3:19-cv-16075
Bombshell Sportswear LLC v. Lamera Sportswear
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Bombshell Sportswear LLC (California)
- Defendant: LaMera Sportswear (New Jersey)
- Plaintiff’s Counsel: Call & Jensen; ECKERT SEAMANS CHERIN & MELLOTT, LLC
- Case Identification: 3:19-cv-16075, D.N.J., 07/30/2019
- Venue Allegations: Venue is alleged to be proper in the District of New Jersey because a substantial part of the events giving rise to the claims occurred in the district and Defendant’s principal place of business is located in Monmouth County, New Jersey.
- Core Dispute: Plaintiff alleges that Defendant’s leggings infringe a design patent for a one-piece legging that creates the appearance of thigh-high sport socks.
- Technical Context: The dispute is in the field of women's athletic apparel, a market where distinctive aesthetic designs can be a significant commercial driver.
- Key Procedural History: Plaintiff is the exclusive licensee of the asserted patent. The complaint alleges that Plaintiff sent informal and formal cease and desist communications to Defendant prior to filing suit, which Defendant allegedly ignored. The asserted patent is a continuation-in-part of a prior application, which may be relevant for establishing the design's conception date.
Case Timeline
| Date | Event |
|---|---|
| 2015-06-19 | Priority Date for U.S. Design Patent No. D783,232 S |
| 2016-06-06 | Application for U.S. Design Patent No. D783,232 S filed |
| 2017-04-11 | U.S. Design Patent No. D783,232 S Issued |
| 2018-12-23 | Plaintiff allegedly sent informal cease and desist notice |
| 2019-01-04 | Plaintiff allegedly sent formal cease and desist letter |
| 2019-07-30 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. D783,232 S - "Sockpants Garment"
- Issued: April 11, 2017
The Invention Explained
- Problem Addressed: The complaint suggests a need for distinctive and fashionable exercise apparel with a "signature style" (Compl. ¶6). The specific design goal was to create "one-piece leggings that create the appearance of sport socks worn over leggings" (Compl. ¶7).
- The Patented Solution: The patent claims the ornamental design for a "sockpants garment" ('232 Patent, Claim). The design, depicted in Figures 1-7, is for a unitary, full-length legging that incorporates a visual change in the leg portion to create the look of a separate, thigh-high sock being worn over the legging ('232 Patent, Figs. 1-7). The complaint provides representative images of the product embodying the design, which features horizontal stripes on the "sock" portion above the knee (Compl. p. 3).
- Technical Importance: The design offered a novel aesthetic in the competitive athleisure market by combining the look of two separate apparel items into a single garment (Compl. ¶7).
Key Claims at a Glance
- The single claim of the '232 Patent is for "The ornamental design for a sockpants garment, as shown and described." ('232 Patent, Claim).
- The essential ornamental features of the claimed design include:
- The overall visual appearance of a unitary, full-length pair of leggings.
- A visual demarcation on each leg, creating the appearance of a thigh-high sock.
- A series of three horizontal stripes located on the "sock" portion, positioned above where the wearer's knee would be.
III. The Accused Instrumentality
Product Identification
"Knock-off versions" of Plaintiff's "Sock Leggings" sold by Defendant LaMera Sportswear through its online store (Compl. ¶11).
Functionality and Market Context
The accused products are women's athletic leggings (Compl. ¶10). The complaint alleges these products are "knock-offs" that mimic the ornamental design of Plaintiff's patented apparel (Compl. ¶11). The complaint includes several images of the accused "LaMera Knock-offs," which depict leggings with a two-tone design creating the appearance of thigh-high socks with horizontal stripes above the knee (Compl. p. 4). Plaintiff alleges Defendant capitalizes on trends in athletic attire by selling such products (Compl. ¶10).
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 believing the accused design is the same as the patented design. The complaint alleges that the accused products are "substantially the same as the patented designs" (Compl. ¶17).
D'232 Patent Infringement Allegations
| Claimed Ornamental Feature (from D'232 Patent) | Alleged Infringing Design Feature | Complaint Citation | Patent Citation |
|---|---|---|---|
| The overall ornamental design for a "sockpants garment" as shown in the patent figures. | Defendant's products are alleged to be "knock-off versions" that are "substantially the same" as the patented design in the eye of an ordinary observer. | ¶11, ¶17 | Claim; Figs. 1-7 |
| A unitary legging with the appearance of a thigh-high sock. | The accused products are one-piece leggings that use a color change to create the visual effect of a thigh-high sock. | p. 4 | Figs. 1, 3, 4, 7 |
| A set of horizontal stripes on the "sock" portion, located above the knee area. | The accused products feature two or three horizontal stripes on the upper part of the "sock" portion. | p. 4 | Figs. 1, 3, 4, 7 |
Identified Points of Contention
- Scope Questions: The central question for the court will be whether an ordinary observer would find the overall visual impression of the LaMera leggings to be "substantially the same" as the D'232 patent's design. The analysis will focus on the overall appearance rather than a side-by-side comparison of minor details.
- Design Questions: The complaint's images of the accused products show some variations, such as one version with two stripes and another with three, whereas the patent figures consistently show three stripes ('232 Patent, Fig. 1; Compl. p. 4). A potential issue for the court is whether these minor differences are sufficient to distinguish the designs in the mind of an ordinary observer, or if the overall "sock-over-legging" look with stripes in the same location creates a deceptive resemblance.
V. Key Claim Terms for Construction
In a design patent case, claim construction does not focus on interpreting textual terms as it does in utility patent litigation. The "claim" is for the design itself, "as shown and described" ('232 Patent, Claim). The analysis, therefore, centers on the scope of the claimed design as a whole, as depicted in the patent's drawings.
The key issue for the court will not be construing a specific word, but rather determining the overall visual impression created by the solid lines in the patent's figures. The interpretation will focus on the gestalt of the design—the combination of the full-length legging, the thigh-high sock demarcation, and the placement of the horizontal stripes—and comparing that overall look to the accused products.
VI. Other Allegations
Willful Infringement
The complaint alleges willful infringement. The basis for this claim is Defendant's alleged continuation of infringing conduct after receiving notice of its infringement from Plaintiff (Compl. ¶12-13). The complaint states Plaintiff provided an informal notice on December 23, 2018, followed by a formal cease and desist letter from its attorney on January 4, 2019, both of which were allegedly ignored by Defendant (Compl. ¶12).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of visual similarity: Applying the "ordinary observer" test, is the overall ornamental appearance of Defendant's leggings "substantially the same" as the design claimed in the D'232 patent, such that a typical consumer would be deceived into purchasing one believing it to be the other?
- A key question will be the materiality of design differences: To what extent can small variations between the accused products and the patented design, such as a different number of stripes, distinguish the products and defeat a claim of infringement when the overall concept and primary design elements appear to be the same?