DCT
1:25-cv-20267
Wagwear LLC v. Emporion Group LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Wagwear LLC (New York)
- Defendant: Emporion Group LLC (Florida)
- Plaintiff’s Counsel: JAYARAM Inc
- Case Identification: 1:25-cv-20267, S.D. Fla., 01/17/2025
- Venue Allegations: Venue is alleged to be proper in the Southern District of Florida because Defendant resides in North Miami, Florida, and the alleged infringing acts, including marketing and sales, occurred within the district.
- Core Dispute: Plaintiff alleges that Defendant’s "Dog Flops" pet boots infringe a design patent and the associated trade dress for Plaintiff’s "WAGWELLIES" product line.
- Technical Context: The dispute is in the consumer pet accessories market and centers on the specific ornamental design of a ventilated, all-weather dog boot.
- Key Procedural History: The complaint notes that the asserted patent is a continuation-in-part of an earlier application that matured into a related design patent. Plaintiff also alleges it has previously enforced its intellectual property rights against other third parties through cease-and-desist letters and online marketplace takedown requests.
Case Timeline
| Date | Event |
|---|---|
| 2017-12-27 | '102 Patent Priority Date |
| 2021-01-01 | WAGWELLIES product line released (approximate date) |
| 2021-12-07 | '102 Patent Issue Date |
| 2025-01-17 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Design Patent No. D938,102, titled “Pet Boot,” issued on December 7, 2021.
- The Invention Explained:
- Problem Addressed: Design patents protect ornamental appearance rather than functional solutions. The patent protects a novel ornamental design for a pet boot, intended to create a distinctive visual appearance in the marketplace (Compl. ¶14).
- The Patented Solution: The patent claims the ornamental design for a pet boot as depicted in its figures ('102 Patent, Claim). The design consists of a rounded, ovoidal lower body that smoothly attaches to a shorter, cylindrical top portion or cuff ('102 Patent, FIG. 1, 3). The lower body is characterized by a regular pattern of circular see-through perforations, and the cuff is encircled by a strap ('102 Patent, FIG. 1). The patent’s description clarifies that the broken lines showing stitching on the strap are for illustrative purposes and "form no part of the claimed design" ('102 Patent, DESCRIPTION).
- Technical Importance: The complaint alleges the design’s importance lies in its distinctiveness, stating it is "unusual" and has "acquired secondary meaning" through significant marketing and sales (Compl. ¶17).
- Key Claims at a Glance:
- The patent asserts a single claim: "The ornamental design for a pet boot, as shown and described."
- The essential ornamental elements of this claim, depicted in solid lines in the patent's figures, include:
- A generally ovoidal lower body portion.
- A cylindrical upper cuff portion.
- A pattern of circular perforations covering the lower body.
- A wraparound strap located at the junction of the cuff and the lower body.
III. The Accused Instrumentality
- Product Identification: The accused products are pet boots marketed under the name "Dog Flops" and sold under the "YEPETS" brand name (Compl. ¶¶ 34, 35).
- Functionality and Market Context: The "Dog Flops" are described as non-slip dog shoes for paw protection from elements like hot pavement (Compl. ¶35, Ex. F). The complaint alleges they are sold on Amazon in direct competition with Plaintiff's WAGWELLIES, are "substantially similar copies," and are sometimes offered at a lower price (Compl. ¶¶ 35, 44). The complaint provides a screenshot of the accused product's Amazon listing. This screenshot shows the "Dog Flops" product, its pricing, and its "YEPETS" branding (Compl. p. 11).
IV. Analysis of Infringement Allegations
Design patent infringement is determined by the "ordinary observer" test, which considers whether an ordinary observer would believe the accused design is the same as the patented design. The complaint supports its infringement theory with side-by-side visual comparisons.
- D938,102 Infringement Allegations
| Claim Feature (from '102 Patent Figures) | Alleged Infringing Functionality (from Accused "Dog Flops") | Complaint Citation |
|---|---|---|
| A generally ovoidal lower body connected to a cylindrical top portion. | The accused product features a "generally ovoidal body connected to a cylindrical top portion." | ¶40 |
| A pattern of circular see-through holes on the lower body. | The accused product copies the "shape of see-through holes, pattern and placement of see-through holes." | ¶40 |
| A wraparound strap at the junction of the upper and lower portions. | The accused product copies the "strap placement" of the patented design. | ¶40 |
| The overall visual appearance as depicted in the patent figures. | The complaint presents a direct visual comparison, alleging the accused "Dog Flops" are a "blatant copy and knock-off" with the "same overall appearance" as the WAGWELLIES product embodying the patented design. | ¶39 |
The complaint includes a visual aid directly comparing photographs of the accused "Emporion Dog Flops" with photographs of the Plaintiff's "WAGWELLIES Mojave" product (Compl. p. 13). A further visual comparison places photos of the accused product alongside Figures 1 and 3 from the '102 Patent, inviting a direct comparison to the claimed design itself (Compl. p. 14).
- Identified Points of Contention:
- Scope Questions: The central dispute will be whether the overall ornamental appearance of the "Dog Flops" is substantially the same as the claimed design in the '102 Patent. Defense may point to differences in specific proportions, the texture of the material, or the prominent "yepets" branding on the strap as distinguishing features. Plaintiff will likely counter that these are minor differences that do not change the overall visual impression perceived by an ordinary observer.
- Technical Questions: An evidentiary question will be how an ordinary observer, when considering the prior art, perceives the two designs. The analysis will focus not on a side-by-side dissection of minor differences, but on whether the "Dog Flops" appropriate the novel ornamental features of the '102 Patent that distinguish it from the prior art.
V. Key Claim Terms for Construction
In design patent litigation, claim construction focuses on the scope of the design as a whole, as depicted in the drawings, rather than on textual terms.
- The Term: "The ornamental design for a pet boot, as shown and described."
- Context and Importance: The scope of the claim is defined by the visual representations in the patent's figures. The central issue is what specific visual elements are protected. Practitioners may focus on which aspects of the design are ornamental versus purely functional, as functional elements are not protected by a design patent.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party could argue that the claim covers the overall visual impression of a perforated, two-part bootie with an ankle strap, and that minor variations in the number or exact placement of holes do not escape infringement. The complaint's focus on the "same overall appearance" supports this view (Compl. ¶39).
- Evidence for a Narrower Interpretation: The patent itself provides a basis for a narrower scope by explicitly stating that the "broken lines on the pet boot strap depict stitching and form no part of the claimed design" ('102 Patent, DESCRIPTION). A party could argue that the claim is limited to the exact proportions and contours shown in the solid-line drawings, and any deviation, such as a different cuff height or perforation pattern, falls outside the claim's scope.
VI. Other Allegations
- Indirect Infringement: The complaint makes a passing allegation of indirect infringement (Compl. ¶3), but the substantive allegations in the patent count focus on direct infringement by "making, using, offering to sell, and/or selling" the accused products (Compl. ¶49). The complaint does not plead specific facts to support a claim for either induced or contributory infringement.
- Willful Infringement: The complaint alleges that Defendant’s infringement was willful (Compl. ¶50). This allegation is supported by claims that the accused product is a "blatant copy and knock-off" (Compl. ¶39) and by visual evidence suggesting that Defendant copied Plaintiff's advertising materials, such as a graphic illustrating how to measure a dog's paw (Compl. ¶45).
VII. Analyst’s Conclusion: Key Questions for the Case
This case will likely hinge on two primary questions for the court, both rooted in visual and market perception.
A core issue will be one of visual identity: From the perspective of an ordinary observer familiar with the prior art, is the overall ornamental design of the accused "Dog Flops" substantially the same as the design claimed in the '102 Patent? The resolution will depend on a holistic visual comparison rather than an itemization of small differences.
A key evidentiary question will be one of intent: Do the allegations of being a "blatant copy," combined with the alleged mimicry of advertising materials, provide sufficient evidence to support a finding of willful infringement? This determination could expose the Defendant to enhanced damages if infringement is found.