Hi All,
I found this article on patent infringement quite intriguing. Lululemon is suing Peloton for patent infringement in US court on several of its apparel items, namely sports bras and leggings. Maybe this highlights the differences between American and Canadian patent law or maybe this highlights my own ignorance in fashion. However, in Canada, I don’t see the patent suit being successful as it would be difficult to obtain a patent in the first place.
Even if the creation of clothing apparel would fall under the manufacture category, it would likely fail the test for novelty. Are Lululemon’s leggings and sports bras so novel that they deserve patent protection and categorized as an invention? I own some Lululemon apparel and while they’re pretty good, I wouldn’t say they are new forms of clothing that are innovative.
It is interesting that Lululemon’s counsel decided to go with the patent infringement route. If Canadian law was super-imposed on this issue, I would propose that passing off would be more appropriate: Peloton is allegedly copying Lululemon’s get up and that misrepresentation may cause a likelihood of confusion between the two brands. Lululemon can then establish a loss of trade or loss of goodwill . Additionally, Lululemon could claim an infringement on its industrial design, which I think is a more appropriate avenue.
Another issue the article highlights is “forum shopping” in American patent law. Forum shopping “describes efforts by litigants to have their case heard in a jurisdiction perceived to be friendly to their cause”. It strikes me as interesting that different state courts would interpret federal patent laws differently.
Communications Law