The Kirkland Brand Complication
A particularly intriguing aspect of Lululemon’s case involves Costco’s private label Kirkland brand strategy. Lululemon alleges that Costco is known to use manufacturers of popular branded products for its Kirkland offerings, though this information isn’t clearly revealed to customers. This practice, according to the lawsuit, may lead some shoppers to believe that Kirkland-branded products are manufactured by the same suppliers as the original branded items.
“This could rule in Lululemon’s favor as something that weighs toward consumer confusion,” said Alexandra Roberts, a professor of law and media at Northeastern University. However, she noted that most products mentioned in Lululemon’s complaint weren’t sold under the Kirkland brand, potentially undermining this particular argument.
Legal Expert Analysis Reveals Challenges
Roberts, who specializes in trademark law, expressed skepticism about some of Lululemon’s claims, particularly the company’s assertion of common law trade dress protection over what she described as “a triangle kind of shape in the crotch region” of the ABC pants.
“My first reaction as a trademark expert is that looks pretty functional,” Roberts explained, noting that functional design elements typically aren’t protected under trademark law. “I was just cracking up because that particular claim seemed really far-fetched to me. Those pants look really basic.”
The distinction between functional and aesthetic design elements often proves crucial in fashion-related intellectual property disputes. While purely decorative elements may receive trademark protection, features that serve practical purposes typically remain available for competitors to use.
