Zhu v. Partnerships Unincorp Associations In Schedule A

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: H Zhu (China)
  • Defendant: The Partnerships and Unincorporated Associations Identified in Schedule “A”
  • Plaintiff’s Counsel: D&A|RM DeWitty, U.S. Pat. Atty., LLC
• Case Identification: 1:25-cv-02366, N.D. Ill., 03/21/2025
• Venue Allegations: Venue is based on allegations that Defendants operate interactive commercial websites that target and sell products to consumers in Illinois.
• Core Dispute: Plaintiff alleges that Defendants’ online stores sell brushes that infringe a U.S. design patent for an ornamental brush design.
• Technical Context: The dispute is in the consumer product sector, specifically concerning the aesthetic design of pet grooming tools sold through online marketplaces.
• Key Procedural History: This Amended Complaint is filed against a group of defendants whose identities are largely concealed, a common feature in enforcement actions against diffuse online sellers. The complaint alleges these sellers use tactics such as operating under fictitious names and using multiple marketplace accounts to evade enforcement.

Case Timeline

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

U.S. Design Patent No. D1,020,133 S - "Brush for Animals," issued March 26, 2024

The Invention Explained

• Problem Addressed: Design patents protect ornamental appearance rather than functional solutions. The patent does not describe a technical problem but instead presents a new, original, and ornamental design for an article of manufacture. (D’133 Patent, p. 1).
• The Patented Solution: The patent protects the specific visual appearance of a brush for animals as depicted in its seven figures. (D’133 Patent, CLAIM). The design's overall impression is characterized by a teardrop or paisley-like body shape, a top surface covered with an array of conical bristles, a smooth, curved underside, and a peripheral edge with a textured band. (D’133 Patent, Figs. 1-7). Key features contributing to the unique aesthetic include the specific arrangement of bristles, a central circular port on the bristle face, and a charging port integrated into the narrow end of the body. (D’133 Patent, Fig. 1, 7).
• Technical Importance: The complaint alleges the Plaintiff was the first to market this specific design and has established a reputation for quality associated with it. (Compl. ¶5).

Key Claims at a Glance

The patent contains a single claim, which is typical for a design patent.

The claim protects "The ornamental design for a brush for animals, as shown and described." (D’133 Patent, CLAIM). The scope of this claim is defined by the visual appearance of the brush as illustrated in the patent's drawings. The key ornamental elements depicted are:

• The overall paisley-like, asymmetrical body shape.
• The top surface populated with an array of conical, flexible-appearing bristles.
• A central, circular recessed feature on the bristle surface.
• A smooth, convex bottom surface.
• A textured band around the side periphery of the device.
• A small port located on the bottom edge at the wider end of the teardrop shape.

III. The Accused Instrumentality

Product Identification

The complaint identifies the accused instrumentalities as "unlicensed product[s]" and "Infringing Products" that are sold, offered for sale, and/or imported by the Defendants through their "Internet Stores" on various online marketplace platforms. (Compl. ¶3, ¶19).

Functionality and Market Context

The complaint alleges that Defendants market and sell the "same infringing product" across numerous online storefronts, creating the impression of being licensed sellers. (Compl. ¶3). These stores are alleged to share common features, such as using the same product images, pricing, and text copied from Plaintiff's original product listings. (Compl. ¶11). The complaint references an image of the claimed design, suggesting the infringement is based on a direct visual correspondence between the patented design and the accused products. (Compl. ¶5). The complaint provides an image of the claimed design from the patent, identified as "Image 1," to represent the product's appearance. (Compl. ¶5, Amended Exhibit B). This image, a perspective view showing the bristle-side of the brush, is identical to Figure 1 of the D'133 patent. (D'133 Patent, Fig. 1).

IV. Analysis of Infringement Allegations

The complaint does not contain a detailed claim chart. It asserts infringement by alleging that Defendants sell products that are a "reproduction, copy, or colorable imitation of the design claimed in the Patented Design." (Prayer for Relief ¶1(a)). The core of the infringement theory is that the accused products are visually indistinguishable from the design protected by the D’133 patent, such that an ordinary observer would be deceived. (Compl. ¶3, ¶19). The complaint alleges the Defendants sell the "same infringing product," suggesting the infringement theory relies on near-identical copying rather than mere similarity. (Compl. ¶3).

• Identified Points of Contention:
  • Evidentiary Question: The central challenge will be evidentiary. As the complaint alleges Defendants are numerous, use fictitious names, and are based abroad, a primary issue will be for the Plaintiff to obtain physical exemplars of the accused products from each Defendant to perform the necessary side-by-side comparison against the D'133 patent's drawings for the "ordinary observer" test.
  • Scope Questions: Should the case proceed to a substantive comparison, a question may arise regarding the scope of the patent's protection in light of the prior art. The patent cites several other brush designs. (D’133 Patent, p. 3, OTHER PUBLICATIONS). A court would need to determine if the D'133 patent's design is sufficiently distinct from this art and whether the accused products are closer to the patented design than to the prior art.

V. Key Claim Terms for Construction

In design patent litigation, the analysis focuses less on construing specific textual claim terms and more on the overall ornamental appearance of the design as shown in the patent drawings. The drawings themselves define the scope of the claim. The phrase "brush for animals" in the claim title provides context for the article of manufacture but is unlikely to be a point of significant dispute, as the accused products are also brushes. The dispositive analysis will not turn on the definition of a word but on a visual comparison between the accused product and the design claimed in the D'133 patent.

VI. Other Allegations

• Indirect Infringement: The prayer for relief includes a request to enjoin Defendants from "aiding, abetting, contributing to, or otherwise assisting anyone in infringing upon the Patented Design." (Prayer for Relief ¶1(b)). However, the factual allegations in the body of the complaint focus on direct infringement (offering for sale, selling, importing) and do not provide specific facts to support a claim for indirect infringement.
• Willful Infringement: The complaint alleges that Defendants' infringement was "knowingly and willfully" committed. (Compl. ¶15, ¶16). The pleading does not allege pre-suit notice was provided to the Defendants. The basis for willfulness appears to stem from the alleged nature of the infringement as direct copying and the alleged tactics used by Defendants to conceal their identities and operations. (Compl. ¶10-13, ¶15).

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

1. Enforcement and Evidence: A primary practical question is one of enforcement and evidence: can the Plaintiff effectively serve, obtain discovery from, and ultimately enforce a judgment against a diffuse and allegedly evasive network of online sellers, and can it obtain product exemplars from each to prove its case?
2. The "Ordinary Observer" Test: The core legal question will be the application of the design patent infringement standard: assuming product exemplars are available, are they "substantially the same" as the D'133 patent's design in the eyes of an ordinary observer, or are there visual differences that, especially in light of the cited prior art, are sufficient to avoid infringement?
3. Damages Calculation: A significant question will involve damages: if infringement is found, can the Plaintiff meet the evidentiary burden of proving the "total profit" made by each infringing defendant, as permitted for design patent infringement under 35 U.S.C. § 289, given the alleged use of offshore accounts and other tactics to obscure financial information? (Compl. ¶13).