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-11901, N.D. Ill., 11/19/2024
• Venue Allegations: Venue is asserted based on Defendants' operation of interactive e-commerce stores that directly target and make sales to consumers in Illinois.
• Core Dispute: Plaintiff alleges that hairbrushes sold by numerous unidentified e-commerce operators infringe Plaintiff's design patent for a hairbrush.
• Technical Context: The dispute is in the consumer hair care and personal grooming product industry, focusing on the ornamental design of a hairbrush.
• Key Procedural History: The complaint is structured as an action against a schedule of unidentified defendants, a common strategy for enforcing intellectual property against networks of online sellers, often based overseas. The complaint seeks relief not only against the direct infringers but also against the third-party online marketplace platforms hosting them.

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: Design patents do not solve technical problems in the manner of utility patents; rather, they protect the novel, non-obvious, and ornamental appearance of an article of manufacture (Compl. ¶9). The patent sought to create a new and unique ornamental design for a hairbrush.
• The Patented Solution: The patent protects the specific visual appearance of a hairbrush. Key ornamental features include a brush head with distinct rows of bristles, scalloped or undulating side edges, a tapered handle, and a specific profile view combining these elements ('527' Patent, FIGS. 1-7). The perspective view in Figure 1, reproduced in the complaint, illustrates the overall design aesthetic, combining the bristle pattern, head shape, and handle into a single visual impression (Compl. p. 4; '527 Patent, FIG. 1).
• Technical Importance: The complaint alleges that Plaintiff's products are known for their "distinctive patented designs," which are "widely recognized by consumers" and "symbolize high quality" (Compl. ¶¶ 7, 9).

Key Claims at a Glance

• The patent contains a single claim: "The ornamental design for the hair brush, as shown and described." ('527 Patent, Claim).
• The scope of this claim is defined by the seven figures in the patent, which depict the design from perspective, top, bottom, front, back, right side, and left side views ('527 Patent, Description).

III. The Accused Instrumentality

Product Identification

• The accused instrumentalities are hairbrushes, referred to as the "Infringing Products," allegedly sold by Defendants through e-commerce stores operating under various "Seller Aliases" on platforms such as Amazon, eBay, AliExpress, Temu, and others (Compl. ¶¶ 3, 13).

Functionality and Market Context

• The complaint alleges that the Infringing Products are "the same unauthorized and unlicensed product" that infringes the patented design (Compl. ¶3). Plaintiff alleges Defendants use marketing strategies and store designs to make the Infringing Products appear to be authorized goods from the Plaintiff, thereby deceiving consumers (Compl. ¶16). The complaint states that the hairbrush is shown in "Exhibit 1," but this exhibit was not included in the publicly filed document (Compl. ¶3). The complaint reproduces figures from the patent itself to illustrate the "Bounce Curl Design" that is allegedly infringed (Compl. pp. 4-5).

IV. Analysis of Infringement Allegations

The complaint makes a general allegation of infringement rather than providing a detailed claim chart. Infringement of a design patent is determined by the "ordinary observer" test, which asks whether an ordinary observer would believe the accused design is the same as the patented design. The analysis below breaks down the single design claim into its key ornamental features as depicted in the patent and referenced in the complaint.

'527 Patent Infringement Allegations

• Identified Points of Contention:
  • Evidentiary Questions: A primary issue will be establishing that the products sold by the various unidentified Defendants are, in fact, visually identical or "substantially the same" as the design claimed in the '527 Patent. The case will depend on the evidence, such as the product shown in the missing Exhibit 1, presented to the court.
  • Scope Questions: As in many design patent cases, the dispute may focus on the overall visual impression rather than specific features. The question for the court will be whether the resemblance between the accused products and the patented design is "such as to deceive" an ordinary observer, inducing a purchase based on the design similarity.

V. Key Claim Terms for Construction

In design patent litigation, the claim is typically not construed in the same manner as a utility patent. The "claim" is understood to be the design itself, as depicted in the patent's drawings. The analysis focuses on a comparison of the accused product's design to the patented design from the perspective of an ordinary observer. Therefore, there are no specific textual "terms" from the claim that require judicial construction. The scope of the patent is defined by the visual content of Figures 1-7.

VI. Other Allegations

• Indirect Infringement: The complaint makes a passing allegation that Defendants infringe "directly and/or indirectly" and the prayer for relief requests an injunction against "aiding, abetting, [or] contributing to" infringement (Compl. ¶26; Prayer for Relief ¶1(b)). However, the factual allegations focus on Defendants' own acts of making, using, offering for sale, selling, and importing the accused hairbrushes, which constitute direct infringement (Compl. ¶22).
• Willful Infringement: The complaint alleges that Defendants' infringement was "willful" (Compl. ¶23). This allegation is based on the assertion that Defendants "knowingly and willfully" imported, offered for sale, and sold products that infringe the patented design without authorization from the Plaintiff (Compl. ¶22).

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

1. Procedural Efficacy: A central challenge will be procedural: can the Plaintiff successfully use the "Schedule A" complaint structure to identify the anonymous sellers, establish jurisdiction, and obtain effective relief (such as asset freezes and delisting orders from third-party platforms) against a diffuse network of overseas operators?
2. Infringement Standard: The core substantive question will be one of visual comparison: assuming the accused products are put into evidence, will an ordinary observer find their design "substantially the same" as the ornamental design depicted in the '527 Patent? The outcome will depend entirely on this visual assessment.
3. Scope of Remedy: Given the allegation that Defendants operate as a network to evade enforcement, a key issue will be the scope of any potential injunction. The Plaintiff's request for an order compelling third-party marketplaces (e.g., Amazon, Temu) to delist infringing products raises the question of how broadly such an order can and will be crafted to prevent future infringement by the same or related entities.