Tuesday, December 10, 2013

Design Patent Roundup - Second Half of November

The Thanksgiving holiday put a lot of schedules on hold, but not the schedules of design patent plaintiffs. In the latter half of November The Ordinary Observer has tracked nearly a dozen new design patent filings, involving major brands as parties, such as Lululemon, Ford and Rubbermaid. Some of the more interesting cases have nothing to do with these big names, however. These include one case filed by the Suffolk University Law School’s Intellectual Property Clinic in support of an inventors self-prosecuted patent, and another case filed on behalf of a pet care supply manufacturer who has now asserted this same design patent in half a dozen independent actions. There is a lot worth keeping an eye on in the design patent litigation world, after the jump.

Hanesbrands, Inc. v. Lululemon Athletic Canada Inc., 1:13-cv-01024 (M.D.N.C. Nov. 15, 2013)

On Friday, November 15, Hanesbrands filed for Declaratory Judgment against Lululemon Athletica, after Lululemon reportedly sent a letter to Hanesbrands and its customer, Target, accusing them of infringing U.S. Design Patent No. D,654,665. A figure from the D’665 Patent is shown below. Hanesbrands produces clothes under a variety of brands including, Hanes, Champion, Playtex, Bali, Maidenform, Flexees, JMS/Just My Size, barely there, Wonderbra and Gear for Sports. The complaint does not specify the products alleged to infringe.

Dexas Int’l, Ltd. V. Office Depot, Inc., 4:13-cv-00672 (E.D. Tex. Nov. 15, 2013)

On November 15, Daxas International filed a case in the Eastern District of Texas accusing Office Depot of infringing U.S. Design Patent No. D510,389 entitled “Document Case” and more specifically described as a design for a hard-shelled clipboard-style document case. Shown below are images drawn from the complaint of a perspective view for both the accused case and the patented design. Dexas is represented by Oake Law Office. The case has not been assigned to a judge.

OurPet’s Co. v. Arjan Impex, 1:13-cv-02550 (N.D. Ohio Nov. 18, 2013)

On November 18, OurPet’s Company file suit in the Northern District of Ohio against Arjan Impex, asserting a utility patent for Covered bowls such as pet food and water bowls and U.S. Design Patent No. D565,253 entitled “Pet feeder with non-skid lower surface.” An image of the patented bowl design is shown, below. OurPets is represented by Choken Welling. The case has been assigned to Judge Patricia A. Gaughan. 

This plaintiff appeared in a new case filing before while the Ordinary Observer was on break. The same patents were asserted. After some digging, we found the following other filings related to this patent:
  • OurPet’s Co. v. Wazir Chand Handicrafts, 1:13-cv-01701 (N.D. Ohio Aug. 6, 2013);
  • OurPet’s Co. v. Petedge, Inc., 1:13-cv-01018 (N.D. Ohio May 6, 2013);
  • OurPet’s Co. v. Petrageous Designs, 1:13-cv-00074 (N.D. Ohio Jan. 10, 2013);
  • OurPet’s Co. v. Bergan, LLC, 1:12-cv-02586 (N.D. Ohio Oct. 12, 2012); and
  • OurPet’s Co. v. Indipets, Inc., 1:09-cv-00409 (N.D. Ohio Feb. 23, 2009).
The cases against Wazir Chand and Arjan are still pending with the district court. The remaining cases have been resolved, generally by stipulated dismissal at a relatively early stage of the litigation. The exception is OurPet’s earliest suit against Indipets, Inc. In that case, a consent judgment was entered and the patents were judged valid and enforceable. The story of that case is more complex, but that may be a subject for another day. Suffice it to say, this is a plaintiff who has made the most of aggressively asserting their intellectual property rights, but it would be interesting to see OurPet’s encounter a defendant with the resources and inclination to mount a true challenge to this design patent.

We will keep an eye on OurPet’s. This is likely not the last time they will make an appearance on The Ordinary Observer’s roundup.

Rubbermaid Commercial Prods. LLC v. Trust Commercial Prods., 2:13-cv-02144 (D. Nev. Nov. 19, 2013)

On November 19, Rubbermaid Commercial Products sued two related defendants, TaiZhou Yinshan Brush Co. and Trust Commercial Products, alleging infringement of four design patents, U.S. Design Patent Nos. D474,570, D487,604, D618,418 and D618,419 directed to a variety of housekeeping and utility carts. Rubbermaid claims that the defendants were former suppliers, until Rubbermaid discovered that the defendants were selling alleged copy-cat products on the side; going so far as to copy the design of Rubbermaid’s product brochure for their own. An image drawn from the complaint, below, shows a figure from the D’570 Patent beside both the patentee’s cart and one of the accused products. Rubbermaid is represented by Cotton Driggs Walch Holley Woloson & Thompson as well as Squire Sanders. The case has been assigned to Judge Gloria M. Navarro and Magistrate judge George Foley, Jr.

Thule Organization Solutions, Inc. v. Mizco Int’l, Inc., 1:13-cv-03160 (D. Colo. Nov. 20, 2013)

On November 20th, Thule Organization Solutions sued Mizco International, a cell phone and gadget accessory manufacturer, for design patent infringement. Thule is asserting U.S. Design Patent No. D592,400, entitled Stretchable Notebook Computer Case. A figure drawn from the D’400 Patent and an image of an accused product are shown, below. Thule is represented by Sheridan Ross P.C. 

Volstar Techs., Inc. v. The Gillette Co., 1:13-c-v08429 (N.D. Ill. Nov. 21, 2013)

On November 15th, Volstar Technologies, owners of U.S. Design Patent No. D587,192, entitled “Electrical Charger,” filed suit against The Gillette Company over an allegedly infringing design for a mini-USB A/C charger. A comparison between a figure from the D’192 Patent and the allegedly infringing charger, as shown in the complaint, may be seen below. Volstar is represented by Schneider Rothman Intellectual Property Law Group and Takiguchi & Vogt. Defendants have not entered an appearance. 

Harvatek Corp. v. Nichia Am. Corp., 6:13-cv-00901 (E.D. Tex. Nov. 22, 2013)

On November 22, Harvatek filed its case in the Eastern District of Texas against Nichia Corp and Nichia America Corp, alleging infringement of three utility patents and one design patent, U.S. Design Patent No. D659,655, related to LEDs and LED housings. An image from the D’655 patent is shown side-by-side with an accused LED product, Nichia’s NNSW208C, below. Harvatek is represented by Ni Wang & Associates. Nichia has not entered an appearance. 

Reddy v. Lowe's Companies, Inc., 1:13-cv-13016 (D. Mass. Nov. 25, 2013)

An individual, Maureen Reddy, recently filed suit against Evolution Lighting, and Lowe’s Companies, regarding the alleged infringement of U.S. Design Patent No. D677,423, entitled “bathroom vanity light shade.” An image from the D’423 patent is shown below, beside an image of the accused Vanity Refresh Kit for sale by Evolution. Ms. Reddy is represented by Eve J. Brown from the Suffolk University Law School Intellectual Property Clinic. The Defendants have not entered an appearance. The case has been assigned to Judge William G. Young.

There is one additional note on this case. The design patent to Ms. Reddy appears to have been prosecuted pro se. The patent itself contains written description with an unusual amount of specificity regarding the materials and structure of the patented design, and the complaint devotes a substantial amount of space to describing the allegedly novel functional features of Ms. Reddy’s lamp shade system. This may be an indication that functionality and the scope of Ms. Reddy’s claim will be important issues later in this litigation. In any event, this will likely be a case worth following in the future.

Cole v. Trademark Games, Inc., 1:13-cv-08272 (S.D.N.Y. Nov. 20, 2013)

On November 20, Larry Cole and Mr. Cole’s exclusive licensee Integrated Merchandise Group International filed suit against Trademark Games and Wal-Mart Stores, alleging nine causes of action including false designation of packaging origin and product origin, and trade dress infringement, as well as infringement of U.S. Design Patent No. D492,533, entitled “Side Posture Pillow.” An image of the patented pillow design and an image believed to be the accused product are shown, below. Mr. Cole and Integrated Merchandise Group International are represented by Epstein Drangel. The case has been assigned to Judge P. Kevin Castel. 

Automotive Body Parts Ass’n v. Ford Global Techs., LLC., 4:13-cv-00705 (E.D. Tex. Nov. 25, 2013)

On November 25, Automotive Body Parts filed a complaint for declaratory judgment against Ford Global Technologies relating to five design patents, U.S. Design Patent Nos. D489,299, D489,657, D494,517, D496,890 and D501,685. Automotive’s arguments appear to focus on patent exhaustion and functionality. Given the nature of the design patents challenged, it also may not be surprising to see the scope of this case broaden as it develops. This case has not been assigned to a judge. Automotive is represented by Robert G. Oake, Jr. of Oake Law Offices, in this attorney’s second appearance in today’s roundup.

Answer, Dorman Prods., Inc. v. PACCAR, Inc., 2:13-cv-06383 (E.D. Pa. Nov. 14, 2013)

Additionally, a few weeks back we reported on a declaratory judgment action filed by Dorman Products against PACCAR, in a dispute related to automotive headlight designs. (Design Patent Roundup – Nov. 1). A comparison between the Doorman product and the alleged patented design from our original report is shown, below.

PACCAR has responded to the declaratory judgment complaint with an answer and counterclaims alleging infringement of the original patent as well as two additional design patents, U.S. Design Patent Nos. D525,731 and D526,429. Representative images from both design patents have been reproduced, below. PACCAR is represented by Caesar, Rivise, Bernstein, Cohen & Pokotilow, Ltd. and Christensen O’Connor Johnson Kindness PLLC. Dorman remains represented by Volpe and Koenig. 


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