Copyright, Patent & Trademark Law in Technical Outerwear
I was fascinated with the in-class discussion regarding the lack of copyright in clothing designs that was undertaken in February. As an avid climber and skier, an idea that immediately stood out to me was to examine the plethora of patents that might serve to protect proprietary design elements and differentiate companies in the technical outerwear business. In short, I was curious if patent and trademark law was a way in which technical apparel with novel features might be granted protection despite clothing designs generally not being copyrightable[1].
Examples of these types of features in technical apparel include Gore-Tex (a waterproof but breathable material used in apparel[2]), MIPS (a concussion reduction technology for helmets[3]), RECCO (a sensor that allow for easier detection by search and rescue[4]), and different types of synthetic or treated down insulators. Some of these innovative technologies are patented or trademarked, either as part of a separate brand (e.g. Gore-Tex[5]) or by a particular brand itself (e.g. Patagonia’s H2No waterproof membrane[6]). Many of these features are heavily marketed as being able to enhance performance, comfort, and safety, particularly in the event of an emergency[7]. As a result, outdoor sports enthusiasts often have strong personal preferences between brands and performance characteristics when it comes to their technical outerwear[8].
An example of a local company that takes this approach is North Vancouver based Arc’teryx. Anecdotally, many people I know have a strong preference for the brand’s signature Alpha SV and related lines of jackets which have been in production since the brand’s inception[9]. Features that make this jacket a standout include its hood which fits well over helmets, but is also designed to collapse via drawstring into a smaller configuration for wear without a helmet. This distinguishes them from most competitors as it results in a hood that effectively shields the wearer from the rain but does not obstruct vision in either configuration. It also results in a fairly distinctive hood shape in its helmetless configuration (Figure 1). I was therefore very interested to learn that Arc’teryx has a patent for its unique hood design[10].
Figure 1: Side profile of this style of Arc’teryx hood in its helmetless configuration.
An interesting example of how these kinds of applications of patent or trademark law might function to protect functional apparel design comes from another local company, Lululemon. Lululemon sued Peloton in 2021, alleging that after ending a co-branding apparel agreement Peloton created knockoffs of Lululemon’s designs and sold them as their own[11]. While patent and trademark infringement were the main allegations, the summary of the action opened with many concepts that seem to recall the aims of copyright law[12]. For example, it emphasized that Lululemon’s designers “work tirelessly to design and develop innovative products, including for yoga, training, cycling, running, and other fitness activities […] recognized for their […] distinctive style”[13]. Design choices that result in a distinctive style could be analogized to artistic choices made by an artist or author, especially as Lululemon concedes that the trademarked design is not a functional one[14]. The lawsuit ultimately settled[15].
Should we afford copyright protection to technical apparel?
If brands such as Lululemon are using trademark and patent law to protect some of their designs in ways that may speak to similar objectives to copyright’s protection of original creative works[16], it asks the question of whether or not the design of technical apparel should simply be copyrightable. While there have been many arguments both for and against making apparel design copyrightable[17], perhaps these and other examples of the use of trademark and patent law to protect unique aspects of technical apparel that are integrated into their designs would constitute another reason why the answer to this question should be “yes”.
References
[1] See e.g. Catherine Holland, “Utility Patents in Fashion Design? Nike & Huzu Innovate The Way” (15 September 2017), online: <https://www.knobbe.com/news/2017/09/utility-patents-fashion-design-nike-huzu-innovate-way>; Rachel Kim, “How Is Fashion Protected by Copyright Law?”, Copyright Alliance Blog, (10 February 2022), online: <https://copyrightalliance.org/is-fashion-protected-by-copyright-law/>.
[2] See “US4194041A Waterproof Laminate” (18 March 1980), online: < https://patentimages.storage.googleapis.com/78/8c/86/d2335e8366e8b7/US4194041.pdf>.
[3] See e.g. Gina DiGiacomo, Stanley Tsai & Michael Bottlang, “Impact Performance Comparison of Advanced Snow Sport Helmets with Dedicated Rotation-Damping Systems” (2021) 49 Annals of Biomedical Engineering at 2805.
[4] “RECCO Technology”, online: <https://recco.com/technology/>.
[5] See e.g. “GORE-TEX – Trademark Details”, online: <https://trademarks.justia.com/856/91/gore-85691347.html>. Interestingly, the GORE-TEX trademark listed here is also listed as expired.
[6] “H2NO Plus”, online <https://trademarks.justia.com/735/40/h2no-plus-73540605.html>.
[7] See e.g. the product description of these Arc’teryx SV Gloves, online: <https://www.regear.arcteryx.com/p/arcteryx-alpha-sv-glove/8237>.
[8] See e.g. Hwa-Sook Yoo, “Outdoor wear market segmentation based on consumer knowledge and consumer demand for product development”, (31 July 2015) 24:4 Korean J Human Ecol at 587. See also the plethora of online gear review websites and endless gear advice discussions on online forums.
[9] Arc’teryx, “Obsessive Design: The (Brief) Story of Our First Jacket (Ep. 3)”, online (video): <https://www.youtube.com/watch?v=TUnRJHFY7NY>.
[10] See “US6654963B2 Outdoor jacket”, online: <https://patents.google.com/patent/US6654963B2/en>; “Patent 2332201 Summary”, online: < https://www.ic.gc.ca/opic-cipo/cpd/eng/patent/2332201/summary.html?query=Arc’teryx+jacket&type=basic_search>.
[11] Lululemon Athletica Canada Inc. v. Peloton Interactive, Inc., (Demand for Jury Trial, filed 28 June 2023), online: <https://www.courtlistener.com/docket/61579315/1/lululemon-athletica-canada-inc-v-peloton-interactive-inc/> at para 4.
[12] Ibid, at paras 1-4.
[13] See Ibid, at para 2.
[14] Ibid, at para 33.
[15] CBC News, “Lululemon settles lawsuit with Peloton over allegations of ‘copycat’ clothing?”, online: <https://www.cbc.ca/news/canada/british-columbia/lululemon-peloton-patent-infringement-battle-settled-1.6602716>.
[16] See Copyright Act, RSC 1985, c. C-42 at s. 5(1).
[17] See e.g. Sara B Marcketti & Jean L Parsons, “Design Piracy and Self-Regulation: The Fashion Originators’ Guildof America, 1932-1941” (2006) 24:3, Clothing & Textiles R J at 214.
Communications Law