Lululemon sues Calvin Klein in rare use of design patents in the fashion industry

In the wake of Apple’s $1B win over Samsung with design patents emerging as the stars of the show, observers might expect inventors and IP strategists to pay more attention to that patent category … but they would hardly expect it to surface in the fashion industry.

There is good reason for this. There are only so many ways to make clothing … and in order to qualify for a design patent, the clothing or part of the clothing to be patented must be both novel and nonobvious.

As an American University IP Brief points out, there are some design patents in the fashion industry … Nike and Under Armour are used as examples … but they are not common. Now Lululemon has patented the design of its three-panel waistband for yoga pants (“the design offers greater flex and comfort than normal yoga pants”) and the pants design in total.  What’s more, they are serious about it, as, in a complaint filed in federal court (Delaware) in September, Lululemon has accused Calvin Klein and CK supplier G-III Apparel Group of infringing on these patents.

This is new frontier, and the results of Lululemon’s action may well frame new IP strategies in an industry struggling to carve out greater IP protections.