The Context: When "Dupe Culture" Meets IP Law

Lululemon's SCUBA hoodies, DEFINE jackets, and ABC trousers — typically priced at $100–$200 — have long attracted copycat products. Social media hashtags like #LululemonDupes created a market for "look-alike" products at a fraction of the price. Costco entered this space with products from brands including Danskin, Jockey, and Spyder — products that Lululemon alleges are not mere coincidental similarities, but systematic misappropriation of its protected intellectual property.

Lululemon boutique store interior contrasted with Costco's vast warehouse shelving — the 'dupe culture' clash
The brand positioning mismatch at the heart of the lawsuit: Lululemon's curated retail environment vs. Costco's volume warehouse model. Source: 跨域知见

What makes this case analytically interesting is not the underlying business dispute, but the legal architecture Lululemon had built before it ever needed to sue. The lawsuit is only possible because Lululemon had layered three distinct forms of IP protection across the same products over many years.

Lululemon's DEFINE jackets (pink and blue), SCUBA hoodies (green and magenta), and ABC pants (olive) — the product lines at the center of the dispute
The three product lines at the center of the dispute: DEFINE jackets, SCUBA hoodies, and ABC trousers — each covered by different categories of IP protection. Source: 跨域知见

Weapon One: Design Patents

1
Hardest to Circumvent
Design Patents (U.S. Patent Nos. D989,442 & D1,035,219)

Lululemon holds multiple U.S. design patents covering the ornamental appearance of its SCUBA hoodie. Design patents protect a product's visual appearance — shape, configuration, surface ornamentation — as distinct from its functional features.

The infringement test for design patents is the "ordinary observer" standard established in Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665 (Fed. Cir. 2008): would an ordinary purchaser, in a normal buying context, find the accused design substantially similar to the patented design? The standard does not require identical replication — substantial visual similarity is sufficient.

Design patents offer several practical advantages over other IP tools in the brand protection context:

  • Faster prosecution: U.S. design patents typically issue in 12–18 months, versus 2–4 years for utility patents
  • Lower cost: Filing and prosecution fees are substantially lower than utility patents
  • Precise scope: The scope of protection is defined by the drawings, making infringement analysis relatively straightforward
  • Cross-context value: Design patents underpin Amazon platform complaints, U.S. Customs recordals, and TRO applications in parallel
USPTO design patent registration table showing D989,442 and D1,035,219 for the SCUBA hoodie, with side-by-side photos comparing lululemon SCUBA versus Danskin Half-Zip products
Court exhibit: USPTO design patent registrations D989,442 and D1,035,219 covering the SCUBA garment silhouette (top), with side-by-side product comparison between the lululemon SCUBA® and Danskin's Half-Zip Pullover and Hoodie (bottom). Source: 跨域知见

Weapon Two: Registered Trademarks

2
Name, Identity & Color
SCUBA® and TIDEWATER TEAL™

Lululemon's trademark claims extend beyond its brand name to cover a product line name (SCUBA®) and a specific proprietary color (TIDEWATER TEAL™ — a distinctive blue-green). Costco's products allegedly used the same color family and product naming conventions, creating consumer confusion.

The TIDEWATER TEAL claim illustrates an underutilized protection pathway: color as a trademark. A color can be registered as a trademark if it has acquired "secondary meaning" — that is, consumers associate the color with a specific brand source through long, exclusive use. Tiffany blue and Hermès orange are the canonical examples. The requirements are demanding: extensive, exclusive use over many years, documented consumer association evidence, and a showing that the color is non-functional in the relevant product category.

Chinese Brand Implication

Most Chinese brands register only word marks when entering foreign markets. Product line names, distinctive color combinations, and packaging configurations — all potentially registrable as trademarks — are routinely overlooked. These take time to build into protectable assets, which is precisely why they need to be considered at market entry, not years later.

Weapon Three: Trade Dress

3
Most Sophisticated — and Most Durable
Trade Dress (Reg. Nos. 7,526,264 & 7,526,265)

Lululemon's most legally ambitious claim covers the "total image and overall appearance" of its DEFINE jacket — the combination of curved seam lines, fitted cut geometry, and zipper configuration that gives the jacket its distinctive visual character. Lululemon has registered these design elements as trade dress trademarks.

Trade dress protection requires satisfying two conditions. First, the claimed elements must be non-functional — they must be aesthetic choices, not features dictated by the product's utility. Second, the elements must have acquired secondary meaning: consumers must associate this overall look with Lululemon as a source, not simply as an appealing design. Building secondary meaning requires sustained, exclusive market presence — years of consistent product presentation, advertising, and consumer engagement.

USPTO trade dress registration table for Reg. Nos. 7,526,264 and 7,526,265 showing DEFINE jacket silhouette drawings, with product comparison photos of lululemon DEFINE jacket versus Jockey and Spyder yoga jackets
Court exhibit: Trade dress registrations 7,526,264 and 7,526,265 protecting the DEFINE jacket's distinctive silhouette and seam geometry (top), alongside product comparisons with Jockey Ladies Yoga Jacket (front) and Spyder Women's Yoga Jacket (back) sold at Costco. Source: 跨域知见

The strength of trade dress protection, once established, is that it is extremely difficult to design around. A competitor can modify a product to avoid infringing a specific design patent claim, and can change a name to avoid trademark infringement — but replicating the overall aesthetic "feel" of a protected trade dress while avoiding infringement is a much narrower path to walk.

Trade dress is the hardest form of brand IP to build, and the hardest for competitors to circumvent. Its value increases precisely because it takes years of consistent market presence to establish — a barrier that favors incumbents.

How Costco's "Dupe Strategy" Was Characterized

Lululemon's complaint characterizes Costco's conduct not as ordinary competition, but as a deliberate strategy to profit from consumer confusion. The complaint identifies two types of consumer behavior Costco allegedly exploited:

  • Confusion purchasers — consumers who mistakenly believe Costco's products are Lululemon products, or Lululemon-authorized products
  • Knowing purchasers — consumers who know the product is a copy, but buy it precisely because it is indistinguishable from the original in social contexts, thereby diluting Lululemon's brand value without paying the brand premium

The complaint even cites media coverage — including a New York Times comparison finding the products "looked almost identical" — as evidence of systematic copying rather than coincidental similarity.


Three Lessons for Chinese Brands Going Global

1. Build the IP Portfolio Before You Need It

Lululemon's ability to sue Costco across three legal theories simultaneously reflects IP protection built over years, not assembled in response to the threat. Design patent applications have filing deadlines triggered by public disclosure (12 months in the US, 12 months in the EU). Color and trade dress trademarks require years of exclusive use before secondary meaning can be claimed. The time to start is at product launch — or earlier.

2. Layer Multiple Rights Across the Same Product

The power of Lululemon's position comes from the combination: design patents cover specific visual features, trademarks cover names and colors, and trade dress covers the overall aesthetic. A competitor can potentially design around any single right. Designing around three simultaneously, while producing a commercially viable alternative, is significantly harder. This is not redundancy — it is strategic depth.

3. Enforcement Action Itself Is Brand Communication

Lululemon's lawsuit generated coverage in the New York Times, Reuters, Bloomberg, and CNN. Whatever the eventual legal outcome, the filing sent a clear market signal: this brand takes its IP seriously, has documented rights to enforce, and will act on them. For Chinese brands building premium positioning in international markets, strategic enforcement — when the IP foundation is solid — amplifies brand credibility alongside legal protection.

Conclusion

The Lululemon v. Costco case is still in early stages, and its eventual resolution will depend on fact-specific analysis that no one can predict with certainty at this stage. But the case already demonstrates something important: the brands best positioned to protect their market position are those that built layered IP rights systematically, over time, before the competitive threat materialized.

For Chinese brands at any stage of international expansion — whether entering the US market for the first time or already operating at scale — the architecture of this case offers a practical framework. Design patents, trademarks (including color and product-line marks), and trade dress are not luxury IP tools reserved for established multinationals. They are accessible to any brand willing to build them early.