Lululemon Keeps Taking the Hits: IP and Fashion Woes

Earlier this week, it’s become apparent or rather appearant that Lululemon’s famous $98 yoga pants are see through.  The company points to the use of its special luon fabric that may be the cause of sheerness in the pants and some pants currently on sale now are attached with this disclaimer:

You may experience sheerness with some of our bright-colored bottoms because of the lightweight nature of the fabric. We recommend you do a couple of Down Dogs in your brightly colored bottoms to ensure you’re happy with the fit and coverage.

This recent turn of events has caused Lululemon’s stock to drop 6% this week.  Disappointed customers would now switch allegiances to other fashion fitness brands because for Lululemon’s price point, quality blows of this sort are unacceptable.

Not only that, this isn’t the first woe Lululemon has had to face in recent months.  Last fall, Lululemon settled a patent infringement lawsuit against Calvin Klein for alleged unauthorized design copying of its Astro Pant.  Then earlier this year, the Trademark Trial and Appeals Board denied Lululemon’s trademark application for the wave design featured on some of its jackets.

And now that I have a few months of trademark litigation and prosecution under my belt, I would dare say that the Board’s refusal does border on inconsistency with prior case law.  The Board, in its decision, held that “[Lululemon's] wave design is rather simple and looks like piping, which, unlike the highly stylized marks depicted above, is likely to be perceived by the public merely as ornamental. Accordingly, the overriding commercial impression of this large-size applied-for design is that of ornamentation.”

However, just a few years ago, Levi went to the mat in a trademark infringement case against Abercrombie & Fitch over mere jean pocket stitching, which to the unwary consumer could very well be “merely as ornamental” too.  Although I would agree with the Board that there are small differences in the thickness and tapering between Lululemon’s wave logo and the design on the jacket shown, the differences are so minute that they can hardly be considered in such a case because doing so will make it harder for fashion designers to apply for and obtain trademark rights in their logo marks and trade dress.

Lululemon has taken some hits in these recent months.  Hopefully the rest of 2013 will be different. Until then, I’m set on wearing nothing but Zella to the gym.

 

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consumerism, design patent, lululemon, patent infringement, stocks, trademark

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