DCT
2:24-cv-07273
Global Trademarks Inc v. Zhao
Key Events
Amended Complaint
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Global Trademarks Inc., A & H Sportswear Co Inc., Mainstream Swimsuits Inc., and Miracle Ventures Inc. (collectively "Swim USA") (Nevada/Pennsylvania)
- Defendant: Liming Zhao et al. (collectively "Cupshe Defendants") (California/New Jersey/People's Republic of China)
- Plaintiff’s Counsel: Massoud & Pashkoff, LLP; Sailfish Law LLC
- Case Identification: 2:24-cv-07273, D.N.J., 07/25/2024
- Venue Allegations: Venue is asserted based on the defendants having regular places of business in the District of New Jersey and having committed alleged acts of infringement in the district.
- Core Dispute: Plaintiffs allege that Defendants’ swimwear products infringe nine of Plaintiffs' U.S. design patents and associated trade dress rights.
- Technical Context: The dispute centers on the ornamental designs of women's one-piece swimsuits, a highly competitive segment of the fashion and apparel industry.
- Key Procedural History: This action is an Amended Complaint. The complaint does not reference any prior litigation or administrative proceedings concerning the patents-in-suit.
Case Timeline
| Date | Event |
|---|---|
| 2011-01-01 | First use alleged for "Jena" design |
| 2012-01-01 | First use alleged for "Mystify" design |
| 2012-08-02 | Application filed for D730,620 Patent |
| 2013-05-23 | Application filed for D706,019 Patent |
| 2014-06-03 | U.S. Patent No. D706,019 issues |
| 2015-01-01 | First use alleged for "Harper" design |
| 2015-06-02 | U.S. Patent No. D730,620 issues |
| 2015-09-02 | Application filed for D795,531 Patent |
| 2017-01-01 | First use alleged for "Odyssey" and "Criss-Cross Escape" designs |
| 2017-08-29 | U.S. Patent No. D795,531 issues |
| 2017-11-01 | Application filed for D849,365 Patent |
| 2017-11-01 | Application filed for D866,123 Patent |
| 2018-01-01 | First use alleged for "Esmerelda" design |
| 2019-05-28 | U.S. Patent No. D849,365 issues |
| 2019-11-12 | U.S. Patent No. D866,123 issues |
| 2020-01-01 | First use alleged for "Azura" design |
| 2021-01-01 | First use alleged for "Wrapture" and "Europa" designs |
| 2021-08-09 | Application filed for D1,017,190 Patent |
| 2021-08-09 | Application filed for D1,022,404 Patent |
| 2022-06-28 | Application filed for D1,020,175 Patent |
| 2022-06-28 | Application filed for D1,028,418 Patent |
| 2024-03-12 | U.S. Patent No. D1,017,190 issues |
| 2024-04-02 | U.S. Patent No. D1,020,175 issues |
| 2024-04-16 | U.S. Patent No. D1,022,404 issues |
| 2024-05-28 | U.S. Patent No. D1,028,418 issues |
| 2024-07-25 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. D730,620 - Swimsuit
The Invention Explained
- Problem Addressed: The complaint does not specify a technical problem, but rather alleges the patents protect "innovative swimsuit designs" resulting from "substantial investment in original design development" (Compl. ¶¶52, 54). Design patents protect ornamental appearance rather than functional solutions.
- The Patented Solution: The ’620 Patent claims the ornamental design for a swimsuit, referred to in the complaint as the “Jena” design (Compl. ¶51). The design features an asymmetrical, one-shoulder silhouette with multiple bands of shirred or ruched fabric that wrap diagonally across the torso (D’620 Patent, FIG. 1).
- Technical Importance: The complaint alleges that Plaintiffs' designs have achieved "widespread recognition" and "commercial success," positioning them as leaders in the swimwear industry (Compl. ¶¶25, 51).
Key Claims at a Glance
- The patent contains a single claim for "the ornamental design for a swimsuit, as shown and described" (D’620 Patent, Claim).
- The scope of the claim is defined by the visual appearance of the swimsuit as depicted in the patent’s figures, including:
- A front view showing an asymmetrical shoulder strap and diagonally wrapped, shirred fabric bands.
- Rear, left-side, and right-side views showing the continuation of the design.
U.S. Patent No. D706,019 - Swimsuit
The Invention Explained
- Problem Addressed: Similar to the ’620 Patent, the objective is the creation of a new, original, and ornamental design for an article of manufacture (Compl. ¶57).
- The Patented Solution: The ’019 Patent claims an ornamental design for a swimsuit, identified in the complaint as the “Mystify” design (Compl. ¶51). The design features a crossover, surplice-style bodice with shirred fabric, below which are two additional shirred fabric bands that wrap diagonally across the waist and hip area in opposing directions (D’019 Patent, FIG. 1). The design also includes triangular inserts between the fabric bands (Compl. ¶51).
- Technical Importance: The complaint alleges that this design is one of Plaintiffs' "most successful and distinctive swimsuit designs" (Compl. ¶2).
Key Claims at a Glance
- The patent contains a single claim for "the ornamental design for a swimsuit, as shown and described" (D’019 Patent, Claim).
- The claim’s scope is defined by the visual representations in the patent’s figures, which illustrate:
- A front view showing the crossover bust, two opposing diagonal shirred bands at the waist, and triangular inserts.
- Rear, left-side, and right-side views that define the overall three-dimensional appearance.
U.S. Patent No. D795,531 - Swimsuit
- Technology Synopsis: The ’531 Patent, referred to as the “Harper” design, claims the ornamental design for a swimsuit (Compl. ¶¶51, 185). The complaint does not provide a textual description, but the associated patent figures show a design with criss-cross shirred fabric over the bust and additional shirred bands wrapping across the midsection (D’531 Patent, FIG. 1).
- Asserted Claims: The ornamental design for a swimsuit, as shown and described.
- Accused Features: The complaint accuses Defendants’ “‘Harper’ knock-offs” of embodying a design substantially the same as that claimed in the ’531 Patent (Compl. ¶¶189-190).
U.S. Patent No. D849,365 - Swimsuit
- Technology Synopsis: The ’365 Patent, referred to as the “Odyssey” design, claims the ornamental design for a swimsuit featuring a plunging v-neck, a horizontal “waistband” area below the bust, and three partitioned vertical sections below the waistband (Compl. ¶¶51, 200).
- Asserted Claims: The ornamental design for a swimsuit, as shown and described.
- Accused Features: The complaint alleges that Defendants’ “‘Odyssey’ knock-offs” infringe by embodying a substantially similar design (Compl. ¶¶204-205).
U.S. Patent No. D866,123 - Swimsuit
- Technology Synopsis: The ’123 Patent, referred to as the “Criss-Cross Escape” design, claims the ornamental design for a swimsuit with a narrow, vertical plunge at the neckline and diagonally overlapping, symmetrically mirrored bodice panels that criss-cross at the center (Compl. ¶¶51, 215).
- Asserted Claims: The ornamental design for a swimsuit, as shown and described.
- Accused Features: The complaint accuses Defendants’ “‘Criss-Cross Escape’ knock-offs” of infringing the ’123 Patent (Compl. ¶¶219-220).
U.S. Patent No. D1,017,190 - Swimsuit
- Technology Synopsis: The ’190 Patent, referred to as the “Esmerelda” design, claims the ornamental design for a swimsuit with a faux-wrap bodice featuring ruching that intensifies as it descends diagonally to an off-center convergence point (Compl. ¶¶51, 230).
- Asserted Claims: The ornamental design for a swimsuit, as shown and described.
- Accused Features: The complaint alleges that Defendants’ “‘Esmerelda’ knock-offs” embody a design substantially the same as that claimed in the ’190 Patent (Compl. ¶¶234-235).
U.S. Patent No. D1,022,404 - Swimsuit
- Technology Synopsis: The ’404 Patent, referred to as the “Azura” design, claims the ornamental design for a swimsuit featuring an asymmetrical one-shoulder top layered over two symmetrical straps and a triangular cut-out at the waist (Compl. ¶¶51, 245).
- Asserted Claims: The ornamental design for a swimsuit, as shown and described.
- Accused Features: The complaint accuses Defendants’ “‘Azura’ knock-offs” of direct infringement of the ’404 Patent (Compl. ¶¶249-250).
U.S. Patent No. D1,020,175 - Swimsuit
- Technology Synopsis: The ’175 Patent, referred to as the “Wrapture” design, claims the ornamental design for a swimsuit where fabric from the left and right bust slopes down to gather and twist at a center point on the lower torso, with shirring around the twist (Compl. ¶¶51, 260).
- Asserted Claims: The ornamental design for a swimsuit, as shown and described.
- Accused Features: The complaint alleges that Defendants’ “‘Wrapture’ knock-offs” infringe the ’175 Patent (Compl. ¶¶264-265).
U.S. Patent No. D1,028,418 - Swimsuit
- Technology Synopsis: The ’418 Patent, referred to as the “Europa” design, claims the ornamental design for a swimsuit with two straps originating from the inner shoulder that intersect and twist at an off-center point above the bust before extending in opposite directions over the bustline (Compl. ¶¶51, 275).
- Asserted Claims: The ornamental design for a swimsuit, as shown and described.
- Accused Features: The complaint accuses Defendants’ “‘Europa’ knock-offs” of direct infringement of the ’418 Patent (Compl. ¶¶279-280).
III. The Accused Instrumentality
Product Identification
- The accused instrumentalities are various "knock-off" women's swimsuits offered for sale, sold, and imported by the Cupshe LLC Defendants (Compl. ¶¶160, 175).
Functionality and Market Context
- The complaint alleges that Defendants manufacture and sell "cheaper and inferior quality swimwear" that copies Plaintiffs' patented designs (Compl. ¶122). These products are sold directly to consumers through the website www.cupshe.com and other online platforms like Amazon and Walmart (Compl. ¶¶93-94). The complaint provides visual evidence comparing Plaintiffs' patented designs to photographs of the accused swimsuits. The complaint presents a side-by-side photographic comparison between a swimsuit embodying the patented "Jena" design and an accused "knock off" (Compl. ¶158; Ex. 5b).
IV. Analysis of Infringement Allegations
The core of a design patent infringement analysis is the "ordinary observer" test, which asks whether an ordinary observer, familiar with the prior art designs, would be deceived into purchasing the accused design believing it to be the patented one. The complaint alleges for each patent that the accused designs are "substantially the same" as the patented designs in the eye of such an observer (e.g., Compl. ¶¶159, 174).
D730,620 Infringement Allegations
| Claim Element (from the sole claim) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| The ornamental design for a swimsuit, as shown and described. | The accused "Jena" knock-off swimsuits allegedly embody a design that is "substantially the same" as the patented design, featuring an asymmetrical one-shoulder strap and diagonal shirred fabric bands, creating a confusingly similar overall visual impression. The complaint provides an illustration comparing the designs. | ¶158-161 | FIGS. 1-4 |
D706,019 Infringement Allegations
| Claim Element (from the sole claim) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| The ornamental design for a swimsuit, as shown and described. | The accused "Mystify" knock-off swimsuits allegedly embody a design that is "substantially the same" as the patented design, featuring a crossover bust and opposing diagonal fabric bands at the waist. An illustrative comparison is provided to support this allegation. | ¶173-176 | FIGS. 1-4 |
Identified Points of Contention
- Scope Questions: Since design patents protect ornamental features, a potential question for the court is whether any differences between the patented designs and the accused products are significant enough to alter the overall visual impression for an ordinary observer.
- Technical Questions: The central question is not technical but aesthetic: to what degree do specific features of the accused products (e.g., the angle of the fabric draping, the density of the shirring, the precise shape of the neckline) replicate the overall ornamental appearance claimed in the patents? The complaint alleges the resemblance is deceptive (Compl. ¶159).
V. Key Claim Terms for Construction
The complaint does not provide sufficient detail for an analysis of specific claim terms. In design patent litigation, the claim is understood to be the design as depicted in the patent's drawings. Claim construction, in the sense of defining textual terms, is generally not a central issue. The analysis focuses on the overall visual appearance of the claimed design compared to the accused product. The primary dispute will likely concern the application of the ordinary observer test to the designs as a whole, rather than the construction of any particular term.
VI. Other Allegations
- Indirect Infringement: The complaint alleges that individual defendant Liming Zhao "willingly, knowingly, intentionally and actively assisted and induced" the corporate defendants to engage in the infringing activities (Compl. ¶117).
- Willful Infringement: Willfulness is alleged for all asserted patents. The complaint bases this on Defendants' alleged "actual or constructive knowledge" of Plaintiffs' patent rights, gained through access to the patented products via retail and online channels, and on Defendants' alleged continuation of infringing conduct after being notified of their infringement (Compl. ¶¶66, 164, 165).
VII. Analyst’s Conclusion: Key Questions for the Case
This case appears to center on the alleged systematic copying of ornamental designs in the commercial swimwear market. The resolution will likely depend on the answers to two key questions:
- A primary issue will be one of visual similarity: Would an ordinary observer, giving the attention a typical consumer would, perceive the overall ornamental design of the accused Cupshe LLC swimsuits to be substantially the same as the designs depicted in the figures of the nine asserted patents?
- A second critical question will be one of intent and knowledge: Do the facts alleged—specifically, the asserted copying of numerous distinct designs and the continuation of sales after notice—support a finding of willful infringement, which could expose Defendants to claims for enhanced damages and attorneys' fees?