The famous and expensive active ware brand, Lululemon, might be the latest patent troll. The company has engaged in a lawsuit with Target-sold Hanesbrands over design patents of work out tank tops. Lululemon sent a cease-and-desist letter to the company which makes the tank tops under the label Champion. Lululemon claimed the tank tops had similar built-in-bras and a common waistband along the bottom of the shirts. Hanesbrands responded by filing a declaratory judgment suit against Lululemon claiming the tank top design patent is “vague and indefinite,” and the patent is of a common design. Both companies were quick to come to a confidential settlement.
But the real story here isn’t whether Hanesbrands copied Lululemon. This settlement is just the latest in Lululemon’s history; it recently sued Calvin Klein for design patent infringement of yoga pants, and the company has aggressively patented 33 different designs of bras, shorts and sleeve cuffs. In the suit against Calvin Klein, Lululemon claimed the fashion house was infringing on a design patent of a specific waistband on pants, as well as two other design patents. The designs of the pants looked similar with overlapping fabric along the waist, but many people wonder how and why a waistband—a very simple and standard aspect of pants— is patentable?
According to the United States Patent and Trade Office, which has increased patent design grants in recent years, a company can patent a design of any article. The design patent “protects the way an article looks,” and “It must be a definite, preconceived thing, capable of reproduction and not merely the chance result of a method.” Like all other patents, it must not be a commonplace design, but must be novel and new. Although this definition does not answer the question, it has allowed many fashion companies like Lululemon or Louboutin to successfully patent designs and then sue for patent infringement.
Whether the patents are legitimate or not, Lululemon has been a competitive player in the fashion design patent game, which has made commentators wonder if they are the newest patent troll. Patent Trolls are essentially companies that acquire various patents for the sake of suing other companies that may try to use or have similar patents. Trolls are common in the tech world, because there are often many small patents that go into one single product—a phone, Ipad, etc.—and therefore, allowing more opportunity for trolls.
Lululemon doesn’t quite fit into this stereotypical role of patent troll. For instance, they designed their own clothes, and many times trolls will simply buy patents. They also have a legitimate business, whereas many trolls’ main business is to sue other companies, rather than use their patents. However, there are similarities—such as vehement legal actions, potentially over-patenting, and a loss of production in the industry overall.