Copyright Tag

Lululemon Sues Under Armour For Design Patent Infringement Based on Sport Bra Strap Design

On July 7th, athletic apparel company Lululemon Athletica filed suit against competitor Under Armour, alleging that three models of Under Armour sport bras infringed on design patents held by Lululemon as well as Lululemon’s trade dress.  Specifically, Lululemon asserted that the interwoven strap design on Under Armour’s products closely resembled designs protected by patents Lululemon filed in 2014 and 2016, as well as a design first sold by Lululemon in 2011 as part of its Energy Bra model.

Design patents typically do not offer wide protection for fashion products. While relatively cheap to obtain compared to utility patents, design patents typically still cost several thousand dollars to register.  Furthermore, design patents can only be obtained if an item has been on sale for less than a year and fashion designers often do not want to commit to a registration until and unless a design demonstrates that it will be a core product line going forward.  Trade dress, on the other hand, does not require any formal filing with the United States Patent and Trademark Office (USPTO). However, those seeking trade dress protection must also prove that the design has no functional component, as well as prove that the item conveys a distinctive secondary meaning to consumers that would be jeopardized by the sale of imitations.

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Designers Are Using Social Media to Fight Knockoffs

The fashion industry is inundated with allegations of copyright violations and copied designs, often occurring when a small designer or brand claims that a large retailer or brand copies its designs. Traditionally, disputes over copied designs have been resolved through the legal system. Increasingly, however, social media and in particular Instagram has become a popular medium for small designers to fight back against larger companies that they believe copied their designs. With the support of passionate followers, these designers take to Instagram to spot and shame duplicates quickly, frequently resulting in the alleged offenders ceasing sales of the design in question.

Instagram has emerged as a channel to fight back against duplicate for several reasons. As HBA lawyer and NYU fashion law professor Douglas Hand stated in the recent article Designers Take Copyright Infringement Into Their Own Hands in the Business of Fashion, “copyright protection for designs, even post Star Athletica [v. Varsity Brands], is relatively thin when compared to Europe and other jurisdictions.” Therefore, the U.S. legal system may be an insufficient means for designers to successfully protect their designs. Additionally, smaller brands and up-and-coming designers often have neither the financial resources nor the time to litigate. Litigation is also undesirable because these small brands and designers frequently just want the offending designs removed from market and do not want a prolonged court battle.

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