Lululemon is suing Costco, accusing the wholesale club giant of copying several of its signature designs and offering them at a lower price under its Kirkland Signature brand.
In a lawsuit filed Friday, in the U.S. District Court for the Central District of California, Lululemon said that "given the success" of its products, "some companies have replicated or copied Plaintiffs' proprietary apparel designs to create what are colloquially known in the fashion world as 'knockoffs' or 'dupes.' "
The apparel company claims that Costco's "knockoff" designs, or product "dupes," violate trademark law because "some customers incorrectly believe these infringing products are authentic Lululemon apparel." In other cases, "customers specifically purchase the infringing products because they are difficult to distinguish from authentic Lululemon products,"
"The Infringing Products create an improper association with Plaintiffs' authentic products," the complaint continued, citing the example of the hashtag "LululemonDupes" on social media, which helps users find reviews and sources of similar products at a lower price.
The lawsuit also accuses Costco of illegally trading on Lululemon's "reputation, goodwill and sweat equity by selling unauthorized and unlicensed apparel" based on the athleisure brand's design patents.
"The Infringing Products create an improper association with Plaintiffs' authentic products," the complaint continued, citing the example of the hashtag "LululemonDupes" on social media, which helps users find reviews and sources of similar products at a lower price.
The lawsuit also accuses Costco of illegally trading on Lululemon's "reputation, goodwill and sweat equity by selling unauthorized and unlicensed apparel" based on the athleisure brand's design patents.
Items that Lululemon alleges that Costco copies
The items at the center of the lawsuit include Lululemon's popular "Scuba" hoodies and sweatshirts, its "Define" jackets, and "ABC" stretch pants — that resemble khakis pants — for men.
Lululemon's Scuba hoodie retails for $118, while its Define jacket sells for $128. The ABC pants cost $128. According to Lululemon, Costco's infringing products include: Danskin Ladies Half-Zip Hoodie
- Danskin Half-Zip Pullover
- Jockey Ladies Yoga Jacket
- Spyder Women's Yoga Jacket
- Hi-Tec Men's Scuba Full Zip
- Kirkland 5 Pocket Performance Pant
In a statement Lululemon said: "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."
Costco did not immediately respond to a request for comment.
Lululemon was founded in Vancouver, British Columbia, in 1998 and has emerged as a leading retailer in the fashionable athletic space. With single items regularly ringing in at more than $100, the brand is heavily associated with the athleisure style of workout gear. Its revenues topped $10 billion last year.
Costco, a membership only retailer, has developed a loyal following for its private label Kirkland Signature brand, which makes competing products of name-brand products, usually at a far lower price to customers. Costco's revenue totaled $254.5 billion in fiscal 2024.
Costco did not immediately respond to a request for comment.
Lululemon was founded in Vancouver, British Columbia, in 1998 and has emerged as a leading retailer in the fashionable athletic space. With single items regularly ringing in at more than $100, the brand is heavily associated with the athleisure style of workout gear. Its revenues topped $10 billion last year.
Costco, a membership only retailer, has developed a loyal following for its private label Kirkland Signature brand, which makes competing products of name-brand products, usually at a far lower price to customers. Costco's revenue totaled $254.5 billion in fiscal 2024.
Lululemon is seeking damages in the form of lost profits, and for Costco to cease the manufacturing and distribution of products Lululemon claims violate trade dress.
Case Info
U.S. District Court, Central District
First Street U.S. Courthouse350 W. 1st Street, Courtroom 6B,
6th Floor, Los Angeles, California 90012
Case Number: 2:25-cv-05864Judge Fernando L. Aenlle-Rocha
The Law
The Lanham Act (15 U.S.C. § 1051 et seq.)The Lanham Act is the primary federal law governing trademarks in the United States, enacted in 1946. It establishes a national system for trademark registration and provides legal remedies for trademark infringement, dilution, and false advertising.
Intellectual Property Protecting Plaintiffs’ ABC Pants, etc.
Patentee brought action against competitor, alleging competitor's products infringed on several of its patents. Competitor moved for summary judgment. The court found that Cabela's neck protector was similar to an older design (prior art) that existed before Seirus's patent, making it distinct from Seirus's patented design, thus avoiding infringement.
Seirus alleged that Cabela's was infringing on their design patent, according to docket information related to the case) for a neck protector.
Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 120 S. Ct. 1339, 1340, 146 L. Ed. 2d 182 (2000)
In conclusion, the Wal-Mart Stores v. Samara Brothers, Inc. decision established that product design requires a showing of secondary meaning to be protected as trade dress, unlike product packaging, which can be inherently distinctive. Secondary meaning is established when a design is so recognized by consumers that they associate it with a specific source or brand.
The Lanham Act (15 U.S.C. § 1051 et seq.)The Lanham Act is the primary federal law governing trademarks in the United States, enacted in 1946. It establishes a national system for trademark registration and provides legal remedies for trademark infringement, dilution, and false advertising.
Intellectual Property Protecting Plaintiffs’ ABC Pants, etc.
In recent years regarding the Copyright Act, the Court has found itself compelled to comment on how to apply the separability analysis not only for clothing, but also for other original works of art. Design patents are a strange compromise between copyright, trademark and patent protections. While the threshold requirement for a copyright is a minimum standard of originality, design patents require a stricter combination threshold standard of originality, novelty, and uniqueness and also require that the design be ornamental. Design patents do not require a showing of utility as is required for utility patents. Articles dictated solely by considerations of function are barred from design patent protection.
Trade Mark Infringement – 15 U.S.C. § 1114)
15 U.S.C. § 1114 addresses trademark infringement, stating that unauthorized use of a registered trademark in commerce that is likely to cause confusion or deception can lead to civil liability. The law protects the trademark owner's rights and allows for remedies such as injunctions against further infringement.Trade Dress Infringement – 15 U.S.C. § 1125(a)
Trade dress infringement under 15 U.S.C. § 1125(a) occurs when a party uses a product's design or packaging that is likely to cause confusion among consumers regarding the source of the goods. To succeed in a claim, the plaintiff must prove that their trade dress is distinctive, non-functional, and that the defendant's use is likely to confuse consumers.Trade Mark Infringement – 15 U.S.C. § 1125(a)
15 U.S.C. § 1125(a) addresses false designations of origin and false advertising, making it illegal to use any word, term, name, symbol, or device in commerce that is likely to cause confusion about the source or origin of goods or services. This section allows individuals or businesses to seek civil remedies if they believe they are harmed by such misleading practices.False Designation of Origin, Passing Off, & Federal Unfair Competition
False designation of origin, passing off, and federal unfair competition are legal concepts related to protecting businesses from deceptive and misleading practices. They often overlap, with passing off being a specific form of unfair competition, and false designation of origin a type of misrepresentation under unfair competition law, particularly within the Lanham Act.California Common Law Trade Dress and Trade Mark Infringement)
California common law protects trade dress and trademarks based on their use in commerce, allowing owners to assert rights even without federal registration. To prove infringement, a plaintiff must demonstrate prior use of the mark and a likelihood of consumer confusion with the infringing mark.California Unfair Competition – Cal. Bus. & Prof. Code § 17200 et. seq.
California's Unfair Competition Law (UCL), codified in Cal. Bus. & Prof. Code § 17200 et seq., broadly prohibits "any unlawful, unfair, or fraudulent business act or practice" and "unfair, deceptive, untrue or misleading advertising". This law aims to protect consumers and businesses by preventing unfair business practices and promoting fair competition.California Common Law Unfair Competition
California's Unfair Competition Law (UCL) prohibits "any unlawful, unfair, or fraudulent business act or practice and unfair, deceptive, untrue, or misleading advertising". This law broadly aims to protect both consumers and competitors by preventing unfair, deceptive, or fraudulent business practices. While the UCL is the primary statute, California also recognizes a common law tort of unfair competition, which focuses on issues like "passing off" one's goods as another's.The UCL "borrows heavily from section 5 of the Federal Trade Commission Act", but has developed its own body of case law.Design Patent Infringement – 35 U.S.C. § 271
Design patent infringement is defined under 35 U.S.C. § 271 as making, using, offering to sell, or selling a patented design without authorization. This statute also includes those who actively induce infringement or sell components of a patented design.
Design patent infringement is defined under 35 U.S.C. § 271 as making, using, offering to sell, or selling a patented design without authorization. This statute also includes those who actively induce infringement or sell components of a patented design.
Cases of Note
Seirus Innovative Accessories, Inc. v. Cabela's Inc., 827 F. Supp. 2d 1150 (S.D. Cal. 2011)Patentee brought action against competitor, alleging competitor's products infringed on several of its patents. Competitor moved for summary judgment. The court found that Cabela's neck protector was similar to an older design (prior art) that existed before Seirus's patent, making it distinct from Seirus's patented design, thus avoiding infringement.
- Design Patent vs. Prior Art: The court compared Seirus's patented design with a prior art design (U.S. Patent 6,397,403) that also depicted a neck protector.
- Vertical vs. Diagonal Zipper: The key distinction between the patented design and the prior art identified by the court was the zipper: Seirus's design had a vertical zipper, while the prior art design had a diagonal zipper.
Wal-Mart Stores, Inc. v. Samara Bros., 529 U.S. 205, 120 S. Ct. 1339, 1340, 146 L. Ed. 2d 182 (2000)
The lower courts favored Samara, finding the designs protectable. The Supreme Court agreed to review whether a product design could be inherently distinctive for trade dress protection.
A product's design is protectable only if it has acquired secondary meaning. Product design cannot be inherently distinctive because consumers don't typically link a product's design to its source. The Court reasoned that trademarks and packaging can be inherently distinctive as they are meant to identify a brand, while product design is usually focused on aesthetics. Requiring secondary meaning for product design trade dress prevents limiting competition and offers consumers diverse designs. The Court distinguished this case from Two Pesos, Inc. v. Taco Cabana, Inc., noting that restaurant décor, found to be inherently distinctive, is more like product packaging and different from product design.