DCT

2:21-cv-08086

NG LLC v. Createdhair Designs LLC

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 2:21-cv-08086, C.D. Cal., 06/30/2022
  • Venue Allegations: Venue is alleged to be proper as both Defendants are California entities with their principal places of business within the Central District of California.
  • Core Dispute: Plaintiff alleges that Defendant’s "Wig SECURE Crystal" wig grip apparatus infringes two utility patents and one design patent related to devices for securing wigs.
  • Technical Context: The technology relates to wig accessories, specifically headbands designed to secure wigs to a wearer's head while remaining invisible under modern lace-front hairpieces.
  • Key Procedural History: The current filing is a First Amended Complaint. The complaint alleges Defendants had pre-suit knowledge of U.S. Patent No. 10,881,159 and its alleged infringement since at least July 25, 2021. U.S. Patent No. 10,881,159 is a continuation of the application that led to U.S. Patent No. 10,945,477.

Case Timeline

Date Event
2019-02-14 Priority Date for ’159 and ’477 Patents
2019-10-31 Priority Date for D’382 Patent
2020-03-24 U.S. Patent No. D879,382 Issued
2021-01-05 U.S. Patent No. 10,881,159 Issued
2021-03-16 U.S. Patent No. 10,945,477 Issued
2021-07-25 Alleged Date of First Notice of Infringement for ’159 Patent
2022-06-30 First Amended Complaint Filed

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

U.S. Patent No. 10,881,159, "Wig Grip Apparatus," Issued Jan. 5, 2021

  • The Invention Explained:
    • Problem Addressed: The patent's background section describes that conventional wig gripping devices, when worn under modern lace-foundation wigs, are often visible through the transparent foundation, which detracts from the natural appearance the wig is intended to create (ʼ159 Patent, col. 1:11-20).
    • The Patented Solution: The invention is a wig grip apparatus that combines traditional fabric securement members with a transparent mesh element. This mesh element is positioned at the front of the head, aligning with the wig's hairline or part, allowing the wearer's natural scalp to be visible through both the mesh and the wig's lace foundation, thereby enhancing the natural look while still providing security (ʼ159 Patent, col. 1:31-41, col. 2:60-65). The configuration is illustrated in figures such as FIG. 7, which shows the apparatus being positioned before a wig is applied over it (ʼ159 Patent, Fig. 7).
    • Technical Importance: The design aims to solve a specific aesthetic problem created by the combination of older wig grip technology and newer, transparent lace-front wig constructions (ʼ159 Patent, col. 2:52-65).
  • Key Claims at a Glance:
    • The complaint asserts independent claims 1 and 20 (Compl. ¶19). Independent claim 20 includes the following essential elements:
      • A first securement member made of velvet or velour with opposite inboard and outboard portions.
      • A second securement member made of velvet or velour with opposite inboard and outboard portions.
      • A transparent mesh element affixed between the inboard portions of the first and second securement members.
      • The outboard portions are in mutual engagement to secure the apparatus.
      • The members and mesh element collectively form a band to encircle a wearer's head.
      • The mesh element includes a forward periphery.
      • The entire apparatus terminates at the forward periphery.
    • The complaint reserves the right to assert additional claims (Compl. ¶28).

U.S. Patent No. D879,382, "Wig Grip," Issued Mar. 24, 2020

  • The Invention Explained:
    • The Patented Solution: As a design patent, the invention consists of the novel, non-obvious ornamental appearance of a "wig grip" article, as depicted in the patent's figures (D’382 Patent, Figs. 1-10). The design features include two elongated band portions with a repeating crisscross or diamond-like pattern, connected by a central, darker, textured rectangular segment, and terminating in wider fabric ends (D’382 Patent, Fig. 3, 9).
  • Key Claims at a Glance:
    • The single claim is for "The ornamental design for a wig grip, as shown and described" (D’382 Patent, Claim). The complaint asserts this claim (Compl. ¶22).

Multi-Patent Capsule

  • Patent Identification: U.S. Patent No. 10,945,477, "Wig Grip Apparatus," Issued Mar. 16, 2021
  • Technology Synopsis: This patent, a parent to the '159 Patent, claims a method of using a wig grip apparatus. The method involves providing a wig grip that has securement members and a transparent mesh element, securing that apparatus to a wearer's head, and then applying a hairpiece over it so the apparatus is disposed between the wearer's head and the hairpiece foundation ('477 Patent, Claim 1).
  • Asserted Claims: The complaint asserts at least independent claim 1 ('477 Patent, Claim 1; Compl. ¶28).
  • Accused Features: The complaint accuses Defendants of inducing infringement by marketing the "Wig SECURE Crystal" product with promotional materials and instructions that allegedly encourage end-users to perform the steps of the patented method (Compl. ¶29).

III. The Accused Instrumentality

  • Product Identification: The "Wig SECURE Crystal" branded product is the accused instrumentality (Compl. ¶16).
  • Functionality and Market Context: The product is described in marketing materials as a "Non-Slip Wig Silicone Grip Head Band With Anti-Slide Solution" designed to securely hold a wig in place without glues or clips (Compl. Ex. D, p. 47). The materials state it is made of "high quality breathable extremely breathable velour transparent silk front for lace top wigs" and features a "NON-SLIP Silicone GRIP STRIP" (Compl. Ex. D, p. 47). A key advertised feature is that it is "undetectable under any wig" (Compl. Ex. D, p. 47). The complaint alleges Defendants design, manufacture, import, and sell this product, including through online storefronts like Amazon (Compl. ¶16; Ex. D).

IV. Analysis of Infringement Allegations

U.S. Patent No. 10,881,159 Infringement Allegations

The complaint provides a detailed claim chart in its Exhibit E, which includes annotated photographs of the accused product. The image in Exhibit E shows the accused product worn on a mannequin head, with callouts identifying allegedly infringing elements (Compl. Ex. E, p. 52-55).

Claim Element (from Independent Claim 20) Alleged Infringing Functionality Complaint Citation Patent Citation
a first securement member comprised of a velvet or velour and having a first outboard portion and a first inboard portion disposed oppositely of one another; The accused device has a first band on one side of a central mesh, which is alleged to be a securement member made of velvet or velour. ¶19; Ex. E, p. 52 col. 4:17-18
a second securement member comprised of a velvet or velour and having a second outboard portion and a second inboard portion disposed oppositely of one another; The accused device has a second band on the opposite side of the central mesh, which is alleged to be a securement member made of velvet or velour. ¶19; Ex. E, p. 53 col. 4:21-25
a mesh element being transparent and affixed to the first inboard portion and the second inboard portion; The accused device has a central mesh element that is alleged to be transparent and is affixed to the inboard portions of the two side bands. ¶19; Ex. E, p. 53 col. 4:26-29
wherein the first outboard portion and second outboard portion are in mutual engagement for securing the wig grip apparatus around the head of the wearer; The ends of the accused device's bands wrap around the wearer's head and attach to each other. ¶19; Ex. E, p. 54 col. 4:30-33
(a) the first securement member, the second securement member and the mesh element collectively form a band configured to encircle a head of a wearer; The collective components of the accused device form a band that encircles the wearer's head. ¶19; Ex. E, p. 54 col. 4:35-38
(b) the mesh element includes a forward periphery extending from the first inboard portion to the second inboard portion; The mesh element of the accused device has a forward edge that extends between the two side bands. ¶19; Ex. E, p. 54 col. 4:39-42
(c) the wig grip apparatus terminates at the forward periphery. The accused apparatus, when worn, is alleged to terminate at the forward edge of the mesh element. ¶19; Ex. E, p. 55 col. 4:43-44

U.S. Patent No. D879,382 Infringement Allegations

The complaint does not provide a formal claim chart but includes Exhibit F, which presents a side-by-side visual comparison of a drawing from the D'382 Patent and photographs of the accused "Wig SECURE Crystal" product (Compl. Ex. F, p. 57). The complaint alleges that the accused product's ornamental design is substantially similar to the patented design, pointing to the same "X pattern and central mesh element between the first securement member and second securement member, and heavy stitched borders" (Compl. Ex. F, p. 58). This comparison forms the basis for the allegation that an ordinary observer would find the designs substantially the same (Compl. ¶22).

Identified Points of Contention

  • Scope Questions:
    • A primary question for the '159 Patent will be whether the accused product's materials, described in marketing as "velour transparent silk front" and a "Silicone GRIP STRIP," meet the claim limitation of a "transparent mesh element" comprised of "nylon mesh fabric" and securement members "comprised of velvet or velour" ('159 Patent, col. 4:17-18; col. 1:47-49).
    • The interpretation of "terminates at the forward periphery" in claim 20 of the '159 Patent will likely be disputed. The parties may contest whether this requires a perfectly flush edge or if it can be met even if some part of the securement member extends slightly forward of the mesh element's front edge.
  • Technical Questions:
    • For the D'382 Patent, the dispute will center on the "ordinary observer" test. The question will be whether alleged differences in the pattern, texture, or proportions between the accused product and the patent drawings are significant enough to avoid infringement.

V. Key Claim Terms for Construction

  • The Term: "mesh element" ('159 Patent, Claim 20)

    • Context and Importance: This term is the central feature of the invention, intended to provide transparency. Its construction will determine whether the "transparent silk front" of the accused product falls within the claim scope.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: The specification defines "transparent" functionally as a material "capable of transmitting light therethrough so that bodies and surfaces lying beneath can be clearly seen" ('159 Patent, col. 1:34-37). This functional language may support a construction that is not limited to a specific material type.
      • Evidence for a Narrower Interpretation: The specification also provides specific examples, stating that in preferred embodiments, the mesh is "comprised of a nylon mesh fabric, such as a hexagonal nylon mesh fabric" ('159 Patent, col. 1:47-49). A defendant may argue this language limits the scope to open-weave mesh fabrics, rather than a material like "silk."

  • The Term: "terminates at the forward periphery" ('159 Patent, Claim 20)

    • Context and Importance: This limitation defines the front-edge structure of the entire apparatus. The physical configuration of the accused product's front edge relative to this claim language will be a critical infringement question.
    • Intrinsic Evidence for Interpretation:
      • Evidence for a Broader Interpretation: A plaintiff might argue that this term should be interpreted from the perspective of the apparatus's function and appearance on a user, meaning the functional and visual edge is the front of the mesh.
      • Evidence for a Narrower Interpretation: The patent figures, particularly Figure 1, show the "forward edge (126)" of the securement members and the "forward periphery (132)" of the mesh element are in alignment ('159 Patent, Fig. 1). This may support a narrower construction requiring a structurally flush or co-linear front boundary.

VI. Other Allegations

  • Indirect Infringement: The complaint alleges Defendants induce infringement of the '477 method patent. This allegation is based on Defendants' marketing, promotional materials, and product literature (including webpages and videos) which are alleged to "instruct, encourage, enable, and facilitate" the use of the accused product in an infringing manner with specific intent (Compl. ¶29).
  • Willful Infringement: Willfulness is alleged for all patents-in-suit. For the '159 Patent, the allegation is based on alleged pre-suit notice of infringement dating back to at least July 25, 2021 (Compl. ¶17). For all patents, willfulness is also based on Defendants' alleged continued infringement after receiving notice of the lawsuit via the initial complaint (Compl. ¶18, 23, 31).

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

  • A core issue will be one of claim scope and factual correspondence: Does the accused product's combination of "velour," "transparent silk," and a "silicone grip strip" meet the '159 Patent’s claim requirements for a "transparent mesh element" and securement members "comprised of velvet or velour"?
  • A second central question will be one of design patent infringement: Applying the ordinary observer test, is the overall ornamental appearance of the "Wig SECURE Crystal" product substantially the same as the specific design claimed in the D'382 patent, or are there sufficient visual differences to distinguish them?
  • Finally, a key evidentiary question for the '477 method patent will be one of intent for induced infringement: Does the evidence from Defendants' marketing and instructional materials demonstrate a specific intent to encourage customers to perform every step of the claimed method of using the wig grip apparatus?