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" (alleged to be foreign entities)
  • Plaintiff’s Counsel: Greer, Burns & Crain, Ltd.
• Case Identification: 1:24-cv-11477, N.D. Ill., 11/06/2024
• Venue Allegations: Venue is based on allegations that the defendants operate interactive e-commerce stores that target and sell products to consumers in Illinois.
• Core Dispute: Plaintiff alleges that numerous unidentified online retailers are making, using, selling, and importing hairbrushes that infringe its U.S. design patent.
• Technical Context: The dispute centers on the ornamental design of a consumer hair care product in a market where aesthetic differentiation is a key commercial driver.
• Key Procedural History: The complaint is filed against a group of unidentified defendants, a procedural posture common in actions targeting online sellers who allegedly operate under multiple aliases to conceal their identities. Plaintiff also alleges its products are marked in compliance with patent law.

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, "HAIR BRUSH," issued May 28, 2024.

The Invention Explained

• Problem Addressed: The complaint does not describe a technical problem but rather a commercial one. Plaintiff asserts it is an "innovator in the design and manufacture of innovative hair products" (Compl. ¶6) and that its products are known for their "distinctive patented designs" which have become "instantly recognizable" to consumers (Compl. ¶¶7, 9). The implicit problem is the need for a new and unique ornamental appearance for a hairbrush to serve as a source identifier.
• The Patented Solution: The patent protects the specific, non-functional, ornamental design of a hairbrush. The design's overall visual impression is defined by the seven figures included in the patent, which depict features such as a tapered handle, a brush head with scalloped sides, and a particular arrangement of bristles (D1,028,527 Patent, Figs. 1-7). The patent's claim protects "the ornamental design for the hair brush, as shown and described" (D1,028,527 Patent, p. 3).
• Technical Importance: The complaint alleges that the design's value is aesthetic and commercial, serving to make Bounce Curl products "among the most recognizable, high-quality products in the haircare and hairstyling industry" (Compl. ¶7).

Key Claims at a Glance

• The complaint asserts the single claim of the D1,028,527 patent.
• The claim covers "The ornamental design for the hair brush, as shown and described" (D1,028,527 Patent, p. 3). In a design patent, the claim protects the overall visual appearance of the article as illustrated in the patent's drawings.

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are hairbrushes, referred to as the "Infringing Products," allegedly made, used, and sold by the defendants without a license from the plaintiff (Compl. ¶3).

Functionality and Market Context

• The complaint alleges that defendants sell the accused hairbrushes through "fully interactive, e-commerce stores" on platforms such as Amazon, eBay, AliExpress, and Temu (Compl. ¶¶2, 13). The infringement allegation is based on the products' visual appearance, not their mechanical function. The complaint alleges that defendants design their online stores to appear as authorized retailers to "unknowing consumers" (Compl. ¶16). The complaint includes a perspective view of the patented design, which it alleges the accused products copy (Compl. p. 4, FIG. 1).

IV. Analysis of Infringement Allegations

The complaint does not contain a formal claim chart. Instead, it alleges that the accused products are "the same product that infringes directly and/or indirectly the Bounce Curl Design" (Compl. ¶22). The central infringement theory is that the accused products are visual copies of the design claimed in the ’527 patent. For a design patent, the legal test for infringement is whether an "ordinary observer," familiar with the prior art, would be deceived into believing the accused design is the same as the patented design.

• Identified Points of Contention:
  • Scope Questions: The primary question will be factual: is the ornamental design of the defendants' accused products "substantially the same" as the design depicted in the figures of the ’527 patent? The analysis will focus on the overall visual appearance rather than a list of discrete elements.
  • Technical Questions: A key evidentiary challenge for the plaintiff will be to produce the accused products or high-quality photographs sufficient to allow for a side-by-side visual comparison with the patented design as depicted, for example, in the patent's perspective view (D1,028,527 Patent, FIG. 1).

V. Key Claim Terms for Construction

Formal claim construction of written terms is atypical in design patent litigation, as the claim is understood to be defined by the drawings. The controlling legal inquiry is not the definition of a word but the overall visual impression of the claimed design. The dispositive issue will likely be the application of the "ordinary observer" test to the accused products, rather than a debate over the meaning of any particular term. The complaint does not provide sufficient detail for analysis of any specific terms.

VI. Other Allegations

• Indirect Infringement: The complaint includes a conclusory allegation of indirect infringement (Compl. ¶26) and aiding and abetting (Prayer for Relief ¶1(b)). The factual basis for such a claim may rest on allegations that the defendants operate as an interrelated network, sharing tactics for evading detection and participating in online forums discussing such strategies (Compl. ¶¶19-20).
• Willful Infringement: Willfulness is explicitly alleged (Compl. ¶23). The complaint asserts that defendants acted "knowingly and willfully" and without authorization from the plaintiff (Compl. ¶22). This allegation may be supported by claims that defendants use false identities and other tactics to conceal their operations, which could be argued as evidence of knowledge of wrongdoing (Compl. ¶¶12, 17-18).

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

• A core issue will be one of visual identity: From the perspective of an ordinary observer, is the overall ornamental appearance of the accused hairbrushes substantially the same as the specific design claimed in the D1,028,527 patent?
• A key procedural question will be one of enforcement and evidence: Can the plaintiff successfully leverage the court's authority to identify the anonymous defendants, establish jurisdiction, and obtain sufficient evidence of the accused products to prove infringement and secure a meaningful remedy against entities allegedly operating from foreign jurisdictions?