August is a famously quiet month for lawyers and business executives. School holidays,
searing heat (okay maybe not here in Blighty), and the legislative bodies’ summer reccess, means office slaves can chill out and recamp to the seaside to drink margaritas in the sun. However, design patent attorneys have this August had to set their cocktails aside and get to work as fashion companies get serious about protecting their designs.
Lululemon, the luxury yoga apparel brand have served fashion giant, Calvin Klein, with a patent lawsuit. Lululemon claim that Calvin Klein have, with their ‘Performance’ pants infringed patents on Lululemon’s ‘Astro’ pants, copying the unique waistband design for which they have a patent. Rarely used in the fashion industry, the design patent, which refers to the ornamental aspects of an invention, must be something new in the sense that no single identical design exists in the prior art.
Design patents are also expensive and take a long time to obtain. Current fashion evolves at such a quick pace that most designs will not have a long enough shelf life for design patents to be useful. However, Lululemon produce the Astropant in multiple styles every season, making the product an ideal candidate for patent protection. Lululemon have a big battle on their hands. Not only will they have to prove that Calvin Klein’s ‘Performance’ pants look like the patented pants, they will have to fend of any ‘prior art’ claims made by Calvin Klein’s defence. This will mean proving no other similar products existed prior to Lululemon’s ‘Astro’ pants – no mean feat in the history of fashion design that goes back thousands of years.