Bauble Bobble Estoppel: Why Kane’s Tack Against Forever 21 Worked

Questions
from
Readers

Blog Law Blog reader Amy e-mailed me with a good question about blogger Rachel Kane’s self-declared victory over Forever 21 in a legal dispute that never ended up in court.

Kane is the author of wtforever21.com, a blog devoted to poking fun at Forever 21, the fast-fashion retailer famous for its dogged pursuit of trendiness with a torrent of bangely baubles and shiny swathery.

While they would seem too busy chasing down fashion ephemera to notice a tongue-in-cheek blogger, the folks at Forever 21 eventually looked up from their lamé long enough to dash of a cease-and-desist letter charging Kane with trademark infringement and demanding she take down her blog.

Now, as I pointed out, Forever 21′s legal position was meritless. But they’re a big company, and Rachel Kane is a solo blogger. So it makes for a problem.

What did Kane do about it? Through legal counsel, she wrote to Forever 21 laying out her legal argument for why the company’s claim was baseless and imposing a deadline by which, if she did not hear back from Forever 21, she would assume that she was free to continue blogging.

Thus the question from reader Amy. She writes:

This is a great strategy for bloggers and an awesome victory. However, can’t she still face legal action from the company even though there was no response past her self-imposed deadline?

The answer is that Forever 21 is not absolutely foreclosed from suing Rachel Kane after her self-imposed deadline passes. But by failing to get back to Kane, Forever 21 has evidenced an intent to abandon its claim. That severely compromises F21′s legal position. At this point, if Forever 21 tried to sue, Kane is now in a position to raise the legal defense of “estoppel.”

The idea of estoppel is that if you don’t deal with things at the opportune time, you can’t bring it up later if doing so would end up screwing over someone else. (Courts, in issuing judicial opinions, usually have some slightly higher-brow language than the phrase “screwing over,” but they can’t explain it any better than I did.)

So, through the estoppel defense, a court could rule that Forever 21 lost whatever rights it may have had to sue Kane when it failed to reasonably pursue its claim.

The law generally favors upholding parties expectations when it is possible to do so. Kane can say that, after hearing nothing by silence from Forever 21, she reasonably expected that the dispute was over and that she was free to continue blogging.

Now, key to making this work is that Kane approached this dispute in a reasonable way. She sent a letter explaining why the law did not support Forever 21′s trademark claim, and she gave them a reasonable amount of time to respond. It also counts for something that Forever 21 was the party that brought this up. Since they started the argument by sending a cease-and-desist letter, it’s certainly reasonable to expect that they will respond to Kane’s arguments if they are going to maintain their claim.

There’s nothing magical about estoppel – it’s all based on reasonableness. So don’t get carried away thinking you can get the drop on someone with estoppel. If you’re being tricky, then a court won’t look favorably your estoppel defense. But if someone sends you a legal threat, Kane’s way of dealing with it is a good one. Send a letter patiently explaining why the threat is baseless, and set a reasonable deadline for their response. It can be a good way to put spurious claims behind you.

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