Litigation in the Fast-Growing “Athleisure” Industry

Lululemon’s controversial founder and CEO Chip Wilson is no stranger to controversy. He’s divined the name from an attempt to maximize the number of L’s; he believes that Japanese consumers flock to so-named companies since the letter “L” is not present in Japanese. And he says his company’s apparel is meant for “Super Girls,” a narrow demographic comprised of daughters of divorced “Power Women” of the 70s and 80s. A key ingredient of Lululemon’s success has been their fabrics, new thick yet stretchy and soft blends of plastic fibers, so it is perhaps unsurprising that 76% of the company’s litigation since 2019 has been over intellectual property (IP). This stands in stark contrast to Lululemon’s biggest athleisure competitors, and even the larger brands to which Chip Wilson has compared the company.

IP Litigation

Of the 39 IP cases in which Lululemon has been a party, 20 have been part of the larger trend in the Northern District of Illinois over predominantly Chinese counterfeiters and knockoff manufacturers. While Nike has filed five times as many cases against these producers, these suits make up a larger share of Lululemon’s total litigation efforts, though a smaller share of their IP litigation. 

Outside the counterfeiting suits, Lululemon has faced a few suits over technology they use in their stores, like RFID inventory tracking. They have also faced a number of suits around their smart mirror, which allows customers to attend yoga classes from the comfort of their home. 

Lululemon vs Nike

Outside the counterfeiter/knockoff producer suits, Lululemon’s most frequent IP opponent has been the sports giant Nike. Four of these suits, some before the Patent Trial and Appeal Board, concern technology used in the Lululemon mirror. Nike argues that the smart mirror infringes on their movement and biometric-tracking patents, as used in Nike’s now-defunct FuelBand. The two companies have also sparred over the use of textiles in shoe uppers. Broadly, Nike has filed seven suits against various companies over their patents covering such shoe construction, three of which have targeted Lululemon.

Americans with Disabilities Act Suits

Lululemon and their athleisure competitors have faced a number of suits citing the Americans with Disabilities Act. In particular, these suits are brought by blind and visually impaired individuals who allege that the companies’ websites and apps are not sufficiently accessible to them. According to one complaint, many blind and visually impaired individuals access the internet using keyboards combined with screen-reading software. This software, as the name suggests, reads the information on a website or app and then either uses text-to-speech code to tell the user what is on the site or translates the text into braille on a separate reusable pad. 

For this software to function, the information on a website or app must be capable of being rendered into text. If the website or app is not structured in such a way that this can be done, blind and visually impaired individuals cannot use the website/app, the plaintiffs allege. 

Established in 1994, the World Wide Web Consortium (W3C) is a consortium of member organizations that develop universal standards for the internet. Part of their mission is to create an internet that is universally accessible, even by those with disabilities. To that end, in 1999 W3C adopted the Web Content Accessibility Guidelines, which were most recently updated in October 2023. The Accessibility guidelines describe in-depth what websites must do to be fully accessible, and this includes providing text alternatives for all non-text content.