It's getting absurd: The Yoga Pants IP War

Subject: It's getting absurd: The Yoga Pants IP War Tue Sep 11, 2012 11:20 pm

The fashion industry's latest hope for protecting its designs may hang on a slimming pair of yoga pants.

It's getting absurd: The Yoga Pants IP War Mkbx131ayogapd201209111

Yoga-apparel maker Lululemon Athletica Inc. is accusing fashion house Calvin Klein Inc. of infringing on design patents for its popular $98 "Astro Pant" in a legal battle that could provide new ammunition for the industry to wield against copycats while bolstering Lululemon's dominant position in high-end yoga apparel.

Lululemon, in a complaint filed in federal court in Delaware last month, claims that Calvin Klein is selling pants that "have infringed and are still infringing" on three patents, including one for a distinctive waistband featuring overlapping panels of fabric. The company was awarded one of the patents last year, and the two others in June.

The nine-page complaint, which also names as a defendant G-III Apparel Group Ltd., a Calvin Klein supplier, offers few other details. But intellectual-property law experts say the suit represents a novel approach at a time when there are few legal protections for designs on apparel.

The fashion industry has historically sought and been granted protection for limited aspects of their products, like trademarks on logos and brand names, which are recognized as their property. For instance, in a trademark dispute between French designers Christian Louboutin SA and Yves Saint Laurent, a unit of PPR SA, a federal court of appeals in New York last week ruled that Louboutin largely owns the exclusive right to use the color red to coat the bottoms of its high-heeled shoes.

But designers haven't had much success in protecting designs on fundamental articles of clothing, ones that might cover, say, the shape of a blouse or the cut of a collar on a shirt.

Generally speaking, copyright law protects forms of art, but not items that are predominantly functional, like shirts and pants. Recent congressional bills that would grant greater copyright protection to clothing designs have failed to advance.

Lululemon is trying to chart a new path by filing and litigating patents secured on the basis of its designs.

Such patents, called design patents, have "for too long been grossly underappreciated" by the fashion industry, said Perry Saidman, a design-law expert and lawyer in Silver Spring, Md.

Fashion designers have only sporadically gone to court over such patents. But slowly, design patents are coming into vogue across a widening number of industries. Apple Inc. made them a key part of its case in its recent legal victory over rival Samsung Electronics Co., in which a jury found that Samsung had copied Apple's designs.

"The time is right for this kind of effort," said Susan Scafidi, the founder of the Fashion Law Institute at Fordham University in New York and an advocate for greater protections for the industry. "These days, it's easier than ever to copy and market even the most innovative designs."

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It's getting absurd: The Yoga Pants IP War

It's getting absurd: The Yoga Pants IP War

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