Bounce Curl LLC v. Partnerships Unincorp Associations

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Bounce Curl, LLC (Arizona)
  • Defendant: The Partnerships and Unincorporated Associations Identified on Schedule “A” (People's Republic of China or other foreign jurisdictions)
  • Plaintiff’s Counsel: Greer, Burns & Crain, Ltd.
• Case Identification: 1:24-cv-11392, N.D. Ill., 11/05/2024
• Venue Allegations: Venue is based on allegations that Defendants operate interactive e-commerce stores that target business activities and direct sales to consumers in the United States, including Illinois.
• Core Dispute: Plaintiff alleges that Defendants’ online sales of hairbrushes through various e-commerce platforms infringe a U.S. design patent covering an ornamental hairbrush design.
• Technical Context: The lawsuit operates within the consumer hair care products industry, focusing on the enforcement of design patent rights against alleged counterfeit goods sold through international online marketplaces.
• Key Procedural History: The complaint is filed against a schedule of unidentified e-commerce operators, a strategy often employed to combat diffuse networks of online sellers. The complaint does not mention any prior litigation or proceedings related to the patent-in-suit.

Case Timeline

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

U.S. Design Patent No. D1,028,527 - HAIR BRUSH

• Patent Identification: U.S. Design Patent No. D1,028,527, titled HAIR BRUSH, issued May 28, 2024.

The Invention Explained

• Problem Addressed: As a design patent, the patent does not describe a technical problem. Instead, it protects a new, original, and ornamental design for an article of manufacture. The complaint asserts that Plaintiff's products featuring its patented designs have become enormously popular and are instantly recognizable to consumers (Compl. ¶7, ¶9).
• The Patented Solution: The patent protects the specific visual appearance of a hairbrush. The overall ornamental design is defined by the patent’s drawings, which show a brush with a distinctive head shape featuring a scalloped edge, a specific arrangement of bristle rows, and a sleek, tapered handle (’527 Patent, DESCRIPTION; FIG. 1-7). The perspective view in Figure 1 of the patent illustrates the overall configuration of these features (Compl. p. 4, FIG. 1).
• Technical Importance: The complaint alleges that the patented design is distinctive and widely recognized, and has come to "symbolize high quality" in the haircare industry (Compl. ¶7, ¶9).

Key Claims at a Glance

• The patent asserts a single claim: “The ornamental design for the hair brush, as shown and described” (’527 Patent, CLAIM).
• This claim covers the overall visual appearance of the hairbrush created by the combination of ornamental features depicted in Figures 1 through 7 of the patent.

III. The Accused Instrumentality

Product Identification

The accused instrumentalities are hairbrushes, referred to as the “Infringing Products,” allegedly sold by the Defendants (Compl. ¶3).

Functionality and Market Context

The complaint alleges that Defendants operate e-commerce stores under various aliases on platforms including Amazon, eBay, AliExpress, Temu, and TikTok to sell unauthorized products that infringe the ’527 Patent’s design (Compl. ¶13). These stores are designed to appear as authorized retailers to consumers (Compl. ¶16). The complaint further alleges that the Defendants are part of a network of infringers who operate under fictitious aliases to conceal their identities and evade enforcement (Compl. ¶12, ¶19). A front view of the patented design, showing the specific bristle pattern and head shape at issue, is provided in the complaint (Compl. p. 4, FIG. 4).

IV. Analysis of Infringement Allegations

The complaint does not contain a claim chart. The infringement allegation for a design patent rests on whether an "ordinary observer," giving the attention a purchaser usually gives, would find the accused design to be substantially the same as the patented design.

The complaint alleges that Defendants are "making, using, offering for sale, selling, and/or importing" products that "infringe directly and/or indirectly the ornamental design claimed in the Bounce Curl Design" (’527 Patent; Compl. ¶26). The core of the infringement allegation is that the hairbrushes sold by Defendants are visually indistinguishable from the design protected by the ’527 Patent, causing consumer confusion and trading on Plaintiff's goodwill (Compl. ¶3). The complaint presents multiple views of the patented design, such as the right side view in Figure 6, to establish the specific ornamental features that are allegedly copied by Defendants (Compl. p. 5, FIG. 6).

Identified Points of Contention

• Evidentiary Question: The central issue will be a factual comparison. Once the accused products are identified, the court will need to determine if their overall visual appearance is "substantially the same" as the design depicted in the figures of the ’527 Patent.
• Scope Question: The analysis will focus on whether any differences between the accused products and the patented design are significant enough to alter the overall ornamental impression for an ordinary observer, or if such differences are merely minor variations that do not prevent a finding of infringement.

V. Key Claim Terms for Construction

In design patent cases, the claim is defined by the drawings, not by textual limitations. Formal construction of specific terms is therefore not typically a central issue. The legal analysis focuses on a comparison of the accused product's overall design to the ornamental appearance depicted in the patent’s figures. Practitioners will focus not on construing terms, but on advocating for a particular interpretation of the patented design's overall visual impression and its scope.

VI. Other Allegations

Indirect Infringement

The complaint includes a conclusory allegation of indirect infringement (Compl. ¶26) and seeks to enjoin "aiding, abetting, [or] contributing to" infringement (Prayer for Relief ¶1(b)). However, the complaint does not plead specific facts to support the requisite knowledge and intent for induced infringement or the elements of contributory infringement beyond the general allegation of selling the completed infringing product.

Willful Infringement

Willfulness is alleged based on Defendants "knowingly and willfully" importing, distributing, and selling the Infringing Products without a license from Plaintiff (Compl. ¶22, ¶23). The allegations of Defendants operating under multiple aliases and using tactics to evade detection may be used to support an inference of a deliberate disregard for Plaintiff's patent rights (Compl. ¶19, ¶20).

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

• A core issue will be one of visual identity: will the ornamental design of the hairbrushes sold by the Defendants, once produced in discovery, be considered "substantially the same" as the design claimed in the ’527 patent in the eyes of an ordinary observer?
• A critical procedural and enforcement question will be one of defendant accountability: given that the Defendants are alleged to be numerous, anonymous, and foreign-based operators, can the Plaintiff effectively identify them, obtain jurisdiction, and enforce an injunction or monetary judgment against a fluid network of online storefronts?