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Can a Blogger Be Sued for Making Fun of Forever 21?

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Forever 21 by Masaaki Komori on Flickr

Photo by Masaaki Komori on Flickr

According to Jezebel.com, clothing retailer Forever 21 is threatening to sue the blogger behind the WTForever21, a site that occasionally pokes fun at some of the store’s offerings.

Forever 21 has sent a cease and desist letter claiming that blogger Rachel Kane is engaging in “trademark infringement, copyright infringement, unfair competition and dilution” through her website, WTForever21.com. Forever 21 says that if Kane doesn’t shut down the site by June 10, the company will sue her.

The letter further takes issue with the name of the website, which it maintains “refers to an abbreviation for colloquial expression that the general public may find offensive, and such colloquial expression is being used in conjunction with our Company’s name, registered trademark, and domain name.”

Would Forever 21 have a solid case against the blogger if it went to court?

Remember that for trademark infringement, the claimant has to show that there is a “likelihood of confusion” with the original trademark; with both trademark and copyright infringement claims, a defendant may also raise a defense of “fair use.”

It seems unlikely that anyone would confuse a website called WTForever21 as being run by the company itself, and parody is a well-protected concept under the First Amendment; accordingly, the company should face an uphill legal battle.

But that certainly doesn’t mean they’ll stop pursuing it. This potential lawsuit is reminiscent of the Lamebook/Facebook controversy that we discussed several months ago here at the blog. While that case seems to be ongoing, we’ll have to wait to see what happens with WTForever21 come June 11; Kane told Jezebel she’ll probably close down the site unless she “can work something out with Forever 21.”

The deep pockets of companies that engage in legal bullying tactics often outweigh an individual’s meritorious defenses. Like it or not, the almighty dollar often trumps the rule of law—and the First Amendment. Some states are looking to change that. Laws like California’s “anti-SLAPP” statute (California Code of Civil Procedure Section 425.16) specifically punish lawsuits illegally attempting to squelch a defendant’s free speech rights while masquerading as defamation, trade libel, or dilution suits.

There are several elements to an anti-SLAPP (“SLAPP” stands for “Strategic Lawsuit Against Public Participation”) motion, and it’s not clear that someone like Kane who is blogging about a matter of limited public interest would clear all the hurdles for an anti-SLAPP motion, but were she to prevail under Section 425.16, she could recover her fees and costs for the motion and have any claim by Forever 21 dismissed…and continue her insightful blogging, to boot.

It bears noting that Kane describes herself as a huge fan of Forever 21’s clothing—her blog is just meant to discuss errors she thinks they make in some of their collections. A cease and desist seems like a strange way to reward such a loyal and interested customer—how about offering her a job instead?

What do you think about Forever 21’s treatment of Kane? Do you think WTForever21’s activities are protected by the First Amendment?

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June 9th, 2011 at 9:32 am