The athleticwear brand, which operates under the corporate name Color Image Apparel Inc., is accusing Forever 21 in California federal court of producing and selling an almost exact replica of its Jubilee bra without any authorization.
“As a result, defendants’ merchandise is likely to cause confusion in the marketplace and to deceive consumers and the public regarding its source,” Color Image wrote in its complaint. “Further, defendants dilute and tarnish the distinctive quality of Color Image’s trade dress by unfairly competing through their unlawful conduct.”
Color Image does not have a registered trademark for the Jubilee bra, but it is arguing infringement of trade dress, which includes the overall appearance of an item and is thought to give a look “secondary meaning,” signaling to a consumer where a product comes from. Trademark registration isn’t required for legal protection.
While trade dress is notoriously difficult to show, Color Image told the court that the Jubilee bra has been sold since 2016 after being developed the previous year and the design and construction represents “a departure from traditional sports bras.”
“It married the athletic nature of a sports bra with the aesthetic of dressier, more feminine tops with distinctive, nonfunctional attributes such as a unique high-neck mesh panel, low-back mesh straps and a wide bottom band,” Color Image wrote in its complaint.
The bra at issue in the Color Image suit is being sold by Forever 21 simply as its Medium Impact Sports Bra and is available on its web site for about $15.
Alo Yoga is sold through its own website and retailers like Nordstrom and Bergdorf Goodman at a significantly higher price point. Its Jubilee bra retails for $60 and other styles are upward of $70. The brand also offers a full range of athletic apparel and accessories for men and women, including tops, leggings and sweaters.
In order to stop Forever 21’s sale of the allegedly copied sports bra, Color Image asked the court for a permanent injunction and to order the fast-fashion retailer to hand over all profits related to the sale of the infringing bra, along with unspecified treble damages.
Alo Yoga isn’t the first brand to make a legal fuss over a sports bra. The rise in popularity of athletic wear has seen some of the biggest companies wrangling to protect their designs.
Yoga-centric company Lululemon in July sued Under Armour for patent and trademark infringement over a bra design Lululemon said is clearly being copied, and asked for an injunction as well as damages.
Although sales of athletic wear could be on a downward turn, court action over designs doesn’t look to be following a similar path.
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