Proskauer Rose LLP
December 10, 2015
They can run, but they can’t hide! Asics and New Balance, two leading sports apparel companies known for their popular brands of running shoes, may have gotten themselves stuck in the mud. Blackbird Tech LLC, a firm that routinely assists individual investors and small companies realize the value of their patents, sued the several companies in Delaware federal court this month for allegedly infringing its own patent for a sports bra. (See e.g., Blackbird Tech LLC v. ASICS America Corp., No. 15-00929 (D. Del. filed Oct. 14, 2015)). Blackbird also filed separate suits against the sportswear entities, citing U.S. Patent Number 7,867,058 in similar complaints. In addition to going after Asics and New Balance, Blackbird stretched its patent portfolio even further and pursued a claim against Lululemon – no stranger to litigation itself – along with Swoob and Zoot Sports, two lesser-known sports apparel companies.
The company generally seeks a recovery of past damages in the form of, at a minimum, a reasonable royalty and injunctive relief, indicating a desire for a jury trial on all issues. According to its website, Blackbird often resolves these kinds of disputes through settlement.
The patent in question is described with particularity: it covers a sports bra with an integral storage pouch formed by a top opening on the material, capable of holding an object such as a phone or other electronic device. The patent was filed in 2007 and eventually published in 2011. According to Blackbird, the products that infringe on the patent include: Asics’ Abby Pocket Bra, New Balance’s Fabulous Framer Bra, Lululemon’s Stuff Your Bra II, Swoob’s Idona Racerback Pocket Sports Bra and Zoot’s Women’s Run Moonlight Bra.
This is not the first instance of a patent holder accusing competitors of infringement over a sports bra; earlier this year, Sarvint Technologies claimed that one of Victoria’s Secret’s offerings infringed on a patent of its own. Further, at least one of the alleged infringers, Lululemon, finds itself on the other end of a familiar dispute. The high-end workout apparel company sued Calvin Klein and G-III Apparel in 2012 for violating a design patent on its yoga pants. Since then, it has accumulated a total of 31 patents on a variety of designs.
These recurring disputes should not come as a surprise: the women’s athletic apparel segment is growing fast (not to mention the frequency of runners toting their phones or other devices on runs), and companies are jockeying for position as they try to capture additional market share. With so many big players implicated by Blackbird’s claims, any court ruling could ripple throughout the entire industry. Whatever the result, this dispute is another in an increasing trend of “athleisure” brands looking to protect their sales via intellectual property rights.
Proskauer Rose LLP – L Robert Batterman, Michael Cardozo, Robert E Freeman, Howard L Ganz, Wayne D Katz and Joseph M Leccese