Lululemon is suing Costco, alleging that the warehouse chain is undercutting its business by selling “knockoff” versions of its iconic athleisure clothes for less.
“Plaintiff lululemon athletica canada inc. has suffered and will continue
to suffer significant damages in an amount to be determined at trial as a direct and proximate result of Defendant’s infringement,” the lawsuit reads.
Lululemon is seeking damages in lost profits and for Costco to stop selling the alleged knockoffs. In the lawsuit filed Friday, the apparel company says that Costco has made and sold dupes of Lululemon’s Scuba hoodies and sweatshirts, Define jackets and ABC pants.
The fact that Costco sells similar products for much less isn’t exactly a secret: Social media posts about the dupes have racked up millions of views and, as the lawsuit pointed out, articles from The Washington Post and The New York Times have highlighted how good the Costco dupes are, like the Kirkland $20 pants, which the Times wrote is a dupe of Lululemon’s $130 ABC pants.
Lululemon argues that its products are so unique, they deserve protection via U.S. trademark law.
According to the lawsuit, Lululemon’s “product design process is driven by extensive research, guest feedback, and testing to develop high-performance products with innovative design concepts, impressive construction techniques, and strategic fits,” and Costco has “unlawfully traded upon” Lululemon’s “reputation, goodwill and sweat equity.”
Lululemon has also sent cease and desist letters to various companies about alleged knockoff products, including Costco for its 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 and Kirkland 5 Pocket Performance Pant.
Costco did not immediately respond to a request for comment.
Comparison between Lululemon and Costco products. courtesy of lawsuit
The lawsuit also alleges that when Costco sells the Lululemon dupes, they are hoping the customer won’t know the difference. Showing side-by-side images of the Lululemon products and the Costco products, pointing out their similar designs, the lawsuit argues that because Costco’s alleged dupes “look substantially the same” as Lululemon’s design patents to an “ordinary observer,” it is infringed upon.
Copying a design is legal most of the time because fashion is not protected under copyright law, according to Vox. Brands can, however, register a design as a trade dress if the design is so recognizable that the average consumer recognizes it.
In 2017, a shoe brand called Allbirds sued Steve Madden claiming its signature wool running shoe is a trade dress and Steve Madden couldn’t copy its design. The two brands reached a undisclosed settlement in 2018.
In its lawsuit, Lululemon said that because it has invested “substantial effort and resources” into its brand to create “high-performance products,” it is “among the most recognizable athletic and lifestyle apparel in the world.”
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