DCT
3:25-cv-09604
Pacific Market Intl LLC v. Five Below Inc
Key Events
Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Pacific Market International, LLC (Washington) and PMI WW Brands, LLC (Delaware)
- Defendant: Five Below, Inc. (Pennsylvania)
- Plaintiff’s Counsel: Perkins Coie LLP
- Case Identification: 3:25-cv-09604, N.D. Cal., 11/06/2025
- Venue Allegations: Venue is asserted on the basis that Defendant conducts business in the district through physical storefronts and online retail, has regular and established places of business in the district, and that a substantial part of the alleged infringing acts occurred there.
- Core Dispute: Plaintiff alleges that Defendant’s line of beverage tumblers infringes two of its design patents, in addition to trade dress and trademark infringement and related state law claims.
- Technical Context: The dispute centers on the ornamental design of insulated beverage tumblers, a product category with significant consumer recognition and market value.
- Key Procedural History: The complaint alleges that Plaintiff sent a detailed demand letter to Defendant in October 2024, identifying its patent and trademark rights. This pre-suit notice forms the primary basis for the allegation of willful infringement.
Case Timeline
| Date | Event |
|---|---|
| 2016-06-06 | U.S. Patent No. D805,838 Priority Date |
| 2017-12-26 | U.S. Patent No. D805,838 Issued |
| 2020-09-18 | U.S. Patent No. D955,173 Priority Date |
| 2022-06-21 | U.S. Patent No. D955,173 Issued |
| Early 2024 | Alleged Launch of Accused Products |
| 2024-10-31 | Defendant Allegedly Acquired Knowledge of Patents via Demand Letter |
| 2025-11-06 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Design Patent No. D805,838 - "Beverage Container"
- Patent Identification: U.S. Design Patent No. D805,838, entitled "Beverage Container," issued December 26, 2017. (Compl. ¶23).
The Invention Explained
- Problem Addressed: Design patents protect ornamental appearance rather than functional solutions. The patent addresses the need for a new, original, and ornamental design for a beverage container.
- The Patented Solution: The patent claims the specific ornamental design for a beverage container as depicted in its figures (D’838 Patent, Claim; DESCRIPTION). A crucial aspect of the design is that the claim is limited to the features shown in solid lines, which primarily consist of the lid assembly. The main body of the tumbler is rendered in broken lines, indicating it is for illustrative purposes only and does not form part of the claimed design (D’838 Patent, DESCRIPTION, FIG. 1). The claimed design features a circular lid with a rotating cover piece that slides to expose or cover drinking apertures, including an opening for a straw.
- Technical Importance: The design is associated with Plaintiff's commercially successful QUENCHER tumbler, which the complaint notes is a best-seller in its category on Amazon (Compl. ¶¶17, 20).
Key Claims at a Glance
- Design patents contain a single claim. The asserted claim is: "The ornamental design for a beverage container, as shown and described." (D’838 Patent, Claim).
- The essential visual elements of this claim include:
- The overall configuration of the lid assembly.
- A rotating cover element with a distinct shape.
- The relative placement of a straw opening and a separate drinking opening on the lid.
U.S. Design Patent No. D955,173 - "Beverage Container"
- Patent Identification: U.S. Design Patent No. D955,173, entitled "Beverage Container," issued June 21, 2022. (Compl. ¶23).
The Invention Explained
- Problem Addressed: This patent presents another new, original, and ornamental design for a beverage container, distinct from the D'838 Patent.
- The Patented Solution: The patent claims the ornamental design for a beverage container, which includes two embodiments (D’173 Patent, DESCRIPTION). The complaint specifically references the second embodiment (Compl. ¶51). This design's prominent features, shown in solid lines, include the lid, a distinctive top-mounted handle, and the upper portion of the container body (D’173 Patent, FIG. 9). The lower, tapered portion of the container is shown in broken lines and is not part of the claimed design (D’173 Patent, DESCRIPTION). Key visual features include the five-sided, somewhat hexagonal shape of the handle and a flip-straw mechanism integrated into the lid.
- Technical Importance: This design is associated with Plaintiff's ICEFLOW tumbler product line (Compl. ¶17).
Key Claims at a Glance
- The asserted claim is: "The ornamental design for a beverage container, as shown and described." (D’173 Patent, Claim).
- The essential visual elements of this claim (focused on the second embodiment) include:
- The overall aesthetic of the lid, handle, and upper container body taken as a whole.
- A top-mounted handle with a five-sided outer perimeter.
- An integrated flip-straw feature on the lid.
- The specific proportional relationship between the claimed upper body, lid, and handle.
III. The Accused Instrumentality
Product Identification
The "Accused Products" are identified as the Hyperquench, Hydraquench, HydraSip, and Hydrachug tumblers (Compl. ¶48).
Functionality and Market Context
The Accused Products are beverage tumblers sold by Defendant Five Below, a discount retailer (Compl. ¶45). The complaint alleges these products are "knockoffs" or "'dupes'" of Plaintiff's well-known QUENCHER and ICEFLOW products and are "virtually identical in overall design" (Compl. ¶¶46, 49). The Hydraquench is specifically alleged to infringe the ’838 Patent, while the HydraSip is alleged to infringe the ’173 Patent (Compl. ¶¶50-51). The complaint provides a screenshot from Defendant's website showing an image of the Hydraquench tumbler used to represent the general "Tumblers & Sippers" product category (Compl. p. 9).
IV. Analysis of Infringement Allegations
The infringement test for a design patent asks whether an "ordinary observer, familiar with the prior art, would be deceived into thinking that the accused design is the same as the patented design." The complaint presents its allegations through narrative and side-by-side visual comparisons. The side-by-side photograph of the accused Hydraquench product and the D'838 Patent's Figure 1 directly compares the allegedly infringing lid design to the patented design (Compl. p. 12).
D'838 Patent Infringement Allegations
| Claim Element (Key Features of the Patented Design) | Alleged Infringing Functionality (in the Hydraquench Product) | Complaint Citation | Patent Citation |
|---|---|---|---|
| The overall ornamental design for a beverage container lid as shown in the patent figures. | The overall design of the Hydraquench tumbler lid, which the complaint alleges is "substantially the same" as the patented design. | ¶50 | D’838 Patent, FIG. 1, 7 |
| A circular lid featuring a rotating cover element with a specific elongated shape. | The Hydraquench lid features a rotating cover that appears to have a similar shape and function to the claimed design. | ¶50; Compl. p. 12-13 | D’838 Patent, FIG. 1, 7 |
| A distinct arrangement of a central straw opening and an offset drinking aperture controlled by the rotating cover. | The visual evidence suggests the Hydraquench lid incorporates a similar arrangement of a straw opening and a secondary aperture. | ¶50; Compl. p. 13 | D’838 Patent, FIG. 7 |
D'173 Patent Infringement Allegations
The complaint provides several visual comparisons, including a perspective view of the HydraSip product next to Figure 9 of the patent, illustrating the alleged similarity of the handle and lid combination (Compl. p. 14).
| Claim Element (Key Features of the Patented Design, Embodiment 2) | Alleged Infringing Functionality (in the HydraSip Product) | Complaint Citation | Patent Citation |
|---|---|---|---|
| The overall ornamental design for a beverage container including an integrated handle, lid, and upper body, as shown in the patent figures. | The overall design of the HydraSip tumbler, which the complaint alleges is "substantially the same" as the patented design. | ¶51 | D’173 Patent, FIG. 9, 11 |
| A top-mounted handle with a five-sided, geometric shape. | The HydraSip product incorporates a top-mounted handle that appears to have a similar five-sided shape. | ¶51; Compl. p. 14 | D’173 Patent, FIG. 9, 11 |
| A lid with an integrated flip-straw mechanism. | The HydraSip product features a lid with what appears to be a functionally and visually similar flip-straw feature. | ¶51; Compl. p. 15 | D’173 Patent, FIG. 15 |
Identified Points of Contention
- Scope Questions: A central issue may be the legal effect of the broken lines in the patent drawings. For both patents, the defendant may argue that any perceived similarity by an ordinary observer is driven by the unclaimed, functional elements of a standard tumbler (e.g., the cup body shape), and that legally significant differences exist between the claimed ornamental features (the lid and handle designs) and the accused products.
- Visual Comparison Questions: The case will turn on a detailed visual comparison. The analysis raises the question of whether the subtle differences in curvature, proportion, or surface finish between the patented designs and the accused products are sufficient to distinguish them in the mind of an ordinary observer, or if those differences are too minor to prevent likely deception.
V. Key Claim Terms for Construction
In design patent litigation, the claim is understood to be the design itself as depicted in the drawings, and formal claim construction is less common than in utility patent cases. The primary "construction" issue revolves around defining the scope of the protected design.
- The Term: "The ornamental design ... as shown and described."
- Context and Importance: The interpretation of this phrase, particularly the scope of what is "shown" as part of the claimed design, will be dispositive. Practitioners may focus on this because the distinction between the claimed features (solid lines) and the unclaimed environmental structure (broken lines) defines the boundaries for the infringement comparison.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: Plaintiff may argue that the "design" should be viewed holistically, focusing on the overall visual impression created by the combination of claimed elements. They may contend that the accused products create the same overall impression, rendering any minor deviations irrelevant.
- Evidence for a Narrower Interpretation: Defendant may point to the explicit statements in both patents that "The broken lines ... depict portions of the beverage container that form no part of the claimed design" (D’838 Patent, DESCRIPTION; D’173 Patent, DESCRIPTION). This language may support an argument that the design is strictly limited to the exact shapes and configurations of the solid-line features, and that the infringement analysis must disregard any similarities in the unclaimed portions.
VI. Other Allegations
Willful Infringement
The complaint alleges willful infringement for both patents. The factual basis is the allegation that Plaintiff sent Defendant a demand letter on or about October 2024, providing actual notice of the asserted patents (Compl. ¶¶63, 77, 83). The complaint further alleges that after receiving this notice, Defendant not only continued its allegedly infringing conduct but "even expanded its line of infringing products" (Compl. ¶¶64, 77, 83).
VII. Analyst’s Conclusion: Key Questions for the Case
This case appears to center on fundamental principles of design patent law applied to a high-volume consumer product. The key questions for the court will likely be:
- A question of visual identity: From the perspective of an ordinary purchaser of beverage tumblers, are the accused Hydraquench and HydraSip products "substantially the same" as the designs claimed in the D'838 and D'173 patents, respectively? This will involve a fact-intensive comparison focusing on the overall visual effect of the claimed ornamental features.
- A question of analytical scope: In conducting the visual comparison, what legal weight, if any, should be given to the portions of the products corresponding to the unclaimed (broken line) features in the patents? The court will need to determine if the accused products can be found to infringe if the similarity is primarily concentrated in the claimed lid and handle designs, even if the overall products are similar.
- A question of intent: Did Defendant's alleged continuation and expansion of the accused product lines after receiving a detailed notice letter in October 2024 constitute willful infringement, potentially justifying an award of enhanced damages under 35 U.S.C. § 284?