Kitsch LLC v. Partnerships Unincorp Corps

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Kitsch LLC (Delaware)
  • Defendant: The Partnerships and Unincorporated Corporations Identified on Schedule “A” (China)
  • Plaintiff’s Counsel: Siegfried Rivera, PA.
• Case Name: Kitsch LLC v. The Partnerships and Unincorporated Corporations Identified on Schedule “A”
• Case Identification: 1:25-cv-23370, S.D. Fla., 07/28/2025
• Venue Allegations: Venue is asserted under the alien venue statute, 28 U.S.C. § 1391, based on the allegation that Defendants are Chinese individuals or entities. Personal jurisdiction is alleged based on Defendants targeting business activities, including sales of the accused products, to consumers in Florida through commercial TikTok Shop stores.
• Core Dispute: Plaintiff alleges that Defendants’ shower caps, sold through various online storefronts on TikTok Shop, infringe a U.S. design patent exclusively licensed by Plaintiff.
• Technical Context: The dispute is in the field of consumer personal care accessories, specifically concerning the ornamental design of a shower cap.
• Key Procedural History: Plaintiff is the exclusive licensee with the right to sue under the asserted patent. The complaint has been filed against a group of unnamed defendants, identified on a sealed "Schedule A," a strategy often employed in actions against disparate, foreign-based e-commerce sellers who allegedly operate in concert to conceal their identities.

Case Timeline

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

U.S. Design Patent No. D1,033,804 - Shower Cap

• Patent Identification: U.S. Design Patent No. D1,033,804, titled Shower Cap, issued July 9, 2024 (the “'804 Patent”).
• The Invention Explained:
  • Problem Addressed: Design patents protect aesthetics rather than function. They do not contain a "problem/solution" narrative. The purpose of the '804 Patent is to protect a new, original, and ornamental design for a shower cap.
  • The Patented Solution: The patent claims the specific visual appearance of a shower cap as depicted in its drawings ('804 Patent, Claim). Key ornamental features include a soft, voluminous body with a gathered texture, a circular elasticized opening, and a distinctive bunched or tied feature at the rear of the cap when worn ('804 Patent, Figs. 1, 4, 7). The patent explicitly disclaims the subject matter shown in broken lines, which includes certain internal stitching and the human figure used for illustrative purposes, thereby defining the scope of the protected design as the cap’s shape and configuration itself ('804 Patent, Description).
  • Technical Importance: The complaint alleges that Plaintiff's shower caps embodying the patented design are "well-established on TikTok Shop and enjoy quality customer reviews and high ratings," suggesting the design has achieved recognition in the marketplace (Compl. ¶10).
• Key Claims at a Glance:
  • The single claim of the '804 Patent is for "The ornamental design for a shower cap, as shown and described" ('804 Patent, Claim). This claim covers the overall visual appearance of the article illustrated in the patent's ten figures.

III. The Accused Instrumentality

• Product Identification: The accused instrumentalities are "Shower Caps" ("Infringing Products") offered for sale and sold by the Defendants through various "TikTok Shop Stores" (Compl. ¶¶ 2, 9).
• Functionality and Market Context: The complaint alleges that Defendants, believed to be an interrelated group of foreign infringers, operate multiple e-commerce stores on TikTok Shop to sell shower caps that are "substantially the same as the patented design" (Compl. ¶¶ 2, 12, 21). The complaint includes images of the accused products, which are described as having identical shapes and features to Plaintiff's products and are marketed with similar descriptions (Compl. ¶9). For instance, the complaint provides a side-by-side visual comparison showing an accused shower cap with a gathered body, a circular opening, and a bunched rear portion, mirroring features of the patented design (Compl. p. 7).

IV. Analysis of Infringement Allegations

The standard for design patent infringement 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 alleges this standard is met (Compl. ¶21). The visual evidence provided on page 7 of the complaint forms the primary basis for this allegation.

• A perspective view of an accused product shows a soft, gathered shower cap with a visible elasticized opening, which Plaintiff compares to its patent's Figure 1 (Compl. p. 7).
• A top-down view of an accused product displays its circular shape and gathered circumference, which Plaintiff compares to its patent's Figure 4 (Compl. p. 7).
• A photograph of the accused product being worn by a model illustrates its in-use appearance, including a bunched portion at the back of the head, which Plaintiff compares to its patent's Figure 7 (Compl. p. 7).

The complaint does not provide a traditional claim chart. The infringement theory is based on a direct visual comparison of the overall appearance of the products.

• Identified Points of Contention:
  • Scope Questions: The infringement analysis will likely focus on the overall visual impression. A question for the court will be whether the accused products are "substantially the same" as the patented design. The accused product shown in the complaint has a cherry surface pattern, whereas the patent drawings are unadorned. The dispute may therefore turn on whether the claimed design resides in the overall shape and configuration, as opposed to any specific surface ornamentation, and whether an ordinary observer would find the designs the same despite this difference.
  • Technical Questions: As this is a design patent case, the questions are primarily aesthetic, not technical. The key factual inquiry will be a comparison of the products to the patent drawings to determine if the "overall ornamental visual impression" is the same.

V. Key Claim Terms for Construction

In design patent litigation, formal claim construction of written terms is rare, as the claim is defined by the drawings. The central issue is not the definition of a term but the overall scope of the visual design claimed.

• The Term: "The ornamental design for a shower cap"
• Context and Importance: The scope of this "term" (i.e., the design itself) is the core of the case. The analysis will focus on what visual elements are included in the protected design and their overall effect on an ordinary observer.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The patent's use of solid lines to depict the overall shape, proportions, and gathered texture of the cap suggests these features form the core of the claimed design ('804 Patent, Figs. 1-10). An argument for broader scope could posit that any shower cap with this same overall configuration infringes, regardless of minor details or surface patterns.
  • Evidence for a Narrower Interpretation: The specific contours, proportions, and fabric bunching shown in the drawings could be argued to limit the design to the precise appearance depicted ('804 Patent, Figs. 1, 7). Furthermore, the patent explicitly disclaims matter shown in broken lines, such as specific internal stitching patterns, which narrows the scope by excluding those elements from the claim ('804 Patent, Description; Fig. 5).

VI. Other Allegations

• Indirect Infringement: The complaint alleges Defendants constitute an "interrelated group of infringers working in active concert" (Compl. ¶12). The prayer for relief requests an injunction against those "aiding, abetting, contributing to, or otherwise assisting anyone in infringing upon the Patent" (Compl. p. 8, ¶1(b)).
• Willful Infringement: The complaint alleges that Defendants' infringement is willful, asserting they have "knowingly and willfully offered for sale, sold, and/or imported" the infringing products without a license or authorization from the Plaintiff (Compl. ¶¶ 17, 18).

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

1. The "Ordinary Observer" Test: The central issue will be one of visual comparison: giving the attention a typical purchaser would, is the overall ornamental appearance of the accused shower caps substantially the same as the design claimed in the '804 patent, such that the observer would be deceived?
2. Scope of the Design: A critical question for infringement will be the role of surface ornamentation. Can the '804 patent's claimed design, which is depicted as unadorned, be infringed by a product bearing a distinct surface pattern (e.g., the cherries shown in the complaint), or is the similarity in the underlying three-dimensional shape and configuration sufficient?
3. Enforcement and Damages: Given the defendants are alleged to be a network of foreign e-commerce sellers operating under fictitious names (Compl. ¶¶ 13-14), a primary practical challenge for the Plaintiff will be identifying the responsible parties, effecting service, and enforcing any potential judgment or injunction.