DCT
3:23-cv-04770
Azurous Inc v. Kennedy Intl Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Azurous, Inc. d/b/a Cabeau (Wyoming)
- Defendant: Kennedy International Inc. (New Jersey)
- Plaintiff’s Counsel: Volpe Koenig
- Case Identification: 3:23-cv-04770, D.N.J., 08/17/2023
- Venue Allegations: Venue is asserted based on Defendant being a New Jersey corporation with its principal place of business within the district.
- Core Dispute: Plaintiff alleges that Defendant’s travel pillow product infringes its design patent for a travel pillow.
- Technical Context: The dispute is in the consumer travel accessories market, specifically concerning the ornamental design of ergonomic neck pillows.
- Key Procedural History: The complaint alleges that Plaintiff has marked its own products with the patent number since at least October 2010, a fact that may be relevant to willfulness and damages calculations.
Case Timeline
| Date | Event |
|---|---|
| 2010-01-15 | D'402 Patent Application Filing Date |
| 2010-07-13 | D'402 Patent Issue Date |
| 2010-10-04 | Alleged start of Plaintiff's product marking with patent |
| 2023-08-17 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Design Patent No. D619,402 ("the D’402 Patent"), "Travel Pillow," issued July 13, 2010.
The Invention Explained
- Problem Addressed: The complaint does not explicitly state a technical problem but implies that prior travel pillows lacked the "advanced design," "sophistication and quality" of the Plaintiff's product, which it claims "revolutionized the market" (Compl. ¶¶ 7-8).
- The Patented Solution: The D’402 Patent protects the specific "ornamental design for a travel pillow" (D’402 Patent, Claim). The claimed design, illustrated in the patent’s figures, consists of a generally U-shaped pillow with several distinct ornamental features, including prominently raised rear and side cushions, a concave arc along the top-rear side, and a front closure mechanism (D’402 Patent, Figs. 1, 6; Compl. ¶23).
- Technical Importance: The complaint alleges that this particular design was a "breakthrough" and a "clever design" that became a "ubiquitous best-selling product" (Compl. ¶8).
Key Claims at a Glance
- Design patents contain a single claim. The asserted claim is for "the ornamental design for a travel pillow, as shown and described" (D’402 Patent, Claim).
- The scope of the claim is defined by the visual appearance of the pillow as depicted in the patent's drawings. Key visual elements which the complaint highlights as part of the overall design include:
- A U-shaped design with prominently raised side cushions
- A soft, velvety covering
- A concave arc along the top-rear side
- An adjustable click-based clasp (Compl. ¶23).
III. The Accused Instrumentality
Product Identification
- Defendant’s "G-Force 4 Piece Travel Neck Pillow Set" (Compl. ¶19).
Functionality and Market Context
- The complaint alleges the accused product is a travel pillow that infringes the D’402 patent by embodying its claimed ornamental design (Compl. ¶19). The complaint characterizes the alleged copying as "so pervasive that the G-Force 4 piece travel pillow appears to be an actual Cabeau product" (Compl. ¶20). A side-by-side visual comparison provided in the complaint shows the patented design next to the accused product. (Compl. ¶21, Fig. 1 of the D'402 Patent and Kennedy's G-Force pillow). This visual evidence is central to the infringement allegation, intended to demonstrate substantial similarity to an ordinary observer (Compl. ¶21). A second side-by-side comparison shows a top-plan view of both designs. (Compl. ¶21, Fig. 6 of the D'402 Patent and Kennedy's G-Force pillow).
IV. Analysis of Infringement Allegations
Claim Chart Summary
In a design patent case, infringement is assessed by comparing the overall ornamental appearance of the claimed design with the accused product. The following table breaks down the core allegations by comparing key visual features.
| Claimed Ornamental Feature (from D'402 Patent) | Alleged Infringing Feature (from Kennedy's Pillow) | Complaint Citation | Patent Citation |
|---|---|---|---|
| The overall ornamental design for a travel pillow as shown in the patent figures. | The complaint alleges the accused G-Force pillow has appropriated the overall ornamental design shown and described in the patent. | ¶41 | Figs. 1-14 |
| U-shaped configuration with raised rear and side cushions. | The accused pillow is alleged to have a U-shaped design with similarly raised side and rear portions, creating a comparable visual impression. | ¶21, ¶23 | Figs. 1, 6 |
| Concave arc along the top-rear side. | The accused pillow appears to feature a similar concave shape on its top-rear surface. | ¶21, ¶23 | Fig. 6 |
| Front closure mechanism with dual cords and a toggle/clasp. | The accused pillow features a front closure mechanism with dual cords and a clasp, which the complaint alleges contributes to the overall similarity. | ¶21 | Figs. 1, 6 |
Identified Points of Contention
- Scope Questions: The central question for infringement will be the application of the "ordinary observer" test. The court will need to determine whether an ordinary observer, familiar with the prior art, would be deceived into purchasing the accused product believing it to be the product embodying the patented design (Compl. ¶42).
- Technical Questions: A key question is whether the visual similarities between the products are substantial enough to outweigh any minor differences in proportion, texture, or the specific design of the front clasp. The complaint asserts that the accused pillow "so closely resembles the invention" that an observer would be deceived (Compl. ¶43).
V. Key Claim Terms for Construction
In design patent litigation, claim construction focuses on the overall visual impression of the design as depicted in the patent's figures, rather than on specific textual terms. The primary "construction" issue is determining the scope of the claimed design as a whole and separating ornamental features from any that are purely functional.
- The Term: The scope of the "ornamental design for a travel pillow."
- Context and Importance: The scope of protection is critical. The infringement analysis will depend on which visual features are considered ornamental and protected, and which, if any, are deemed dictated by function and thus excluded from the scope of the design patent.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: Plaintiff may argue that the overall combination of features—the raised sides, the rear arc, the specific shape of the U-opening, and the front clasp—creates a singular, distinctive visual impression protected by the patent, and that minor variations do not alter this overall look (Compl. ¶42). The complaint asserts that the design is "non-functional" and achieves a "desired aesthetic effect" (Compl. ¶24).
- Evidence for a Narrower Interpretation: A defendant may argue that certain elements, such as the U-shape or raised sides, are primarily functional for providing neck support and are common in the field. If successful, this argument could narrow the scope of the patent to only the particular aesthetic combination of these elements, potentially allowing for more design-around possibilities. The patent itself disclaims, via broken lines, an "electronic device" shown in one figure, indicating a clear boundary between the claimed design and unclaimed elements (D’402 Patent, Description).
VI. Other Allegations
- Indirect Infringement: The complaint alleges that Kennedy knowingly induced infringement by "marketing, selling, supporting sales, and/or distributing infringing travel pillows" to its customers, such as manufacturers and retailers (Compl. ¶46).
- Willful Infringement: Willfulness is alleged based on the theory that Kennedy "willfully copied Cabeau's innovative design" (Compl. ¶19). The complaint further alleges that Kennedy had at least constructive notice of the D’402 Patent "since at least as early as October 4, 2010," due to Plaintiff’s consistent marking of its own products (Compl. ¶45).
VII. Analyst’s Conclusion: Key Questions for the Case
- A central issue will be the application of the "ordinary observer" test: are the overall ornamental designs of the patented pillow and the accused G-Force pillow substantially the same, such that an ordinary observer, giving the attention a purchaser usually gives, would be deceived into believing the accused product is the patented one?
- A key question for determining the scope of the patent will be functionality: to what extent are the claimed design features, such as the raised side cushions, dictated by utilitarian function versus ornamental appearance? The court's determination on this issue will directly impact the breadth of the patent's protection.
- An important question for damages will be willfulness: does the allegation of product marking since 2010, combined with the assertion of "pervasive" copying, provide a sufficient basis to establish pre-suit knowledge and support a finding that Defendant's alleged infringement was willful?