Covves LLC v. BigMouth Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Covves, LLC (California)
  • Defendant: BIGMOUTH INC., et al. (Indiana)
  • Plaintiff’s Counsel: THE MCARTHUR LAW FIRM, PC
• Case Identification: 2:18-cv-08518, C.D. Cal., 10/03/2018
• Venue Allegations: Venue is asserted in the Central District of California based on Defendants allegedly directing infringing sales into the district, conducting substantial business there, and Plaintiff’s principal place of business being located within the district.
• Core Dispute: Plaintiff alleges that Defendants’ inflatable unicorn-themed pool floats and beverage holders infringe two of its design patents covering the ornamental appearance of such products.
• Technical Context: The dispute is in the novelty consumer goods sector, specifically concerning the ornamental design of recreational inflatable toys, a market where distinctive aesthetics can be a primary driver of commercial success.
• Key Procedural History: The complaint alleges that Plaintiff provided Defendant BigMouth with actual notice of the patents-in-suit via pre-suit correspondence on or before March 22, 2018. The complaint further alleges that Defendant BigMouth began selling the accused products after the patents had issued and, in some cases, after receiving this notice. Plaintiff also notes a history of licensing the patented designs to third parties.

Case Timeline

Date	Event
2015-08-24	D'617 and D'370 Patents Priority Date
2016-08-17	Alleged first appearance of Plaintiff's mini cupholder product
2016-11-08	D'370 Patent Application Filing Date
2017-04-11	D'370 Patent Issue Date
2017-05-23	D'617 Patent Issue Date
2017-11-26	Date of archive showing no accused products on Defendant’s website
2018-03-12	Accused beverage boat allegedly appears on Defendant's Instagram
2018-03-22	Alleged date of Defendant's actual knowledge of patents-in-suit
2018-04-09	Accused pool floats allegedly appear on Defendant's Instagram
2018-10-03	Complaint Filing Date

II. Technology and Patent(s)-in-Suit Analysis

U.S. Design Patent No. D787,617, “Inflatable Toy” (Issued May 23, 2017)

The Invention Explained

• Problem Addressed: The complaint alleges that "Adult-sized unicorn floats... did not exist before Covves invented and popularized them" (Compl. ¶22). The patent addresses the need for a new and original ornamental design in this product category.
• The Patented Solution: The patent claims the specific ornamental design for an "inflatable toy" (D'617 Patent, Claim). The design is defined by the visual characteristics of the elements shown in solid lines in the patent's figures (D'617 Patent, FIG. 1, 6). Crucially, the patent specification states that "The broken lines shown in the drawings illustrate portions of the inflatable toy that form no part of the claimed design" (D'617 Patent, Description). This means the claimed design consists only of the stylized unicorn head, neck, and tail assembly; the large, oval-shaped raft body is explicitly disclaimed from the patent's scope.
• Technical Importance: The complaint asserts that the unicorn pool float design became "one of the most popular inflatable pool toys of 2016 and 2017," suggesting the design had significant aesthetic and commercial appeal (Compl. ¶20).

Key Claims at a Glance

• The single claim is for "The ornamental design for an inflatable toy, as shown and described" (D'617 Patent, Claim).
• The essential ornamental elements of the claimed design include:
  • The specific shape and proportions of a stylized unicorn head, featuring a horn, ears, and flowing mane.
  • The curvature and configuration of an elongated neck.
  • The specific shape and configuration of a stylized tail.

U.S. Design Patent No. D783,370, “Inflatable Beverage Holder” (Issued April 11, 2017)

The Invention Explained

• Problem Addressed: The complaint suggests a lack of similar designs in the market, stating that "mini cupholder unicorn floats did not exist before Covves invented and popularized them" (Compl. ¶22).
• The Patented Solution: The patent claims the ornamental design for an inflatable beverage holder shaped like a miniature unicorn (D'370 Patent, Claim). Unlike the ’617 Patent, the drawings in the D'370 Patent consist entirely of solid lines, meaning all depicted features are part of the claimed design (D'370 Patent, FIGS. 1-6). The design is characterized by a ring-shaped body with a central void for a container, a forward-projecting unicorn head and neck, and a rear tail.
• Technical Importance: Plaintiff alleges it sells a "popular Mini Unicorn Cup Holder with a unique design protected by the D'370 patent," indicating the design's perceived value and market recognition (Compl. ¶21).

Key Claims at a Glance

• The single claim is for "The ornamental design for an inflatable beverage holder, as shown" (D'370 Patent, Claim).
• The essential ornamental elements of the claimed design include the overall visual appearance of the article, comprising:
  • A rounded, ring-like inflatable body with a central opening.
  • A stylized unicorn head, neck, horn, and mane assembly affixed to the front of the body.
  • A stylized tail assembly affixed to the rear of the body.

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are Defendant BigMouth’s "BigMouth Unicorn Floats" (including "Giant Unicorn Pool Float," "Giant Sparkly Unicorn Pool Float," and "Sparkles The Unicorn Lil' Float") and "Unicorn Beverage Boats" (Compl. ¶¶27, 32).

Functionality and Market Context

• The accused products are recreational inflatable water toys: a large float designed to support a person and a small float designed to hold a beverage container (Compl. ¶¶27, 32). The complaint positions the accused products as "imitation" versions created to "capitalize on Covves' hard work, intellectual property, and success" (Compl. ¶27), suggesting they compete directly in the same niche market for novelty pool accessories.

IV. Analysis of Infringement Allegations

The complaint references a claim chart attached as Exhibit 3, which was not included in the provided court filing (Compl. ¶36). The infringement theory is therefore summarized below based on the complaint's narrative allegations and visual evidence.

The complaint asserts that the accused products infringe under the "ordinary observer" test, alleging that the resemblance between the patented designs and the accused products is "substantially the same" and sufficient to deceive a purchaser (Compl. ¶37).

D'617 Patent Allegations:
The infringement theory focuses on the ornamental features of the accused "BigMouth Unicorn Floats." The complaint alleges that the accused floats copy the patented design's key features, including an elongated neck, a head with a horn and pointed ears, a mane that begins behind the horn, and a tail affixed to the rear (Compl. ¶30). To illustrate this, the complaint provides a side-by-side comparison of a patent figure and a photograph of an accused product (Compl. ¶29, FIG. 1). This visual juxtaposes the claimed design elements with the corresponding features on the accused product. A second image shows Plaintiff's and Defendant's commercial products side-by-side in a pool (Compl. ¶31).

D'370 Patent Allegations:
The infringement allegations against the "Unicorn Beverage Boats" also rely on a direct comparison of the overall appearance. The complaint asserts that the accused products copy the patented design's combination of a rounded body with a central opening, an elongated neck, a head with a horn and mane, a specific eye design ("a black circle, containing a smaller white circle"), and a rear-affixed tail (Compl. ¶34). The complaint provides a visual comparison of a figure from the D'370 Patent next to a photo of the accused beverage holder to demonstrate the alleged similarities (Compl. ¶33, FIG. 1). A further image compares the commercial embodiments of the parties' respective products (Compl. ¶35).

V. Key Claim Terms for Construction

In design patent cases, claim construction focuses on the scope of the claimed design as depicted in the drawings rather than on textual terms.

D'787,617 Patent: Scope of “as shown” (Effect of Broken Lines)

• The Issue: The central construction issue for the ’617 Patent is the legal effect of the broken lines used to depict the large, oval-shaped body of the inflatable toy.
• Context and Importance: The determination of whether the unclaimed body can be considered when assessing the design's overall appearance is critical. Infringement may turn on whether the "ordinary observer" comparison is strictly confined to the claimed head and tail elements, or if the unclaimed body, which provides context, can be factored into the analysis.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Narrower Scope (Focus on Solid Lines): The specification provides an explicit instruction: "The broken lines shown in the drawings illustrate portions of the inflatable toy that form no part of the claimed design" (D'617 Patent, Description). This language provides strong support for an interpretation that the infringement analysis must be limited to a comparison of the head, neck, and tail elements shown in solid lines.
  • Evidence for a Broader Scope (Considering Context): A party could argue that while the broken-line body is not part of the claim, it informs the overall visual impression by showing the environment and placement of the claimed elements. This could be used to argue that the claimed design, when viewed in its intended context, is not substantially similar to the accused product's design.

D'783,370 Patent: Scope of “as shown” (Overall Appearance)

• The Issue: For the ’370 Patent, where all features are claimed in solid lines, the primary issue is not one of disclaimed subject matter but of the level of similarity required for a finding of infringement.
• Context and Importance: The dispute will likely focus on whether the overall visual impression created by the accused "Unicorn Beverage Boats" is "substantially the same" as the patented design, or if minor differences in proportion, curvature, and specific features are sufficient to differentiate them in the eye of an ordinary observer.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: Plaintiff may argue that the identity of the core concept—a miniature, unicorn-shaped, ring-style beverage holder—combined with the high degree of similarity in the arrangement and shape of the primary features (head, body, tail) as shown in figures like FIG. 1 and FIG. 3 of the D'370 Patent, renders the designs substantially similar.
  • Evidence for a Narrower Interpretation: A defendant may focus on subtle differences between its product and the patent drawings, such as the precise curvature of the mane, the angle of the horn, or the shape of the tail, arguing these distinctions would be apparent to an ordinary observer and prevent a finding of substantial similarity.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Defendant BigMouth actively induced infringement by the "Retailer Defendants" by supplying them with products that embody the patented designs for resale to consumers (Compl. ¶¶55, 61).
• Willful Infringement: The complaint alleges willful infringement against BigMouth, contending that BigMouth had actual knowledge of the patents-in-suit as of March 22, 2018, based on pre-suit enforcement discussions (Compl. ¶¶40, 43). The willfulness claim is further supported by allegations that BigMouth began selling the accused products after the patents had issued and continued to sell them even after receiving notice of infringement (Compl. ¶¶45, 49).

VII. Analyst’s Conclusion: Key Questions for the Case

1. A core issue will be one of claim scope: For the D'617 patent, how will the court treat the large inflatable body shown in broken lines? The case may turn on whether the infringement analysis is strictly confined to the claimed head and tail elements, or if the unclaimed body can be considered as part of the overall visual context for the "ordinary observer" test.
2. A key evidentiary question will be one of visual similarity: For both patents, are the accused products "substantially the same" as the patented designs? This will require a granular comparison of the shapes, proportions, and overall aesthetic impression of the products versus the patent drawings, moving beyond the general theme of a "unicorn float."
3. A central question for damages will be willfulness: Given the allegations that Defendant BigMouth received pre-suit notice of the patents and subsequently launched or continued selling the accused products, the court will need to determine whether this conduct was deliberate or reckless, which could expose Defendant to enhanced damages.