Lululemon v. Calvin Klein: Take Notice

Now that things in the fashion law world have settled for a moment, it's time to address a very important and interesting case that is pending: Lululemon Athletica v. Calvin Klein. You may recall that this past August, upscale yoga attire company, Lululemon, filed a patent lawsuit in Delaware district court against PVH Corporation's Calvin Klein brand and G-III Apparel Group. (Side note: this a notably patent plaintiff-friendly district). Lululemon alleges that Calvin Klein copied the waistband featured on its hugely popular and patented hip-hugging yoga pants. While Lulelemon's workout pants retail close to $100 mark, Calvin Klein's strikingly similar version retail for less than half. The patent at issue in this case: a design patent, which protects the "ornamental aspects of an invention;" as opposed to a more common, utility patent, which refers to the function of an invention. The patented aspect of Lululemon's pants: the distinctive waistband that features overlapping panels of fabric. 

Lululemon's Astro pant (left) & Calvin Klein (right)

Why are we so interested in this suit? Because patent lawsuits for fashion designs are quite rare for a few reasons. Primarily, design patent protection is more expensive than copyright and trademark protection. The application process is a far more detailed and time-consuming process, which is largely incompatible with the seasonal turnover in the fashion world. Lastly, the bar that a patent applicant must meet is very high. For a company to patent its products the underlying process or methods of the design must be: 1. Utilitarian in nature (it must be useful); 2. Completely new; and 3. Nonobvious. Because Lululemon produces several new styles of its Astro yoga pant just about every season, a design patent is far more worthwhile than if they were to just make the pants for one or two seasons. The updates as of now: Calvin Klein has pulled both styles of pants that Lululemon referred to in its complaint. While that seems like a small victory, the greater implications will likely be for the fashion industry as a whole, which, as of now, receives very little legal protection. More to come ...