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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.

Lululemon brought suit in Delaware, as commentators believed would be more common after the TC Heartland v. Kraft Foods decision came out.  In that case, the Supreme Court reversed a ruling from the Federal Circuit which allowed for patent infringement cases to be brought in any district where the defendant conducts business. The Supreme Court narrowed the relevant patent venue statute, 18 U.S.C  § 1400(b), limiting suit to be brought primarily in the defendant’s state of incorporation. For this reason, Lululemon filed in Delaware, Under Armour’s state of incorporation, rather than having the option to choose a venue with potentially more favorable patent infringement laws, such as the formerly popular Eastern District of Texas.

Lululemon’s suit is also notable due to the past history between Lululemon and Under Armour. In a December 2015 interview with Bloomberg, Lululemon founder and former chairman Chip Wilson admitted that three years prior he was considering buying Under Armour. In May 2017, Wilson released an ad reading “Lululemon Buy Under Armour Now!” and describing Under Armour as “weak.” As Lululemon is commonly recognized as the industry leader in “athleisure”, apparel that serves the double-purpose of functional athletic attire and trendy yet comfortable casual wear, these tensions suggest that Under Armour has an interest in developing its image as a prominent competitor in the athleisure space.