In Lululemon’s ongoing lawsuit against Costco, Lululemon claims that Costco’s Kirkland Signature branded clothing infringes on Lululemon’s trade dress. The 49-page complaint argues that the Costco products are “confusingly similar” to Lululemon’s own, causing customers to create an “improper association” between the Lululemon clothing and Kirkland’s counterparts.
Lululemon’s Scuba hoodies, Define jackets, and ABC pants are the focus of the lawsuit, with the ABC pants considered the catalyst. Months before the lawsuit was filed, the New York Times’ The Wirecutter published an article comparing Lululemon’s ABC pants with the Kirkland Signature Men’s 5-Pocket Performance Pants. In the article, author Alexander Aciman finds that both pants:
Use the same exact YKK zippers;
Are sewn with 11-12 stiches per inch at seams;
Have thin strip of grosgrain fabric on inside of waistband to support the button attachment;
Sew down the seam running along the inside leg;
And have similarly placed rivets, identical watch pockets, and a shallow zippered back pocket.
Despite the many similarities, Aciman concludes that, with Lululemon’s reinforced waistband and belt loops, better quality materials, and a cleaner finish, the two pants are not entirely identical.
Additionally, Dominick Reuter, author of a Business Insider article discussing the claim, consulted a fashion designer to see where he weighed in on Lululemon’s IP infringement claim. The designer shared that some of the designs Lululemon claims violate trade dress—crotch gussets, curved pockets with rivets, and a rear panel to separate belt loops and pockets—are commonly used by designers, citing jeans fabricated by long-established companies like Wrangler and Levi’s.
But Lululemon’s accusations don’t end with the “knockoff” Kirkland pants—they plan on protecting the flattering seams of their Define Jacket and unique seam details of the Scuba Hoodie as well. Lululemon’s lawsuit relies not only on its registered intellectual property but also on its common law rights, such as unregistered trade dress (the “look and feel” of their clothing).
Although Costco might argue for a Motion to Dismiss for Failure to State a Claim (Federal Rule of Civil Procedure 12(b)(6)), contending that the designs that infringe upon trade dress are functional, the intricacy of Lululemon’s lawsuit seemingly guarantees a potential 12(b)(6) motion would be dismissed. Lululemon included image comparisons of the products in question, proof of registration with the USPTO, and detailed allegations of secondary meaning (evidence of long use, unsolicited media, and celebrity use).
The stakes of this case are high if the two parties do not reach a settlement. If Costco wins, Lululemon’s market dominance will be fractured. If Lululemon wins, Costco might expect many more lawsuits over their Kirkland products. In either case, the outcome of this legal battle could reshape the way IP infringement cases in the apparel industry are handled from here on out.
Contesting Lululemon’s registered IP and design patents will be an uphill battle. With a Lululemon representative having stated, “We take the responsibility of protecting and enforcing our intellectual property rights very seriously,” the fight appears to be far from over.