Patent infringement lawsuits are rather unusual in the fashion industry in part because design patents are difficult, expensive, and slow to obtain. In an industry that is constantly evolving to keep up with consumer trends, the year+ length of time from application filing to design patent registration is a lifetime. The latest development gaining momentum in the fashion industry is a niche known as “athleisure.” This trend, as suggested by the term, is defined by clothing designed not only for hardcore workouts or athletic activity, but also to be worn in other low impact settings, such as at the workplace, school, or other casual or social settings. Athleisure apparel caters to those, typically women, who want to be comfortable but still want to be trendy.

This athleisure market feeds a growing multibillion dollar industry which increases the demand on big time players to carve out their stake with continuously innovative items.

But what is considered innovative and novel?

According to lululemon, a Vancouver based athleisure company with a cult following, the standard for creativity is the incorporation of four criss-cross straps on the back of a sports bra which it claims has “acquired secondary meaning through widespread use, sale, and promotion.” Lululemon claims use in the design as early as 2011 and in 2014 lululemon obtained two design patents (U.S. Patent Nos. D709,668 and D759,942) which cover its design (shown below) on the back of its Energy Bra.

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In July, lululemon decided to enforce its right in this design by filing a federal lawsuit claiming infringement of its design patents and trade dress in its Energy Bra. The suit alleges Under Armour is using lululemon’s patented and signature design of criss-crossing straps on several of its sports bras, including the Eclipse, which is likely “to cause confusion, mistake, and deception as to the source” of the sports bras among consumers. When compared side by side, below, it’s apparent that the two sports bras share striking similarities to one another.

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Lululemon states in its complaint that “the design of [Under Armour’s] Infringing Products so resembles the Trade Dress in appearance and overall commercial impression that the Infringing Products are likely to cause confusion, mistake, and deception as to the source or origin of [Under Armour’s] Infringing Products” which it alleges will injure and damage its goodwill and reputation in the marketplace. If this suit does go forward there will be substantial emphasis on whether lululemon’s criss-cross design is truly an original, novel, and non-obvious design.

This is not the first suit of its kind filed by lululemon as the company has not only obtained dozens of design patents but has brought several suits for infringement over those designs in the last several years. lululemon and Calvin Klein, Inc., settled in a dispute in 2012 over yoga pant design patents (U.S. Patent Nos. D645,644; D662,281; and D661,872) relating to a multicolored criss-cross design that served as a waistband, shown below.

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In 2014, lululemon and Hanesbrands Inc., settled a dispute relating to tank tops that were alleged to have infringed another lululemon design patent.

Its clear from the present and past suits that lululemon intends to stake its turf as a leader in the athleisure industry and put others on notice that copying their designs may come at a high price.