“Lululemon Dupe”: How a Canadian Company Used its European Trademark Registration to Secure U.S. Trademark Rights
“LULULEMON DUPE”: HOW A CANADIAN COMPANY USED ITS EUROPEAN TRADEMARK REGISTRATION TO SECURE U.S. TRADEMARK RIGHTS
Written by Branden Surgnier
Introduction.
Lululemon. The brand name is highly recognizable globally and instantly evokes images of high-quality athleisure wear donned by yogis, marathon runners, weightlifters, and remote workers alike. With such widespread and successful brand recognition comes a predictable, yet increasingly pervasive, problem: parties seeking to capitalize on Lululemon’s reputation and goodwill by offering more affordable alternatives.
In June 2025, Lululemon filed a lawsuit against Costco alleging trademark infringement for selling “dupes” of their clothing, including jackets, sweatshirts, and pants.[1] Dupes, short for duplicates, are confusingly similar replicas of name-brand products that are typically sold at more affordable prices than the products they are miming.[2] In their Complaint, Lululemon asserts that Costco traded on their reputation and goodwill, creating an improper association with Lululemon’s goods and ultimately confusing consumers as to the source of the goods themselves.[3] The Complaint alleges 12 causes of action, namely within the categories of trade dress infringement, trademark infringement, unfair competition, and design patent infringement.[4] Lululemon is also seeking a permanent injunction to prevent Costco from manufacturing, advertising, and selling these “dupe” products as well as damages to recover lost profits due to Costco’s sale of these products.[5]
In a creative defensive measure to combat the proliferation of “dupe” culture, and in tandem with this lawsuit, Lululemon applied under Section 44(e) to register the trademark “LULULEMON DUPE.”[6] And on October 21, 2025, the United States Patent and Trademark Office (“USPTO”) granted Lululemon the registration on the Principal Register.[7]
Lululemon’s Suit Against Costco.
Lululemon’s suit against Costco illuminates a recurring challenge in the fashion industry: the presentation and sale of affordable look-alike alternatives to name-brand goods in the marketplace.[8] Lululemon claims that Costco’s “dupes” are ultimately confusing consumers, but when these alternatives are being held out as alternatives to the name-brand item they are mimicking, are consumers truly confused?
Since 1998, Lululemon has designed, marketed, and sold athleisure apparel under distinctive trademarks and trade dress, including DEFINE jackets, SCUBA hoodies and sweatshirts, ABC pants, and TIDEWATER TEAL products.[9] In their Complaint, Lululemon alleges that Costco has infringed on each of these through their selling of confusingly similar duplicates:
- Federal and state trade dress and trademark infringement.
Lululemon alleges §1114(1)(a) and §1125(a) violations of the Lanham Act, asserting that Costco’s goods incorporate confusingly similar elements of its DEFINE trade dress, SCUBA mark and trade dress, ABC trade dress, and TIDEWATER TEAL trade dress.[10] §1114(1)(a) establishes liability for trademark infringement for federally registered marks, stating that any person who, without the consent of the registrant, uses a reproduction, counterfeit, copy, or colorable imitation of a registered mark in commerce is liable in a civil action if such use is likely to cause consumer confusion.[11] Additionally, Lululemon alleges parallel state-law infringement claims for trademark and trade dress infringement under California common law.[12]
Lululemon owns the DEFINE trade dress federal registration for jackets, common law SCUBA trade dress rights and federal trademark registration for hoodies and sweatshirts, common law ABC trade dress rights for pants, and common law trade dress rights for its TIDEWATER TEAL products.[13] Lululemon claims that Costco’s unauthorized use of the DEFINE trade dress constitutes willful trademark infringement in violation of the Lanham Act, causing consumer confusion as to the source or affiliation of Costco’s goods with Lululemon’s products and leading to irreparable harm to their business and goodwill.[14]
EXAMPLE OF LULULEMON DEFINE PRODUCT AND COSTCO DUPE:
Lululemon also claims that Costco willfully sold goods confusingly similar to their registered SCUBA trade dress, violating the Lanham Act and likely causing consumers to believe that Costco’s duplicate goods are somehow affiliated with Lululemon’s SCUBA line of goods.[15]
EXAMPLE OF LULULEMON SCUBA PRODUCT AND COSTCO DUPE:
Additionally, Lululemon alleges that Costco offered for sale certain goods embodying its ABC trade dress and earned secondary meaning of that trade dress, causing likelihood of confusion as to the source or sponsorship by Lululemon of Costco’s “dupe” pants products:[16]
EXAMPLE OF LULULEMON ABC PRODUCT AND COSTCO DUPE:
Lululemon ABC Costco Dupes
Lululemon’s TIDEWATER TEAL mark, in use since at least 2019, is widely recognized as a symbol of their high-quality products.[17] Lululemon’s extensive marketing and promotion of the TIDEWATER TEAL mark has acquired distinctiveness, leading the public to instantly recognize the mark as identifying products that originate from Lululemon.[18] Lululemon claims that Costco sold goods confusingly similar to their TIDEWATER TEAL mark, including using the phrase “Tidewater Teal” to sell the products, resulting in consumer confusion as to the source of the products.[19]
- False designation of origin, passing off, & federal and state unfair competition.
In addition to its §1114(1)(a) allegations, Lululemon also claims that Costco’s sale of look‑alike goods constitutes unfair competition and false designation of origin arising under §1125(a) of the Lanham Act.[20] §1125(a) refers to elements of unfair competition resulting in consumer confusion as to the source or affiliation with goods and services, and provides a cause of against anyone who uses a false or misleading description or representation of fact in commerce that is likely to cause harm to a commercial interest.[21]
Here, Lululemon claims that Costco misled the public when using confusingly similar designations and product names that trade on Lululemon’s branding without consent, which misrepresented the nature of the products and misled the public as to the source of the goods.[22] Lululemon contends that the misleading nature of Costco’s actions were willful and that Costco intended to “pass off” its goods for those that originated from Lululemon.[23] In effect, the misrepresentation created unfair competition that harmed business competition and ultimately consumers.
- Design patent infringement.
Lululemon’s twelfth and final allegation in the Complaint involves Lululemon’s patents for its SCUBA hoodies (Patent Nos. D989442 and D1035219).[24] Lululemon specifically alleges that Costco willfully and intentionally infringed on their SCUBA patents by “making, using, selling, offering for sale, and/or importing products” and claiming that “an ordinary observer . . . would perceive the design of the Infringing Products to be at least substantially the same as the designs of the [Lululemon] Patents because the resemblance is such as to deceive such an observer inducing them to purchase one supposing it to be the other.”[25]
Due to Costco’s willful and deliberate use of their patented products, Lululemon claims to have suffered significant harm that entitle them to recover “all gains and profits and other commercial advantages unlawfully obtained by [Costco].”[26]
Foreign Trademark Registrations in the U.S.
To combat potential unauthorized uses of a patented products or registered trademarks, what courses of action do brands have? Typically, brands reply with litigation when infringement occurs. Lululemon did exactly that in its suit against Costco. However, it also implemented a complementary and novel trademark strategy.
In an effort to safeguard its brand, Lululemon innovatively filed a trademark application and obtained a U.S. federal trademark registration for “LULULEMON DUPE.”[27] Section 44(e) provided the basis of the filing, which offers a pathway for owners of foreign trademark registrations to obtain a corresponding registration in the U.S. But what does this mean and how does this work?
Use-Based vs. First-to-File Trademark Systems.
The U.S. operates under a use-based trademark system, meaning trademark rights arise from the actual use of a mark in commerce.[28] The Lanham Act specifies that only marks used “in commerce” can be the subject of federal trademark rights.[29] Priority goes to the party who first uses the mark in connection with goods or services in the marketplace, not the party who first files an application.[30] Filing an application strengthens a party’s rights, but it does not create priority without use.[31] By contrast, most other jurisdictions follow a “first-to-file” trademark system in which trademark rights originate from the act of filing an application.[32] Priority is awarded to whomever files the trademark application first; actual use is not required to obtain a registration.[33]
How Section 44(e) Bridges These Two Systems.
Section 44(e) of the Lanham Act helps to reconcile these differences by allowing eligible foreign applicants to rely on their country-of-origin registrations without needing to show use of the mark in U.S. commerce.[34] Eligible foreign applicants, as defined in Section 44(b), means “any person whose country of origin is a member to any convention or treaty relating to trademarks . . . to which the U.S. is also a party.”[35] Section 44(e) allows trademark owners from foreign countries to secure a U.S. trademark registration without immediately demonstrating use of the mark in U.S. commerce.[36] Instead, the foreign registration itself serves as the basis for issuing the U.S. registration. But, Section 44(e) does not eliminate the use requirement altogether. To retain an active U.S. trademark registration, the foreign registrant must eventually show use in U.S. commerce in subsequent post-registration filings.[37] In effect, Section 44(e) exists to harmonize the U.S. use-based trademark practice with the “first-to-file” approach of other jurisdictions, since many foreign registrants in first-to-file countries often do not have use as a requirement for registration.[38]
How Does This Apply to Lululemon’s Registration?
Here, Lululemon filed a trademark application with the USPTO, basing the application on its existing foreign registration of “LULULEMON DUPE” in Benelux,[39] a politico-economic alliance comprising the countries of Belgium, the Netherlands, and Luxembourg.[40] The Benelux Office for Intellectual Property covers Belgium, the Netherlands, and Luxembourg, all of whom are parties to conventions or treaties relating to trademarks to which the U.S. is also a party. Because the “LULULEMON DUPE” trademark was already a registered mark in another jurisdiction, and because that jurisdiction is a common member to such treaties and conventions, Lululemon was eligible to file an application in the U.S. under Section 44(e) without needing to show its use in U.S. commerce. Now, Lululemon holds a U.S. federal trademark registration for “LULULEMON DUPE,” although eventually it will need to show use in later maintenance filings to keep the registration active.[41]
Speculation for How Lululemon Will Use “LULULEMON DUPE.”
As of now, we can only speculate as to how Lululemon will eventually use “LULULEMON DUPE” in U.S. commerce. How Lululemon will ultimately use the mark remains an open question, but a few possibilities could potentially satisfy the Lanham Act’s use requirement:
- Licensing the mark to retailers.
Lululemon could license “LULULEMON DUPE” to third-party sellers, such as Costco or other retailers, for use on duplicate products. This would be an efficient option considering the market currently exists.
- Acquiring or rebranding existing dupe lines.
Instead of licensing, Lululemon could purchase popular “dupe” product lines and rebrand under “LULULEMON DUPE.” This strategy would enable Lululemon to convert existing consumer interest in duplicate products into a level of control over its brand-name products and possible derivatives.
- Launching its own lower-priced line.
Lululemon could introduce a separate product line marketed under the “LULULEMON DUPE” brand, offering simplified or lower-cost versions of existing styles. This would allow Lululemon to enter the “dupe” market by directly selling products emblazoned with “LULULEMON DUPE.”
Ultimately, until Lululemon commits to a commercial use strategy for the mark, any prediction remains speculative. What is clear is that Lululemon has numerous avenues available to establish use in commerce if it chooses to leverage the registration in a meaningful way.
Implications.
Beyond the question of how Lululemon will ultimately use the mark, the registration itself carries broader implications for trademark law and dupe culture. In effect, Lululemon securing this trademark prevents others from using the phrase “lululemon dupe” in their marketing and promotion efforts to attract attention to alternative products. But Lululemon’s “LULULEMON DUPE” trademark registration raises important questions about how brands can and should respond to “dupe” culture while also expanding the boundary lines for how competitors, influencers, and retailers can market “dupes” of Lululemon products.
One key implication concerns how brands may use trademarks to shape conversations around their own products. By registering “LULULEMON DUPE,” Lululemon has strengthened its claim over the commercial use of a term that consumers commonly use in product reviews and social media content. Although this registration does not give Lululemon a monopoly over the term or prevent descriptive or nominative fair use references, the registration does allow Lululemon to stop others from using “LULULEMON DUPE” as a source identifier and from capitalizing on their brand’s global recognition and reputation. This strategy signals a willingness to regulate certain permissible descriptive uses that may cross the line into commercial promotion. Other brands may take notice and consider similar strategies to prevent the misappropriation of their goodwill and to reduce commercial use of “dupe” products, including Aritzia’s consideration of an “ARITZIA DUPE” trademark.[42]
If other brands begin to follow suit, another implication is the proliferation of brands seeking to preemptively register “dupe” trademarks or other terms associated with imitating goods. The USPTO may face an influx of application from brands seeking to register colloquial terms, terms that companies and consumers use in their everyday course of business. This strategy could create pressure on the USPTO to draw clearer lines between what is descriptive and what is source-identifying, especially when a certain term has a certain meaning a particular industry.
And what effect would this have on influencers and retailers who use the word “dupe” in product listings and promotional content? In their lawsuit and subsequent U.S. registration of “LULULEMON DUPE,” Lululemon sought to eliminate consumer confusion and to prevent commercial association and perceived endorsement with other brands. Over time, especially with any increase in trademark applications, this could create tension between trademark enforcement and the level of transparency consumers expect from product comparisons.
Lululemon’s strategy raises the broader policy question of how trademark law should adapt to fast-moving industry trends. If brands increasingly register trending terms to regulate the marketing and sale of certain products, such as “dupes,” the USPTO may need to revisit how they balance trademark rights with free expression.
Conclusion.
Lululemon’s strategy illustrates how the intersection of “dupe” culture and trademark law continues to evolve and how brands can combine litigation, trademark rights, and creative registration approaches to protect their identity in an increasingly duped-up marketplace. By pursuing claims against Costco while simultaneously obtaining a federal registration for “LULULEMON DUPE,” Lululemon has asserted control over a pervasive trend in consumer culture.
As “dupe” culture persists, the boundaries of what trademarks can or should protect will face new pressures. Whether other companies follow Lululemon’s lead, or whether the USPTO and courts start to analyze these types of registrations more closely, remains to be seen. What is clear is that Lululemon’s actions illustrate the creative defensive strategies available to brand owners who wish to safeguard their identity in the marketplace.
[1] See Complaint, Lululemon Athletica Canada Inc. v. Costco Wholesale Corp., No. 2:25-cv-05864 (C.D. Cal. filed June 27, 2025).
[2] Susan Scafidi, Prof. Susan Scafidi Calls Lululemon’s Secured Trademark Phrase a “Very Creative Enforcement” Technique, Fordham Law News, (Oct. 26, 2025), https://news.law.fordham.edu/blog/2025/10/26/cbc-radio-canada-prof-susan-scafidi-lululemon-dupes-trademark.
[3] Compl. at 2-3.
[4] Id. at 28-46.
[5] Id. at 46-48.
[6] LULULEMON DUPE, Trademark Registration No. 7990938 (issued Oct. 21, 2025).
[7] LULULEMON DUPE, Trademark Registration No. 7990938 (issued Oct. 21, 2025).
[8] The Dupe Culture: Legal, Ethical, and Fashion Industry Implications, Accelerate IP, (Oct. 8, 2025), https://accelerateip.com/the-dupe-culture-legal-ethical-and-fashion-industry-implications.
[9] Compl. at 5.
[10] Id. at 28-46.
[11] 15 U.S.C. § 1114(1)(a).
[12] Compl. at 40-41.
[13] See Compl.
[14] Id. at 29.
[15] Id.
[16] Id. at 26, 35-36.
[17] Id. at 15.
[18] Id. at 16, 37.
[19] Id. at 37.
[20] Id. at 38.
[21] 15 U.S.C. § 1125(a).
[22] Compl. at 38.
[23] Id. at 38-40.
[24] Id. at 43.
[25] Id.
[26] Id. at 46.
[27] LULULEMON DUPE, Trademark Registration No. 7990938 (issued Oct. 21, 2025).
[28] Graeme B. Dinwoodie & Mark D. Janis, Trademarks and Unfair Competition, Law and Policy, at 265, (Aspen Publishing, 6th ed. 2022).
[29] Id.; 15 U.S.C. § 1125(a).
[30] Tulio Mahaseth, First-to-use versus first-to-file trademark regimes, Red Points, (April 2, 2024), https://www.redpoints.com/blog/first-to-use-vs-first-to-file-trademark.
[31] Tulio Mahaseth, First-to-use versus first-to-file trademark regimes, Red Points, (April 2, 2024), https://www.redpoints.com/blog/first-to-use-vs-first-to-file-trademark.
[32] Tulio Mahaseth, First-to-use versus first-to-file trademark regimes, Red Points, (April 2, 2024), https://www.redpoints.com/blog/first-to-use-vs-first-to-file-trademark.
[33] Tulio Mahaseth, First-to-use versus first-to-file trademark regimes, Red Points, (April 2, 2024), https://www.redpoints.com/blog/first-to-use-vs-first-to-file-trademark.
[34] 15 U.S.C. § 1126(e).
[35] 15 U.S.C. § 1126(b).
[36] 15 U.S.C. § 1126(e).
[37] Id.
[38] Tulio Mahaseth, First-to-use versus first-to-file trademark regimes, Red Points, (April 2, 2024), https://www.redpoints.com/blog/first-to-use-vs-first-to-file-trademark.
[39] LULULEMON DUPE, Benelux Trademark No. 1515460, https://www.boip.int/en/trademarks-register?app=%2Fitem%2Fbx1515460&query=lululemon+dupe.
[40] About BOIP, Benelux Office for Intellectual Property, (last visited Dec. 12, 2025), https://www.boip.int/en/entrepreneurs/about-boip.
[41] 15 U.S.C. § 1126(e).
[42] ARITZIA DUPE, U.S. Trademark Application Serial No. 99077257 (filed Mar. 11, 2025).