Vancouver-based athleisure apparel brand Lululemon is suing Costco over multiple claims that the big-box wholesale retailer is selling knock-off or “dupe” versions of its yoga pants, tops and more.
Lululemon filed a lawsuit in the state of California on June 27 alleging that Costco has been infringing on its intellectual property rights, patents and trademark laws, which protect ownership of its apparel and others designs.
This means it is illegal for any other company to design, manufacture, import, distribute or sell products that infringe upon those protections.
“As an innovation-led company that invests significantly in the research, development, and design of our products, we take the responsibility of protecting and enforcing our intellectual property rights very seriously and pursue the appropriate legal action when necessary,” Lululemon said in an emailed response to Global News.
Both big-name brands are ones many Canadians and consumers across North America know. So what exactly do we know about the lawsuit, and what is being alleged?
What does the lawsuit allege?
Lululemon filed the lawsuit in the central district of California, listing both its Canadian and U.S. companies as plaintiffs.
Lululemon’s claims focus on what it argues are “dupes” of its patented apparel lines by Costco.
Those Lululemon products include the SCUBA hoodies and sweatshirts, Define jackets, and ABC pants. In addition, Lululemon alleges that Costco and some of its subsidiary brands have been using trademarked marketing terms and other brands to describe colours and styles.
The company claims Costco has been selling these alleged “dupes” under its own Kirkland brand and others in what Lululemon calls an attempt “to confuse consumers at the point-of-sale and/or observers post-sale into believing that the ‘dupes’ are Plaintiffs’ authentic products when they are not.”
In the filing, Lululemon cited two separate articles published by The New York Times and The Washington Post, which outline what the authors described as similarities between the apparel items.
Many consumers have commented on social media and online websites about what they describe as the similarities and quality or value of the products, including on websites like “Lululemon Dupes”
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One of the products Lululemon sells are signature pants known as the “ABC Pant,” which the lawsuit highlights compared to Costco’s Kirkland branded pants.
What counts as copying vs. competing?
Although companies are able to legally compete with Lululemon and other companies with protected material by offering products which may seem somewhat similar, the lawsuit distinguishes between this activity and “duping” those products.
Some examples of specific garments in the filing from competitors to Lululemon include those from H&M, Aeropostale, Outerknown and Tommy Hilfiger, which it says have similar products that do not infringe upon the laws and protections it accuses Costco of violating.
“Lululemon files this action as part of its intellectual property enforcement efforts directed to retailers who have chosen to copy rather than compete,” the lawsuit outlines.
“Costco has unlawfully traded upon Plaintiffs’ (Lululemon’s) reputation, goodwill and sweat equity by selling unauthorized and unlicensed apparel.”
The lawsuit also features several examples of garments Costco sells, which Lululemon argues are infringements not only on its specific designs, but trademarked colour names like “TIDEWATER TEAL,” which the company alleges Costco used to market its own versions.
“The TIDEWATER TEAL™ mark is an important component of lululemon’s business and recognized as symbolizing lululemon’s high quality products,” the lawsuit says.
Another section of the lawsuit features a screenshot from the Costco website appearing to show a men’s full-zip sweatshirt called “Hi-Tec Men’s Scuba Full-Zip,” and Lululemon states that its own “SCUBA” line of apparel is protected under U.S. Patent and Trademark law.
A jacket with the “Spyder” label that Costco sells under its Kirkland banner, which Lululemon alleges the design is “An exemplar of which…(embodies) Plaintiffs’ DEFINE Trade Dress:”
A request from Global News to Costco Canada has yet to receive a response, including whether this may impact business operations outside of the U.S.
It has yet to file a response to Lululemon’s lawsuit.
In the meantime, most of the items from Costco referenced in the lawsuit appear to have been removed from Costco’s website or are no longer available.
–with files from The Canadian Press.
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