DCT
2:17-cv-02725
2 Dogs Distribution LLC v. Cyberush Products Ltd
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: 2 Dogs Distribution, LLC (Delaware)
- Defendant: Cyberush Products Ltd. d/b/a Toogli (Manitoba, Canada)
- Plaintiff’s Counsel: Lewis Roca Rothgerber Christie LLP
- Case Identification: [2 Dogs Distribution, LLC](https://ai-lab.exparte.com/party/2-dogs-distribution-llc) v. Cyberush Products Ltd., 2:17-cv-02725, D. Ariz., 08/11/2017
- Venue Allegations: Venue is alleged based on Defendant’s sales of accused products into Arizona through its own website (toogli.com), other internet-based distributors like Amazon, and partnerships with U.S.-based fulfillment centers.
- Core Dispute: Plaintiff alleges that Defendant’s carabiner-style stroller hook infringes a design patent for a carabiner.
- Technical Context: The dispute concerns the ornamental design of large, consumer-grade carabiners marketed as accessories for strollers and shopping carts.
- Key Procedural History: The complaint alleges that Plaintiff, through counsel, sent a cease and desist letter to Defendant on July 14, 2017, providing express notice of the patent-in-suit approximately one month before filing the complaint.
Case Timeline
| Date | Event |
|---|---|
| 2006-XX-XX | Plaintiff's "Mommy Hook" product first sold commercially |
| 2008-01-18 | '583 Patent Priority Date |
| 2010-04-13 | '583 Patent Issue Date |
| 2017-07-14 | Plaintiff sends cease and desist letter to Defendant |
| 2017-08-11 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Design Patent No. D613,583 - "Carabiner"
- Patent Identification: U.S. Design Patent No. D613,583 (“the ’583 Patent”), "Carabiner," issued on April 13, 2010.
The Invention Explained
- Problem Addressed: As a design patent, the ’583 Patent does not articulate a technical problem but instead protects the novel, non-functional, ornamental appearance of an article of manufacture (Compl. ¶14; ’583 Patent, Claim). The complaint frames the context as providing an "innovative and stylish" product for consumers (Compl. ¶12).
- The Patented Solution: The patent claims "the ornamental design for a carabiner, as shown and described" (’583 Patent, Claim). The figures illustrate a carabiner with a distinct D-shape, characterized by a continuously curved spine and a straight, gated side. A prominent feature is a thick, padded grip that covers the majority of the curved spine, as depicted in Figures 1 and 2 (’583 Patent, Figs. 1-2).
- Technical Importance: The complaint alleges that the product's "unique design" is the basis for its commercial success and its reputation as a "high-quality, innovative and stylish product" (Compl. ¶12).
Key Claims at a Glance
- The complaint asserts infringement of the single claim of the ’583 Patent (Compl. ¶38).
- The claim protects the overall "ornamental design for a carabiner, as shown and described" in the patent's six figures (’583 Patent, Claim).
III. The Accused Instrumentality
Product Identification
- The accused product is the "Toogli XL Stroller Hook" (Compl. ¶25), also referred to as the "Infringing Product" (Compl. ¶19).
Functionality and Market Context
- The Toogli Stroller Hook is a large carabiner with a foam grip, marketed for use with strollers and shopping carts (Compl. ¶25). The complaint alleges the product is sold in the United States through Defendant's website, Amazon, and other online distributors (Compl. ¶4). The complaint provides a screenshot from an Amazon product page where Defendant compares its accused hook to a "Competing Brand's Stroller Hook," which has a visually distinct design, to market the accused product as advantageous (Compl. ¶25). This image, supplied by the plaintiff, shows the defendant's marketing of the accused design (Compl. ¶25).
IV. Analysis of Infringement Allegations
The central test for design patent infringement is whether an "ordinary observer," giving the level of attention a typical purchaser would, would be deceived into purchasing the accused product believing it to be the patented product. The complaint's allegations are presented through a side-by-side comparison.
A visual provided in the complaint shows the patented design next to the accused product (Compl. ¶24).
'583 Patent Infringement Allegations
| Claim Element (from Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| The ornamental design for a carabiner, as shown and described. | The complaint alleges that the accused Toogli Stroller Hook is "the same or substantially similar" to the patented design, thereby creating a nearly identical overall visual impression for an ordinary observer. | ¶19, ¶24, ¶38 | '583 Patent, Claim, Figs. 1-6 |
- Identified Points of Contention:
- Scope Questions: The primary legal and factual question will be whether the overall visual appearance of the accused Toogli Stroller Hook is substantially the same as the claimed design in the ’583 Patent.
- Technical Questions: The analysis may focus on the degree of visual similarity between the products' respective shapes, proportions, and the appearance of the foam grip. A question for the court will be whether any minor differences, such as the "toogli" branding printed on the accused product's foam grip, are sufficient to differentiate the designs in the mind of an ordinary observer, or if they are trivial in the context of the overall impression.
V. Key Claim Terms for Construction
Claim construction is generally not performed for design patents in the same manner as for utility patents. The claim is understood to be defined by the drawings, and courts typically avoid detailed verbal descriptions that might not capture the overall visual impression. The infringement analysis will likely proceed directly to a comparison of the accused product's design with the figures of the ’583 Patent from the perspective of an ordinary observer.
VI. Other Allegations
- Indirect Infringement: The complaint alleges induced infringement, asserting that Defendant designed the infringing product and "purposefully direct[ed], promot[ed], encourag[ed], and caus[ed] the manufacture, sale, advertisement for sale, use and/or importation" of the product by third-party distributors and retailers (Compl. ¶23, ¶44).
- Willful Infringement: Willfulness is alleged based on both constructive and actual knowledge. The complaint alleges Defendant "knew or should have known" of the patent due to its publication and the marking of Plaintiff's authentic product (Compl. ¶26). It further alleges actual knowledge based on a cease and desist letter sent by Plaintiff's counsel on July 14, 2017, after which Defendant allegedly continued its infringing activities (Compl. ¶27).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of visual comparison: From the perspective of an ordinary observer, is the overall ornamental design of the accused "Toogli Stroller Hook" substantially the same as the design claimed in the '583 Patent, such that the observer would be deceived into purchasing one believing it to be the other?
- A key evidentiary question will be the impact of surface branding: Does the "toogli" logo printed on the foam grip of the accused product create a sufficiently distinct visual impression to defeat a claim of infringement, or will a fact-finder conclude it is an insubstantial difference in the context of the otherwise similar product shapes?
- Regarding damages and willfulness, a central question will be one of intent: Can Plaintiff establish that Defendant's alleged infringement was egregious or represented a wanton disregard for Plaintiff's patent rights, particularly in light of the allegation that Defendant continued its conduct after receiving a cease and desist letter?