To the untrained eye, U.S. Design Patent No. D709,668 is just a sports bra.

But the strappy undergarment is among six different design patents at the centre of a high-profile legal scuffle between athletic apparel retailer Lululemon Athletica Canada Inc. and exercise equipment company Peloton Interactive Inc.

The former fitness clothing partners are going head-to-head in U.S. courts, with Lululemon accusing Peloton of patent infringement over its new line of bras and leggings and Peloton brushing off the retailerB次元官网网址檚 claims as baseless.

ItB次元官网网址檚 a case that shines a spotlight on the cutthroat realm of fashion and the fine line between inspiration and imitation.

It also highlights the challenges of proving design patent infringement in court B次元官网网址� especially with trendy and ubiquitous styles B次元官网网址� and the use of so-called forum shopping in legal fights.

Multiple lawyers suggested that while winning a patent infringement case is typicallyan uphill battle, Lululemon has a strong case with its allegation of unfair competition.

B次元官网网址淥ne of the problems is that when designs become popular in the marketplace, they tend to get copied,B次元官网网址� said Ashlee Froese, a fashion and branding lawyer and founder of Froese Law in Toronto.

B次元官网网址淚tB次元官网网址檚 sort of a B次元官网网址榤ore money, more problemsB次元官网网址� issue. A style that is valuable is more likely to get ripped off.B次元官网网址�

In an emailed statement, Shannon Higginson, Lululemon general counsel and senior vice-president, said: B次元官网网址淲e are confident in our position and look forward to properly resolving this case through the courts.B次元官网网址�

Peloton said it would not comment on active litigation.

The dispute comes at a time when athleisure is booming.

Strong demand for athletic clothing continued during the pandemic and is leading apparel sales so far in 2021, according to the NPD Group, a U.S.-based market research company.

ItB次元官网网址檚 not the first time Lululemon B次元官网网址� often credited as the creator of lifestyle athleisure wear B次元官网网址� has turned to the courts to enforce its design patents.

In 2012, the Vancouver-based retailer accused fashion house Calvin Klein Inc. of patent infringement over a yoga pant design in court filings.

It claimed some of Calvin KleinB次元官网网址檚 athletic leggings, including its B次元官网网址減erformance compression overlapping waistband pants,B次元官网网址� were similar to LululemonB次元官网网址檚 patented crossover fabric design used in its Astro Pant.

The case was settled out of court.

In 2017, Lululemon dropped a similar case against Under Armour Inc. that accused the athletic apparel maker of copying the design of its sports bras.

B次元官网网址淭hereB次元官网网址檚 no intellectual property watchdog,B次元官网网址� Froese said. B次元官网网址淚tB次元官网网址檚 up to companies to enforce their rights with design patents.B次元官网网址�

The Lululemon-Peloton case stands out in part because of the history between the once-chummy companies.

They launched a co-branding relationship in 2016, with Lululemon providing the stationary bicycle and treadmill maker with apparel, and Peloton selling the merchandise with its own trademark alongside LululemonB次元官网网址檚 logo.

Then earlier this year, Peloton ended the relationship and shortly after announced its own private label, Peloton Apparel.

Lululemon alleges Peloton began selling B次元官网网址渃opycat productsB次元官网网址� that closely resemble several of the retailerB次元官网网址檚 best-selling styles.

B次元官网网址淧eloton imitated several of LululemonB次元官网网址檚 innovative designs and sold knockoffs of LululemonB次元官网网址檚 products, claiming them as its own,B次元官网网址� the company alleges in court documents filed on Nov. 29.

B次元官网网址淭hese knockoffs include PelotonB次元官网网址檚 Strappy Bra, Cadent Laser Dot Legging, Cadent Laser Dot Bra, High Neck Bra, and Cadent Peak Bra, which collectively infringe six different lululemon patents.B次元官网网址�

However, legal experts say design patents are issued for extremely specific patterns and styles, making a patent infringement case difficult to prove.

In a pre-emptive claim Peloton filed on Nov. 24, for example, the company highlighted the differences between the Peloton Branded Strappy Bra and LululemonB次元官网网址檚 patents.

Peloton noted that its bra B次元官网网址渋s cut straight across and includes a mesh layerB次元官网网址� while LululemonB次元官网网址檚 patents B次元官网网址渉ave a scooped back and do not include a mesh layer.B次元官网网址�

The variations are subtle but could be enough for a court to dismiss LululemonB次元官网网址檚 complaint, according to fashion lawyer Bogdan Enica.

B次元官网网址淭his type of patent is issued for something quite narrow,B次元官网网址� said Enica, a Miami-based partner at Practus LLP.

Yet he said LululemonB次元官网网址檚 allegation of unfair competition could be successful.

B次元官网网址淚f you look at all the facts together, itB次元官网网址檚 kind of obvious,B次元官网网址� Enica said. B次元官网网址淧eloton cancelled their agreement with Lululemon and then turned around and put very similar garments on the same rack B次元官网网址� it would be hard for some consumers to tell them apart.B次元官网网址�

Indeed, the timeline is likely to be a factor in the case, Froese said.

B次元官网网址淧eloton ended the co-branding agreement and then very quickly came to market with their own line,B次元官网网址� she said. B次元官网网址淭his all happened in 2021. Did they just reverse engineer the product and then say, B次元官网网址極K, weB次元官网网址檙e gonna freeze you out Lululemon?B次元官网网址橞次元官网网址�

Meanwhile, legal experts say the case also stands out for its apparent use of B次元官网网址渇orum shoppingB次元官网网址� B次元官网网址� a term that describes efforts by litigants to have their case heard in a jurisdiction perceived to be friendly to their cause.

For example, Peloton filed its lawsuit in New York while Lululemon fired back with a claim in California.

PelotonB次元官网网址檚 decision about where to file B次元官网网址渋s presumably an attempt to get the case heard in a district that is, on average, less sympathetic to infringement claims than other districts,B次元官网网址� said Steven Minns, an expert on business strategy and intellectual property protection with the University of British ColumbiaB次元官网网址檚 Sauder School of Business.

B次元官网网址淧art of the inefficiency of patent litigation stems from the differences in how sympathetic different districts are to plaintiff lawsuits.B次元官网网址�

These cases are also decided on by juries with people B次元官网网址渨ho typically have little knowledge of the technical and legal aspects of a case,B次元官网网址� he said.

Minns added: B次元官网网址淚t would seem to be a clearcut case of patent infringement; however, nothing in patent litigation is clear cut.B次元官网网址�

Brett Bundale, The Canadian Press

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