com, chronicles fashion misshaps by Forever 21. One year into writing her blog, Kane received a letter from Forever 21 demanding she remove her site or face a lawsuit.

WTForever21 blogger sued over her opinionThe cease and desist letter accuses Kane of copyright infringement, trademark infringement, unfair competition, and dilution. Forever 21 accuses Kane of damaging its reputation by associating the internet colloquialism of “WTF” with their company.

Forever 21 threatened gave Kane a June 10 deadline to take down her blog. Kane reached out to many media outlets to share her story. And, oh yea, armed herself with a set of amazing fashion lawyers: Charles Colman and Scott Burroughs.

After sending Forever 21 a reply that included a June 10th deadline to respond, Kane did not hear back from the retailer. Today, Kane’s blog lives on only now with more notoriety.

Fashion lawyers can help Kane avoid this “slapp”

A SLAPP is basically a threat used to silence an underdog. SLAPP stands for strategic lawsuit against public participation.

This tactic is used when the recipient of a lawsuit threat is unlikely to be able to afford a fight  against the big dog. Forever 21 likely assumed that it would scare Kane into taking down her blog. Instead Kane has representation.

Forever 21 is acting salty. They have every right to protect their brand but it’s IP is not actually threatened here.

Kane’s blog posts make fun of Forever 21’s items, the descriptions of those items, and the practicality of the fashion. The criticism is funny. But most importantly, it is just that: a criticism. Some posts sarcastically pretend to enjoy some absurd items, like a parody of fashion blogs. Clearly done in good fun. But even importantly, the blog’s writing is protected. And the images used should fall under fair use.

Rachel Kane’s blog does not infringe Forever 21’s IP

To be found guilty of trademark infringement, Forever 21 would have to show that there is a “likelihood of confusion” with the original trademark. Kane’s blog is a great expression of her right to freedom of speech. Her blog is clearly a parody and full of much criticism and commentary on Forever 21 products. Thus, Kane would be successful using a fair use defense to any copyright or trademark infringement claimed by Forever 21.

This lawsuit is reminiscent of the Lamebook/Facebook legal battle, which ended with Lamebook only adding a disclaimer stating the site has no affiliation to Facebook. If you check WTForever21.com, Kane added a similar disclaimer:

“FYI, The term ‘Forever 21’ is a trademark of Forever 21, Inc. This site is not affiliated with Forever 21, Inc.”

What Kane’s experience means for bloggers

Personal blogging may not seem like a regulated industry, but it is. And many bloggers are guilty of copyright infringement.

WTForever21’s fashion law fight should not deter bloggers from making fair uses of someone else’s intellectual property. The tricky part is that this issue is not black and white. Courts make subjective decisions considering a variety of factors.

Courts commonly consider four factors in resolving fair use disputes: (1) the purpose and character of the use; (2) the nature of the copyrighted work; (3) the amount and substantiality of the portion taken; and (4) the effect of the use on the potential market.

If you are not sure whether your use is legal, you should consult an attorney.

How bloggers can legally protect themselves

Copyright law – Content creators should consider copyright whenever they copy and paste someone else’s material.

Plagiarism is straight up wrong. But even giving “photo credit” to the owner of an image may not be enough. Copyright infringement occurs when a copyrighted work is copied, distributed, performed, publicly displayed, or made into a derivative work without permission.

Thus, using a photo of a celebrity in a beautiful outfit can get you into legal trouble.

Right of publicity – Content creators should consider the right of publicity when using the images of others.

The right of publicity prevents use of someone’s image or likeness when the image is promoting a product or service, or when the person’s image or likeness is being traded for financial gain.

A fair use right may be claimed if the image is being used to support primary goals of news reporting (e.g., paparazzi photos of celebrities). Parody and educational purposes can be allowed as well.

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WTForever21 blogger sued over her opinion

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