- Lululemon sued Costco, accusing it of selling apparel that appears to copy the athleisure brand's designs.
- Joe Ng, CEO of fashion studio Shift, compared pants from the two companies in a YouTube video.
- Ng said the Costco pants mostly used common elements and techniques.
An apparel designer has weighed in on the controversy surrounding a pair of Costco pants that bear a striking resemblance to a popular Lululemon design.
Lululemon sued Costco late last month, accusing the warehouse club of infringing its intellectual property rights to several designs, including its ABC style of men's pants, named for its "anti-ball crushing" design.
YouTuber and CEO of fashion studio Shift Fashion Group, Joe Ng, took pairs of each company's pants identified in the complaint and analyzed them against the athleisure company's claims.
His analysis was based on his expertise as a fashion designer and consultant. While Ng isn't a lawyer, his company partners with brands to design and produce apparel. He has a series of videos in which he disassembles popular articles of clothing to see how they are made.
Ng said in the video that he respected Lululemon's superior design but was concerned that the company appears to be trying to assert legal control over several commonly used design elements. This could put smaller companies like his at risk, he said.
A Lululemon spokesperson said in a statement to Business Insider, the company invests significantly in research, development, and design for its products.
"We take the responsibility of protecting and enforcing our intellectual property rights very seriously and pursue the appropriate legal action when necessary," the spokesperson said.
Costco did not respond to a request for comment from BI on this story.
The lawsuit focuses on "trade dress," which refers to the outward appearance of a product, rather than its functional features.
US protections for trade dress are typically easier to enforce than functional patents, but design patents only protect elements that are nonfunctional, according to an article on the American Bar Association's website. Think of the iconic Coke bottle shape or the Nike Air Force One sneaker — the appearance doesn't affect how the product is made or used.
However, Ng said in the YouTube video that many of the design elements that Lululemon highlighted in its lawsuit have functional purposes and are used by many designers.
In its complaint, Lululemon said Costco copied several features of the ABC Pants to make its Kirkland Signature 5 Pocket Performance Pant. Those include a crotch "gusset," a rear panel separating the belt loops and pockets, and curved pockets adorned with a "decorative metallic circle."
"When you really look at what a gusset does, it's about having enough fabric here to alleviate pressure from the front and back seams to make it more comfortable for the wearer," Ng said in his video. "What makes the ABC pant anti-ball crushing is the actual gusset itself."
In addition to Costco, several denim and workwear pants from other manufacturers feature a similar crotch gusset for comfort, mobility, and durability.
Ng also said that both the rear panel and the curved pockets with rivets are common features of many denim pants, most notably the 58-year-old design of Levi's 505 jeans.
"Just Google 'five pocket pant,'" he said. "They're going to be present on pretty much all of those pants."
The similarities that Lululemon highlights between the two pants aren't likely to convince a shopper to trade up or down from their respective choice, which is likely based on fit, fabric, and finish, rather than aesthetics, Ng said. Costco's pants cost around $20, while Lululemon's retail for $128.
"Are these alleged dupes comparable to the ABC pant? I would say no," he said. "I don't think that the consumer who is looking to buy this pant is the same consumer who's looking to buy this pant."
While Ng sided with Costco in his assessment of Lululemon's lawsuit, he concluded, as several other reviewers have, that the authentic ABC pants are a much better product.
"Would I be surprised if the Kirkland team drew inspiration from the ABC Pant? Absolutely not. Just as I wouldn't be surprised if the ABC pant team drew inspiration from a pair of denim," he said. "That is how good product development works. You build upon the ideas that come before you."
