September 15, 2014

Lululemon a Warrior in Protecting its Intellectual Property

Lululemon takes no savasanas when it comes to protecting its intellectual property. If you've been following my blog posts, you probably know that I'm a yoga addict. I love wearing Lululemon apparel (and also Zweet Sport apparel!) both on and off the mat. In fact, I'm sitting writing this post in my WUNDER UNDER leggings and SCUBA hoodie. Therefore, when yoga and intellectual property intersect, I just have to report it to you.

Lululemon has recently been deemed "the fashion industry's biggest patent troll" and has been aggressively protecting its product line with design patents, which cover the ornamental design of a product having practical utility. Lululemon currently has a portfolio of thirty-one patents, most of which are design patents. The yoga brand is blazing a new trail in the fashion industry by aggressively litigating these design patents. For instance, in 2012, Lululemon filed a complaint in federal court in Delaware, alleging that Calvin Klein sold yoga pants that infringed three of Lululemon's patents, including one for a waistband that contains overlapping bands of fabric. Here's what the pant, sold by Lululemon as the ASTRO pant, looks like:


What does this have to do with trademarks, you ask? Well, typically fashion designers, like Lululemon, have relied on trademarks to protect their intellectual property, since United States intellectual property laws currently don't provide protection for fashion design per se. Fashion designers have had extreme difficulty in protecting designs on fundamental articles of clothing, such as the shape of a jacket or the cut of pants. This is because copyright law protects forms of art, but not functional items such as jackets and pants. Though there has been a push to change this over the past few years, congressional bills seeking to grant broader copyright protection to clothing designs have not been passed.

As a result, designers have obtained protection for their names, logos, and even a color. You might remember the lawsuit between Yves Saint Laurent and Louboutin over Louboutin's trademarked red sole. Lululemon has stretched even deeper and claims trademark rights in the names of many of its products, such as WUNDER UNDER and GROOVE for pants, SCUBA for hoodies, and TA TA TAMER and BOOBY BRACER for sports bras. Lululemon has even sought trademark protection for certain types of fabrics including the LUXTREME, LUON, SILVERESCENT and LUXCHANGE.


To date, Lululemon has filed sixty-nine trademark applications with the USPTO and currently has thirty live registrations. In addition to taking advantage of trademark protection, as noted, Lululemon has become a warrior in the patent realm with a portfolio of thirty-one patents. Most recently, Lululemon filed suit in the Northern District of Illinois to fight counterfeiting. More to come on that. Lululemon is certainly one to watch on protecting intellectual property. Not only has it been creative with its clothing and mat designs, it has also proven to be creative with its enforcement strategies and its branding.

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