On August 13, 2012, lululemon athletica canada inc. (“lululemon”) filed an action before the U.S. District Court for the District of Delaware against Calvin Klein, Inc. (“Calvin Klein”) and G-III Apparel Group, Ltd. (“G-III”) for direct and indirect willful infringement of lululemon’s design patents for certain yoga pants.

Founded in 1998 in Vancouver, British Colombia, lululemon is an international retailer of technical athletic apparel for yoga, running, dancing, and other activities. Along with a variety of products, lululemon sells a yoga pant under the brand name Astro Pant™. The pant includes a number of features such as “luon, four-way stretch and moisture wicking, [and a] gusset designed for greater range of movement and comfort.” The company owns three US. design patents covering the features embodied in the Astro Pant™.

Calvin Klein is a leading international fashion designer of women’s and men’s apparel including sportswear and performance apparel. As set forth in the complaint, Calvin Klein has sold “performance knee length running tights” and “performance compression overlapping waistband pants” (the “Accused Pants”) that embody lululemon’s patents. Upon learning of the Accused Pants, lululemon sent a letter to Calvin Klein and G-III, the manufacturer and supplier of the Accused Pants, providing written notice of infringement. Unable to resolve the dispute, lululemon filed the instant action.

Lululemon has asked the court to find that Calvin Klein’s and G-III’s sale of the Accused Pants, which incorporate substantially the same design elements as those in lululemon’s patents, constitutes direct and indirect patent infringement. Due to the defendants’ knowledge of the company’s patent rights, lululemon argues that this infringement was willful. Lululemon has requested injunctive relief as well as damages.

This case highlights the difficulties associated with protecting fashion designs and the tendency of companies to imitate trends and successful products. Although designers can obtain limited protection for portions of their designs through trademark, trade dress, and design patent law, there currently is no regulatory scheme for fashion designs. Accordingly, designers are required to develop novel ways to enforce and protect designs that they believe are proprietary. Arent Fox is continuing to monitor this case and other cases involving the intellectual property protection of fashion designs.