Forever 21 is notorious for co-opting the intellectual property of others, ranging from the Navajo Nation to German sportswear giant Puma. The fast fashion retailer’s latest victim? The U.S. Army. As noted by an array of sites, Forever 21 is selling an exact replica of the Army’s standard physical training t-shirts. Not only is this a move of questionable judgement (as it seems as though Forever 21 is profiting off the U.S. Army), it very well may amount to trademark infringement.
Ever the sophisticated business entity, the U.S. military holds an array of intellectual property rights, which range from copyright protections for its original camouflage prints to trademark rights in its specific names and logos. As noted by the New York Times a few years ago, “The military services do allow some use of their brands in exchange for a license fee. Since 2009, the Marines have collected $5.4 million in such fees, and [in 2013] their trademark office turned over $700,000 to a morale, welfare and recreation fund.”
“Because we’ve been in two wars in 10 years, we’ve had a lot of patriotism,” said Philip Greene, the Marines’ trademark counsel. Beginning in 2012, the Army, Navy, Air Force and Marines all saw “a big spike in efforts to use military branding to sell goods and services,” military trademark lawyers told the Times, and unsurprisingly, the Pentagon and the various military branches’ legal teams do not take kindly to infringement of such rights.
As of 2014, the Pentagon’s trademark attorneys were sending out cease-and-desist letters to protect their brands from unauthorized uses, and given the Army’s trademark rights, Forever 21 may be next. In addition to an array of federally registered trademarks for its star logo, the Army maintains a trademark for the word “Army” in connection with “Men's, women's, and children's clothing.” (There is, of course, an argument that the trademark is little more than a generic term).
As for whether Forever 21’s use of the “Army” trademark is authorized, it seems unlikely, given the company's history of infringement. Still yet, we must consider whether consumers could be confused as to the source of the Forever 21 “Army” wares (note: the shirt has disappeared from its site, but a dress and men’s t-shirt are still available). This is one of the central inquiries in a trademark infringement case. Due to the extent of the U.S. military’s licensing program, it may not a stretch to assert that a consumer might think that the Forever 21 “Army” tee is somehow affiliated with or endorsed by the U.S. Army.
Chances are, the existing items in Forever 21’s stock that bear the “Army” trademark will disappear very soon. As for whether the U.S. Army will take (or could take) legal action, we will have to wait and see.