Lululemon and Peloton are suing each other over clothing design patents and trade dress. Specifically, the case involves designs for athletic bras and leggings. Peloton won the "race to the courthouse" in response to a cease and desist letter from Lululemon's counsel. It initially filed a declaratory judgement action for non-infringement in the Southern District of New York on November 24, 2021. Lululemon then filed its complaint for infringement of several design patents and trade dress in its bra and legging designs. Procedurally, expect to see the cases consolidated in New York. 
 
The dispute apparently arose after Peloton began to manufacture its own athletic bras and leggings, rather than sourcing them from Lululemon. For years, Peloton sold apparel including its “P” logo, under an OEM agreement with Lululemon. Recently, it decided to manufacture its own apparel for women and men. In doing so, Lululemon claims that Peloton infringed on six of its patented designs in the process. “Peloton did not spend the time, effort, and expense to create an original product line,” Lululemon stated in its complaint. “Instead, Peloton imitated several of Lululemon’s innovative designs and sold knock-offs of Lululemon’s products, claiming them as its own.”
 
From a legal perspective, fashion designs are notoriously difficult to prosecute via design patents. Because clothing is largely functional, ornamental aspects often include functionality. In the Lululemon case, bra strap arrangements arguably include both elements. While the designs may have met the novelty standard for design patents, the standard for infringement requires virtually an exact copy of the patented design. Insignificant variations may be ignored, but it is difficult to assert that a "variation" is, on the one hand, insignificant, while conversely asserting that the same feature that infringes is significant. More successful claims can be found under trade dress Lanham Act claims. However, trade dress requires a showing of inherent or acquired distinctiveness. Athletic bras and leggings have been produced for a long time by many manufacturers such as Nike, Adidas, Puma and others, so that meeting this showing is itself problematic. 
 
In planning an IP strategy for fashion and generally ornamental designs, it is important to understand that design patents provide narrow protection that is limited in scope. What you see is what you get. If you can couple the design patent with other IP  ̶  i.e., utility patent for functionality, or trade dress having a longer history of consumer identification  ̶  there is a greater chance of success. Procedurally, if potential litigation is anticipated in response to a cease and desist letter, filing a protective writ in a preferred forum prior to mailing the letter may avoid the race to the courthouse as occurred in the Lululemon cases.