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 retailer91裸聊视频檚 claims as baseless.

It91裸聊视频檚 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 91裸聊视频� especially with trendy and ubiquitous styles 91裸聊视频� 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.

91裸聊视频淥ne of the problems is that when designs become popular in the marketplace, they tend to get copied,91裸聊视频� said Ashlee Froese, a fashion and branding lawyer and founder of Froese Law in Toronto.

91裸聊视频淚t91裸聊视频檚 sort of a 91裸聊视频榤ore money, more problems91裸聊视频� issue. A style that is valuable is more likely to get ripped off.91裸聊视频�

In an emailed statement, Shannon Higginson, Lululemon general counsel and senior vice-president, said: 91裸聊视频淲e are confident in our position and look forward to properly resolving this case through the courts.91裸聊视频�

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.

It91裸聊视频檚 not the first time Lululemon 91裸聊视频� often credited as the creator of lifestyle athleisure wear 91裸聊视频� 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 Klein91裸聊视频檚 athletic leggings, including its 91裸聊视频減erformance compression overlapping waistband pants,91裸聊视频� were similar to Lululemon91裸聊视频檚 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.

91裸聊视频淭here91裸聊视频檚 no intellectual property watchdog,91裸聊视频� Froese said. 91裸聊视频淚t91裸聊视频檚 up to companies to enforce their rights with design patents.91裸聊视频�

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 Lululemon91裸聊视频檚 logo.

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

Lululemon alleges Peloton began selling 91裸聊视频渃opycat products91裸聊视频� that closely resemble several of the retailer91裸聊视频檚 best-selling styles.

91裸聊视频淧eloton imitated several of Lululemon91裸聊视频檚 innovative designs and sold knockoffs of Lululemon91裸聊视频檚 products, claiming them as its own,91裸聊视频� the company alleges in court documents filed on Nov. 29.

91裸聊视频淭hese knockoffs include Peloton91裸聊视频檚 Strappy Bra, Cadent Laser Dot Legging, Cadent Laser Dot Bra, High Neck Bra, and Cadent Peak Bra, which collectively infringe six different lululemon patents.91裸聊视频�

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 Lululemon91裸聊视频檚 patents.

Peloton noted that its bra 91裸聊视频渋s cut straight across and includes a mesh layer91裸聊视频� while Lululemon91裸聊视频檚 patents 91裸聊视频渉ave a scooped back and do not include a mesh layer.91裸聊视频�

The variations are subtle but could be enough for a court to dismiss Lululemon91裸聊视频檚 complaint, according to fashion lawyer Bogdan Enica.

91裸聊视频淭his type of patent is issued for something quite narrow,91裸聊视频� said Enica, a Miami-based partner at Practus LLP.

Yet he said Lululemon91裸聊视频檚 allegation of unfair competition could be successful.

91裸聊视频淚f you look at all the facts together, it91裸聊视频檚 kind of obvious,91裸聊视频� Enica said. 91裸聊视频淧eloton cancelled their agreement with Lululemon and then turned around and put very similar garments on the same rack 91裸聊视频� it would be hard for some consumers to tell them apart.91裸聊视频�

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

91裸聊视频淧eloton ended the co-branding agreement and then very quickly came to market with their own line,91裸聊视频� she said. 91裸聊视频淭his all happened in 2021. Did they just reverse engineer the product and then say, 91裸聊视频極K, we91裸聊视频檙e gonna freeze you out Lululemon?91裸聊视频�91裸聊视频�

Meanwhile, legal experts say the case also stands out for its apparent use of 91裸聊视频渇orum shopping91裸聊视频� 91裸聊视频� 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.

Peloton91裸聊视频檚 decision about where to file 91裸聊视频渋s presumably an attempt to get the case heard in a district that is, on average, less sympathetic to infringement claims than other districts,91裸聊视频� said Steven Minns, an expert on business strategy and intellectual property protection with the University of British Columbia91裸聊视频檚 Sauder School of Business.

91裸聊视频淧art of the inefficiency of patent litigation stems from the differences in how sympathetic different districts are to plaintiff lawsuits.91裸聊视频�

These cases are also decided on by juries with people 91裸聊视频渨ho typically have little knowledge of the technical and legal aspects of a case,91裸聊视频� he said.

Minns added: 91裸聊视频淚t would seem to be a clearcut case of patent infringement; however, nothing in patent litigation is clear cut.91裸聊视频�

Brett Bundale, The Canadian Press

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