Forever Pointlessly Litigious

Maybe we're too tough on whiny, litigious, censorious businesses. After all, we infantilize their customers and employees. We run the justice system so that they can be sued for any damned-fool thing, so that they lose (in terms of ruinous attorney fees) even when they "win" in court.

So maybe businesses aren't entirely wrong to figure this: if everyone else gets to act like children, why should we be expected to act like adults? Why shouldn't we get a piece of this vexatious, tantrum-throwing, consequence-free litigiousness?

That seems to be the view of purveyor-of-clothes-that-appear-ugly-to-me Forever 21.

Forever 21 is thoroughly butthurt over the existence of a blog devoted to humorous comment on its fashion choices, WTForever 21. WTForever 21 mercilessly skewers, and occasionally praises, the Forever 21 fashions that (God above help me) my daughters will be considering before I know it. Forever 21 self-identifies throughout as an independent site not affiliated with Forever 21, and nobody but a drooling idiot could confuse Forever 21 with its amusing (if somewhat earnest) critic site.

But this is America, and someone's butthurt, so someone must threaten to sue.

In this case the emissary of butthurt is an in-house counsel at Forever 21 named Jerry Noh, a 1997 law school grad who really ought to know better. Despite the fecklessly thuggish task facing him, let nobody say Jerry Noh didn't do his best. He gamely claims that WTForever 21 threatens confusion with Forever 21's mark, complains that the "WTF" part threatens to associate Forever 21 with an offensive phrase (ignoring, or perhaps not grasping, how this second argument undercuts the first), and blusters that Forever 21 will be suing for trademark and copyright infringement, dilution, unfair competition, and "other unlawful conduct."

Here's the thing: Noh — and Forever 21 — are full of shit. WTForever 21 is entirely non-commercial and clearly critical and (to some extent) satirical. Non-commercial critical and satirical sites do not infringe copyright or trademark and are protected by the First Amendment. The discussion of why is too long and dreary for this post, but the strong trend is for courts to protect gripesites under First Amendment, fair use, and non-commercial analysis, in large part due to the efforts of various organizations that have stepped up to support gripesite bloggers. As a result cooler heads generally counsel companies against picking fights with gripesites.

When companies have prevailed over critical sites, it's often been through rank thuggery — through wearing down critical sites with the stress, ruinous expense, and inconvenience of censorious litigation. That's Forever 21's credible threat here — not so much that they'll prevail, but that they'll make this blogger's life miserable. It's the threat of a loathsome bully. Good for the blogger, Rachel Kane, for standing up. When people like Rachel Kane stand up to bullies, it makes it a little bit easier for each and every one of us to stand up to bullies. And boo hiss to Jerry Noh and Forever 21 for their thuggery — thuggery which, in typical Streisand Effect fashion, has drawn several orders of magnitude more eyes to WTForever 21 than otherwise would have heard of it.

Mr. Noh, and Forever 21, are in California. I don't know where Ms. Kane is. If Forever 21 sues, I hope that they sue in a jurisdiction like California that has a strong anti-SLAPP statute. Such state statutes — and the proposed federal Citizens Participation Act — serve many purposes: (1) they provide a procedural vehicle for a swift and decisive attack on a censorious suit, (2) they award attorney fees to the prevailing defendant, which both encourages attorneys to take on cases for defendants who might otherwise not be able to afford it and inflicts consequences on censorious plaintiffs.

There are many lawbloggers out here who talk about free speech and decry thuggery like that displayed by Forever 21 and Jerry Noh. Let's put some skin in the game. So, WTForever21 and Rachel Kane, because you've stood up, let me make you this offer: if Forever 21 sues you, I'll do my best to find you a competent lawyer who will take the case in a manner you can afford — either a public interest group, a lawyer willing to take it on the expectation of recovering fees through a successful anti-SLAPP motions, or a lawyer willing to do it pro bono. Who knows? That lawyer might be me. I've had some success with anti-SLAPP motions. I call on my fellow lawbloggers — particularly ones who have expressed interest in First Amendment issues — to make the same pledge. Let's back the people who stand up against the thugs.

Last 5 posts by Ken White


  1. Mick says

    Bravo! Thanks for being willing to step-up and offer this type of help to the little guy.

  2. Vice Magnet says

    Huh, reminds me of versus Somehow I don't think they like each other.

  3. Bruce says

    Being snarky and grumpy isn't really that hard in the modern world.

    Putting your money where your mouth is – that is rare and precious.

    Well played, sir. Well played.

  4. says

    Sometimes the best defense is a good offense. Occasionally you read of someone who gets one of these silly C&D letters, and who interprets it as being truthful as to the likelihood of litigation. Instead of waiting to be sued wherever the bully is, they bring a dec action right where they are, letting the bully travel cross-country.

    While I do not generally practice in that area of law, I have to endorse the practice as having advantages.

  5. says

    True. But often trademark claims are susceptible to 12(b)(6) motions at the same time. And throwing out the pendant state claims takes the wind out of the plaintiff's sails. See, e.g., this.

  6. Base of the Pillar says

    Speaking of declatory judgments, there's an interesting article today about the NYTimes and OpinionLabs going after a patent troll (Lodsys) who has been threatening small app developers with infringement (but never going after, say, Apple or Google). Today, they each filed declatory judgments in California and Illinois respectively, trying to keep this shit out of the cesspool that is The Eastern Texas State of Litigation Fuckwads.

    Seriously, they are on a list of places we need to eradicate. An entire local industry based on litigant friendly patent lawsuits. Unbobdamnedbelievable.