Bounce Curl LLC v. Partnerships Unincorp Associations

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Bounce Curl, LLC (Arizona)
  • Defendant: [REDACTED] AND THE INDIVIDUALS AND ENTITIES OPERATING [REDACTED] (alleged to be located in the People's Republic of China or other foreign jurisdictions)
  • Plaintiff’s Counsel: Greer, Burns & Crain, Ltd.
• Case Identification: 1:24-cv-11419, N.D. Ill., 11/06/2024
• Venue Allegations: Venue is alleged on the basis that defendants target and conduct business with consumers in the United States, including Illinois, through interactive e-commerce stores.
• Core Dispute: Plaintiff alleges that Defendants’ online sales of unauthorized hairbrushes infringe its U.S. design patent covering the ornamental appearance of a hairbrush.
• Technical Context: The dispute is centered on the ornamental design of a consumer hair care product sold in the competitive e-commerce market.
• Key Procedural History: The complaint is an Amended Complaint. The asserted patent was issued approximately five months prior to the filing of this action. The complaint does not mention any prior litigation or administrative proceedings involving the patent-in-suit.

Case Timeline

Date	Event
2023-07-28	D1,028,527 Patent Priority Date (File Date)
2024-05-28	D1,028,527 Patent Issued
2024-11-06	Amended Complaint Filed

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

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

The Invention Explained

• Problem Addressed: Design patents protect novel, original, and ornamental designs for articles of manufacture. The patent does not describe a technical problem but instead provides a new ornamental design for a hairbrush (D’527 Patent, Title, Claim).
• The Patented Solution: The patent claims the specific visual appearance of a hairbrush as depicted in its seven figures (D’527 Patent, Claim). The design is characterized by the overall configuration of the brush, including a head with a distinct bristle pattern, a tapered handle, and particular side and end profiles as illustrated in the perspective, front, and side views (D’527 Patent, FIG. 1, FIG. 4, FIG. 6).
• Technical Importance: The complaint alleges that Plaintiff's products, which embody its patented designs, are distinctive and widely recognized by consumers, associating the design with a source of quality in the haircare industry (Compl. ¶7, ¶9).

Key Claims at a Glance

• The single claim of the D'527 Patent is asserted.
• The claim protects:
  • The ornamental design for a hair brush, as shown and described in the patent's figures. In design patent litigation, the claim covers the overall visual impression of the article, rather than a list of textual elements.

III. The Accused Instrumentality

Product Identification

The accused instrumentalities are hairbrushes, identified as the "Infringing Products," which are allegedly sold by Defendants through various e-commerce stores (Compl. ¶3). These stores operate under numerous "Seller Aliases" on platforms such as Amazon, eBay, AliExpress, and Temu (Compl. ¶13).

Functionality and Market Context

• The complaint alleges that the Infringing Products are unauthorized hairbrushes that embody Plaintiff's patented design (Compl. ¶3, ¶22).
• It further alleges that Defendants operate e-commerce stores designed to appear to unknowing consumers as authorized retailers, using content and images that make it difficult to distinguish them from legitimate sellers (Compl. ¶16, ¶19). The complaint includes several views of the patented design, such as a perspective view (FIG. 1), which illustrates the overall configuration of the brush that is allegedly copied by the Defendants (Compl. p. 4).

IV. Analysis of Infringement Allegations

Design patent infringement is determined by the "ordinary observer" test, which asks 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 analysis compares the overall ornamental appearance of the accused product with the claimed design.

D1,028,527 Infringement Allegations

Visual Feature (from D'527 Patent Claim)	Alleged Infringing Feature	Complaint Citation	Patent Citation
The overall ornamental appearance of the hair brush, as shown in the patent's figures, including its particular head, handle, and bristle configuration.	Defendants are alleged to be making, using, offering for sale, selling, and/or importing into the United States "the same unauthorized and unlicensed product... that infringes Plaintiff's patented design." The complaint's table of figures shows the patented design which is allegedly embodied in the Infringing Products.	¶3, ¶22, ¶26	D’527 Patent, FIG. 1-7
The specific visual characteristics of the brush head, including the bristle pattern and shape.	The complaint's inclusion of a front view of the design (FIG. 4) highlights the detailed bristle arrangement that is allegedly copied in the Infringing Products.	p. 4, ¶22	D’527 Patent, FIG. 4
The side profile of the brush, including the shape of the brush body and the arrangement of bristles extending from it.	The complaint alleges that the Infringing Products directly infringe the "Bounce Curl Design," which encompasses the side profile shown in the patent's figures. The complaint shows a side view (FIG. 6) to define the patented design.	p. 5, ¶22	D’527 Patent, FIG. 6
The appearance of the back of the brush, including the shape of the handle and the un-bristled side of the head.	The complaint alleges infringement of the overall design, which includes the features shown in the back view of the patent (FIG. 5).	p. 5, ¶22	D’527 Patent, FIG. 5

Identified Points of Contention

• Factual Question: The central issue will be a factual comparison: does the ornamental design of the hairbrushes sold by Defendants appear substantially the same as the design claimed in the D'527 Patent to an ordinary observer?
• Evidentiary Question: A key question for the court will be what evidence demonstrates the actual appearance of the "Infringing Products" sold by the anonymous Defendants, as the complaint primarily uses figures from the patent itself to represent the accused design (Compl. p. 4-5).

V. Key Claim Terms for Construction

In design patent cases, claim construction is typically not a central issue, as the claim is defined by the drawings rather than words. The scope of the claim is understood through a visual analysis of the patent's figures. However, a court may be required to distinguish between ornamental and functional aspects of the claimed design.

• The Term: "ornamental design for a hair brush"
• Context and Importance: Practitioners may focus on this concept because infringement only applies to the ornamental aspects of a design. If Defendants were to argue that certain features of the brush (e.g., the general shape of the handle or a basic bristle layout) are primarily functional, it could raise the question of whether those features should be discounted from the infringement analysis.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: The patent claims the design "as shown and described," and the consistent solid lines used throughout all figures suggest that all depicted features are part of the claimed ornamental design (D’527 Patent, FIG. 1-7).
  • Evidence for a Narrower Interpretation: A defendant could argue that the basic utility of a hairbrush dictates certain features, such as having a handle and bristles, and that these functional elements should be given less weight in the "ordinary observer" test. The patent itself provides no explicit disclaimers of any features as functional.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Defendants infringe "directly and/or indirectly" (Compl. ¶26). The Prayer for Relief seeks to enjoin Defendants from "aiding, abetting, contributing to, or otherwise assisting anyone" in infringing the patent (Compl. Prayer ¶1(b)). The body of the complaint, however, focuses on allegations of direct infringement through Defendants' own acts of making, using, selling, and importing (Compl. ¶22).
• Willful Infringement: The complaint alleges that Defendants' infringement was willful (Compl. ¶23). This allegation is supported by claims that Defendants are part of a larger, interconnected network that knowingly sells infringing goods, uses tactics to conceal identities, and continues to operate despite enforcement efforts (Compl. ¶12, ¶19, ¶22).

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

• A central issue will be one of visual comparison: will the evidence presented at trial establish that the accused products sold by the various online sellers are "substantially the same" in overall ornamental appearance as the design claimed in the D'527 patent, from the perspective of an ordinary observer?
• A key practical question will be one of enforcement and attribution: given the allegations that Defendants are a diffuse network of anonymous foreign entities operating under shifting aliases, can Plaintiff effectively identify the responsible parties and enforce an injunction or damages award against them?