Lululemon Uses Patent Suits to Buoy Business

By Joel Cuttiford

This year, Vancouver-based yogawear maker Lululemon has found itself in a highly competitive market.  It also made 24/7 Wall Street’s list of Canadian companies expected to fold in 2015.  The retailer has recently fought back by taking out patents on its clothing and suing competitors it says infringed on those patents. 

The move is an unusual one, as the fashion industry has never really been known for patent lawsuits.  And yet, an investigation by Buzzfeed has found that the company has taken out 31 patents on its products with the U.S. Patent and Trademark office.  A search of the Canadian Patents Database shows that the company has also taken out two patents in Canada.

One of their Canadian patents is for a tank top with a built-in bra which Lululemon recently filed suit over.  Lululemon insisted that Haneswear had copied its design and sent the company a letter giving the company 15 days to stop marketing and selling what they called a “copycat” product.  The letter also urged the company to issue a joint statement with Lululemon advising customers to shop at Lululemon if they liked that particular product.  If Haneswear failed to comply, Lululemon would apparently launch a lawsuit “possibly in two separate countries.”

Haneswear then countersued, declaring that Lululemon’s patents were vague.  Buzzfeed reports that the two companies settled out of court, and no details of the settlement were made available to the public.

Mark Sunderland of Philadelphia University’s School of Design and Engineering told Buzzfeed that he believes the patent lawsuit craze began when Apple sued Samsung several years ago for design patent infringement involving their smartphones.

That particular high-profile lawsuit got many business leaders interested in the potential of design patents. Shortly thereafter, Lululemon sued Calvin Klein over the supposedly copied design of the yogawear maker’s “Astro” pants.  The company filed a nine-page complaint stating that Calvin Klein was selling pants that "have infringed and are still infringing" on three of its patents.  Much like the Haneswear lawsuit, the Calvin Klein suit was also settled out of court.

Lululemon has taken aggressive measures to patent its products, seemingly not to protect its designs but rather to recoup substantial losses as the retailer faces increasing competition from clothing companies entering the yogawear market.  Since the company has yet to win a patent lawsuit, it is safe to say that design patent litigation is still in the experimental stage.  However, it might be smart for fellow yogawear companies to patent their own products in order to keep scheming companies like Lululemon at bay. 

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