Are Costco’s Lululemon Dupes Counterfeit?

Lululemon Athletica is suing Costco for selling alleged knockoff versions of its activewear in what appears to be a maneuver to better police “dupe culture.”

Dupes, or cheaper look-alikes of high-end styles, have long been a mainstay of the fashion cycle — particularly with the spread of private labels — but are getting more attention as they’re now widely hyped as bargains on TikTok and Instagram.

“Such items used to be called knockoffs. They used to be embarrassing,” Washington Post reporter Maura Judkis wrote in 2023. But now, “influencers and aggregators crow about their finds as ‘an incredible dupe for Hailey Bieber’s party dress,’ or ‘a perfect dupe for Kate Middleton’s’ red Alexander McQueen coat.’”

The knockoffs are reportedly made possible by the Copyright Act of 1976 that found copyright law doesn’t extend to ideas, procedures, processes, systems, methods of operation, concepts, principles or discoveries.

“Broadly speaking, it’s really easy and oftentimes completely legally aboveboard for companies to copy the design of garments, and oftentimes accessories as well, because [intellectual property] law generally doesn’t like to give monopolies to single companies for useful things,” Julie Zerbo, a lawyer and the founder of the Fashion Law, recently told The Washington Post.

Lululemon Accuses Costco of Illegally Trading on its ‘Reputation, Goodwill and Sweat Equity’

In the lawsuit, however, Lululemon said that “given the success” of its products, “some companies have replicated or copied Plaintiffs’ proprietary apparel designs to create what are colloquially known in the fashion world as ‘knockoffs’ or ‘dupes.’”

“The Infringing Products create an improper association with Plaintiffs’ authentic products,” the complaint continued, citing the example of the hashtag “LululemonDupes” on social media, which helps users find reviews and sources of similar products at a lower price.

The lawsuit accuses Costco of illegally trading on Lululemon’s “reputation, goodwill and sweat equity by selling unauthorized and unlicensed apparel” based on the athleisure brand’s design patents.

The alleged knockoffs include versions of Lululemon’s Scuba hoodies and sweatshirts, Define jackets, and ABC pants under Costco’s Kirkland Signature brand — in addition to third-party brands including Danskin, Jockey, and Spyder sold at a fraction of Lululemon’s price.

The suit cites specific design details on some items that allegedly violate patents, but also consumer confusion caused by dupes. Lululemon cited articles from The New York Times and The Washington Post calling Costco’s products “dupes” of Lululemon’s and said that the similar designs could confuse buyers into thinking that Lululemon made them for Costco’s private label.

“Indeed, one of the purposes of selling ‘dupes’ is to confuse consumers” into believing that they are the authentic products, the lawsuit claimed.

Lululemon further argued that Costco’s ambiguity about the manufacturers of Kirkland products lead some customers to believe that the Kirkland-branded products are made by the same manufacturers as the original products.

Costco hasn’t responded to the lawsuit.

The Question: ‘Where Does Inspiration End and Imitation Begin?’

An article on Marketplace said proving design patents have been violated is difficult because the matter is often subjective. The article stated, “Is a Ford Bronco a dupe of a Jeep? Is Pepsi a dupe of Coke? Where does inspiration end and imitation begin?”

Christopher Durham, president of the Velocity Institute, a consulting firm focused on private label strategy, told Marketplace that copycats lead to more options and lower prices for consumers while often inspiring the next trend.

He said, “If you look across all of retail, 95% of all things are duplicates, 5% are innovation.”

Elizabeth Dipchand, an intellectual property lawyer and managing partner of Dipchand LLP, nonetheless told CBC that while lookalike product has been around for decades, the expanding market for dupes could lead other premium brands to file similar lawsuits.

She said, “[Costco is not a] counterfeit manufacturer from overseas that trickles in counterfeit bags and… shoes and all sorts of other goods. This is a very well-known multinational with significant bricks and mortar affecting the bottom line of another very, very well-known higher end and higher priced company.”