In a prior post, we discussed Forever 21’s lawsuit against Gucci, seeking to cancel Gucci’s registrations for its Blue-Red-Blue and Green-Red-Green striped marks, and for a declaration that its clothing and accessory products that incorporate similar striping are not infringing.
In response to a dismissal by the court, Forever 21 filed a massive, 145-page amended complaint. The complaint mostly repeats the same allegations, but now also includes over 100 pictured examples of products sold by other brands and retailers, including Nordstrom, Bloomingdale’s, Tory Burch, J.Crew, Louis Vuitton, and Balenciaga.
Forever 21’s argument is that Gucci’s striped designs are not perceived as trademarks, but are merely decorative elements used by numerous brands across a wide range of price points.
While it remains to be seen how strong Forever 21’s proofs are, this argument raises an important point for trademark owners. “Enforce it or lose it” is the takeaway here.
Trademark owners who wish to keep their rights in their marks need to vigilantly police the market and make sure that their marks do not lose their source-identifying power through widespread use.