DCT
1:24-cv-00539
Unger Marketing International, LLC v. Moerman N.V.
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Unger Marketing International, LLC (Delaware)
- Defendant: Moerman N.V. (Belgium) and Moerman Americas, Inc. (Delaware)
- Plaintiff’s Counsel: McCarter & English, LLP
- Case Identification: 1:24-cv-00539, D. Del., 05/02/2024
- Venue Allegations: Venue is alleged to be proper based on Defendants’ acts of infringement in the district and, for Moerman Americas, Inc., its incorporation in Delaware.
- Core Dispute: Plaintiff alleges that Defendant’s microfiber cleaning cloths infringe a design patent for a "Cleaning Cloth with Corner Pocket."
- Technical Context: The dispute is in the field of professional and consumer cleaning tools, where ornamental product design can serve as a key market differentiator.
- Key Procedural History: The complaint does not mention any prior litigation, inter partes review proceedings, or licensing history related to the patent-in-suit.
Case Timeline
| Date | Event |
|---|---|
| 2010-04-30 | D'855 Patent Priority Date |
| 2011-02-15 | D'855 Patent Issue Date |
| 2024-05-02 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Design Patent No. D632,855 - “Cleaning Cloth with Corner Pocket”
- Patent Identification: U.S. Design Patent No. D632,855, titled “Cleaning Cloth with Corner Pocket,” issued February 15, 2011. (Compl. ¶16; D'855 Patent, cover).
The Invention Explained
- Problem Addressed: Design patents protect the ornamental appearance of an article of manufacture rather than a technical problem and solution. The patent addresses the challenge of creating a new, original, and ornamental design for a cleaning cloth. (D'855 Patent, Claim).
- The Patented Solution: The patent claims the specific ornamental design for a cleaning cloth as depicted in its figures. The design consists of the visual appearance of a generally square cloth featuring a prominent, rounded pocket element affixed to one corner. (D’855 Patent, Claim, FIG. 2, FIG. 8). The figures illustrate the overall shape, the specific curvature of the corner pocket, and the proportions of the design elements. (D'855 Patent, FIG. 1-8).
- Technical Importance: The complaint asserts that in the competitive cleaning products industry, "visual design details are important in distinguishing products." (Compl. ¶30).
Key Claims at a Glance
- As a design patent, the D'855 Patent contains a single claim for "The ornamental design for the cleaning cloth with corner pocket, as shown." (D'855 Patent, Claim). The scope of this claim is defined by the visual representations in the patent's drawings.
III. The Accused Instrumentality
Product Identification
- The accused instrumentalities are Defendant Moerman’s "Bamboo Microfiber Cloth," "Bamboo Window Cloth," and "PRO Bamboo Window Cloth" (collectively, the "Accused Products"). (Compl. ¶24).
Functionality and Market Context
- The Accused Products are identified as microfiber window cleaning cloths that are sold in the United States. (Compl. ¶25, ¶27). The complaint alleges that these products compete directly in the marketplace with Plaintiff's own microfiber cloth products. (Compl. ¶24).
- The core of the infringement allegation rests on the visual appearance of the Accused Products. The complaint includes a side-by-side visual comparison showing the "Moerman PRO Bamboo Window Cloth" as a striped cloth with a dark, triangular pocket feature on one corner. (Compl. p. 8). This visual, provided by the Plaintiff, depicts the accused product's corner feature being used to hold the cloth. (Compl. p. 8).
IV. Analysis of Infringement Allegations
The infringement test for a design patent is whether an "ordinary observer," familiar with the prior art, would be deceived into purchasing the accused product believing it to be the patented design. The complaint's allegations are presented below in a format adapted for a design patent.
D'855 Patent Infringement Allegations
| Claim Element (from the single claim) | Alleged Infringing Design | Complaint Citation | Patent Citation |
|---|---|---|---|
| The ornamental design for a cleaning cloth with corner pocket, as shown. | The complaint alleges the Accused Products are "substantially similar" to the patented design. It presents visual evidence showing the Moerman products as generally square cloths with a distinct corner feature, which in two of the three accused models is a pocket. The complaint contends an ordinary purchaser would be induced to purchase the accused products thinking they were the patented design. | ¶28, ¶31 | D'855 Patent, FIG. 1-8 |
Identified Points of Contention
- Scope Questions: The central legal question is whether the overall visual impression of the Accused Products is "substantially the same" as that of the D'855 Patent's design. The analysis will not focus on a list of elements but on the design as a whole.
- Technical Questions: A key factual question for the court will be how to weigh the visual impact of differences between the designs against their general similarities. Potential differences for consideration may include the surface ornamentation (the accused products have stripes, whereas the patent drawings show a plain, stippled surface) and the precise shape of the corner element (the accused products appear to have a more angular corner pocket, while the patent depicts a distinctly rounded one). (Compl. p. 8; D'855 Patent, FIG. 2). Furthermore, the "Moerman Bamboo Microfiber Cloth" is shown with corner straps rather than a solid pocket, raising the question of whether its design creates the same overall visual impression as the patented pocket design. (Compl. p. 10).
V. Key Claim Terms for Construction
In design patent litigation, formal claim construction is less common than in utility patent cases. The analysis focuses on a verbal description of the claimed design as shown in the patent's figures.
- The Term: "The ornamental design ... as shown"
- Context and Importance: The entire infringement analysis turns on the interpretation of the patented design's overall visual appearance and which features contribute to it. Practitioners may focus on whether certain aspects of the design are ornamental or are dictated by function, and how those ornamental features combine to create a holistic look and feel.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party could argue that the core ornamental concept is the simple, bold impression of a square cloth with any contrasting pocket-like structure on a single corner, and that minor variations in shape or surface pattern do not change this overall impression. (D'855 Patent, FIG. 8).
- Evidence for a Narrower Interpretation: A party could argue the design is limited to the specific features shown in the drawings, including the un-patterned surface of the cloth and the specific curvature and proportions of the corner pocket. (D'855 Patent, FIG. 2). Under this view, any deviation, such as the addition of stripes or a change in the pocket's shape from rounded to angular, could be argued to create a patentably distinct design.
VI. Other Allegations
- Indirect Infringement: The complaint’s prayer for relief seeks an injunction against "contributing to the infringement of, and/or inducing infringement." (Compl. p. 11, ¶b). However, the body of the complaint contains factual allegations directed only at direct infringement under 35 U.S.C. § 271(a) and does not plead specific facts to support knowledge or intent for an indirect infringement claim. (Compl. ¶¶27, 33).
- Willful Infringement: The complaint does not contain an explicit allegation of willful infringement or plead facts related to pre-suit knowledge of the patent. The prayer for relief requests a finding that the case is "exceptional" to award fees under 35 U.S.C. § 285, but the factual basis for such a finding is not detailed in the complaint. (Compl. p. 12, ¶e).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of visual comparison: Applying the "ordinary observer" test, is the overall ornamental appearance of the accused Moerman cloths, with their striped patterns and angular corner features, substantially the same as the specific design claimed in the D'855 patent, which shows a plain cloth with a rounded corner pocket?
- A key evidentiary question will be the impact of differentiation: How will a fact-finder weigh the visual effect of differences between the designs—such as surface pattern, color contrast, and the precise geometry of the corner element—against the general conceptual similarity of a cleaning cloth with a hand pocket in its corner? The "Moerman Bamboo Microfiber Cloth," with its corner straps instead of a pocket, may present a distinct question of similarity from the other two accused products.