JURIST Guest Columnist Louise Lau, University of Texas School of Law Class of 2013, analyzes the effects that Lululemon’s design patent lawsuit against Calvin Klein might have on the fashion industry…

In an industry that has traditionally accepted inspiration and appropriation as the status quo, Lululemon Athletica’s lawsuit against Calvin Klein Inc., speaks loudly to the shifting paradigm of the application of intellectual property law to the fashion industry. The high-end yoga and sports apparel maker filed a complaint in the US District Court for the District of Delaware alleging that Calvin Klein’s Performance Pant infringes on Lululemon’s design patent for its Astro Pant. While some argue that greater protections need to be afforded to designers and fashion houses, others believe that intellectual property law should not be strictly applied to fashion, an industry that is inherently fluid and dynamic.

The traditional argument for intellectual property protection is that it encourages innovation because creators are able to control access and use of their works. The existing model of intellectual property law, however, has granted the fashion industry limited protection, mainly through trademarks, which protect logos and brand names but not the designs. Historically, designers have generally been unsuccessful in protecting designs of items of clothing. Recently, though, designers have used design patents to protect unique features of their apparel.

Design patents [PDF] offer protection to the ornamental features of a creation. This presents challenges in the fashion industry because the limited life of certain pieces from season to season rarely warrant a patent. Lawyer Adrian Pruetz notes: “It’s very hard to come up with something that’s new and hasn’t just been part of the clothing vernacular.”

Three of Lululemon’s design patents are currently under contention as they claim that Calvin Klein “ha[s] infringed and are still infringing” on them. One includes a design for a waistband that has diagonal overlapping bands of fabric. Ilse Metchek, the president of the California Fashion Association, says: “This whole notion that you’d grant a patent to anyone who adds a seam or two to a waistband is quite problematic.”

Some experts have argued that the historically loose approach to intellectual property has led to more innovation, not less. Fervent fashion devotees will recall the memorable moment in the feature film The Devil Wears Prada, where assistant Andy is simultaneously dressed-down and educated about the fluidity and dynamism of the fashion industry by Miranda Priestly, editor-in-chief of Vogue. For those unfamiliar with the movie, the gist is that the status quo of the fashion industry operates through a trickle-down effect, wherein high-end fashion houses will set a standard each season, selecting a color, aesthetic or feature to be “in.” Subsequently, this will be recognized and appropriated by a number of mid-level designers, who will then pass on inspiration to other designers. Eventually, this will reach low-end chain stores to be accessible to the masses. Within the fashion industry, the body of work that forms each season’s designs are not wholly independent, but rather, it is an amalgamation of inspiration and evolution stemming from the innovation of only a few designers. Law school professors Kal Raustiala and Christopher Von Sprigman wrote that “copying functions as an important element and perhaps even a necessary predicate to the industry’s swift cycle of innovation.”

As the fashion industry operates against traditional intellectual property theory, relying heavily on inspiration to fuel innovation, it is unclear whether more fashion intellectual property law protections will help or hinder creativity. These protections would certainly benefit some designers; well-established fashion houses could utilize this to create monopolies in the fashion industry. This could stifle future innovation and cloud the market through reduced competition and higher prices. Thus far, Congress and the courts have answered largely in favor of the free market rather than designers, continually refusing to grant trade protection to fashion designs.

In Christian Louboutin v. Yves St. Laurent, the court held that Louboutin mostly owns the exclusive right to color the sole of their shoes red. The lawsuit appears justified, as the red sole is as synonymous with the brand as Ralph Lauren Polo’s pony, Chanel’s CCs or the entwined double G’s of Gucci. However, this becomes hazier on a larger scale. Should a company own the sole right to manufacturing a particular style if they have appropriated a pre-existing item in a certain distinctive manner? If it becomes a trademark for the brand, should the creation be protected? Lululemon did not create yoga pants nor were they the innovators of an overlapping waistband style. By popularizing the style, does it then become theirs?

Calvin Klein removed the pants from their website immediately after the lawsuit was filed, resulting in speculation that there are intentions to settle the suit. Although the lawyers have not yet filed any paperwork, legal experts predict that if this does end up in trial, Calvin Klein will use a number of damaging defenses, including that Lululemon’s patents are invalid and should not have been initially granted.

Now, it is up to Lululemon and their lawyers to set the scene for how future patent design battles will be fought, if at all. In court, the yoga apparel maker will have to prove that Calvin Klein’s products look like the patented Astro Pant. Calvin Klein may rebut this with prior art — evidence that similar products existed in the sports apparel lexicon before Lululemon’s Astro Pant — hence negating the novelty requirement of a patent.

There are doubts that this case will offer any resolution or clarity to the ongoing intellectual property discussion in the fashion industry. Kal Raustiala, a law professor at UCLA, states, “This is not going to be a panacea,” recognizing that design patents are a limited tool, as they only provide protection against close replications. Will the industry continue to be quiescent about the subject, or will the success or failure of this case awaken sleeping giants? However, any outcome to this case will stimulate conversation in the fashion industry regarding the place of intellectual property laws, and how they need to develop in the future.

Louise Lau is a staff editor for the Texas Intellectual Property Law Journal.

Suggested citation: Louise Lau, Downward Dogma: Lululemon v. Calvin Klein, JURIST – Dateline, Nov. 9, 2012, http://jurist.org/dateline/2012/11/louise-lau-intellectual-property.php.