DCT
2:19-cv-02005
A&A Global Imports Inc v. CBJ Distributing LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: A&A Global Imports, Inc. (California)
- Defendant: CBJ Distributing LLC d/b/a Cannabiz Supply (Nevada); THC Label Solutions (California)
- Plaintiff’s Counsel: Lewis Roca Rothgerber Christie LLP; Freeman Freeman & Smiley, LLP
- Case Identification: 2:19-cv-02005, D. Nev., 11/19/2019
- Venue Allegations: Venue is alleged to be proper based on Defendant CBJ being a Nevada limited liability company and Defendant THC conducting business in the district from which the claims arise.
- Core Dispute: Plaintiff alleges that Defendants' "Exit Bags" and "Pinch Style Exit Bag" products infringe a design patent and trade dress covering the ornamental appearance of a plastic bag package.
- Technical Context: The dispute centers on child-resistant plastic packaging, a product category with specific regulatory requirements in the growing legal cannabis industry.
- Key Procedural History: Plaintiff alleges it sent a cease-and-desist letter in January 2018, to which Defendants’ counsel responded in March and April 2018 by stating that the accused product had been discontinued and removed from sale. The complaint alleges that Defendants continued to sell the accused products despite these representations, which may form the basis for the willfulness claim.
Case Timeline
| Date | Event |
|---|---|
| 2015-01-23 | ’076 Patent Priority Date (Application Filing) |
| 2016-09-13 | ’076 Patent Issue Date |
| 2018-01-25 | Plaintiff sends cease-and-desist letter to Defendant CBJ |
| 2018-03-13 | Defendant CBJ’s counsel informs Plaintiff product was "immediately discontinued" |
| 2018-04-30 | Defendant CBJ’s counsel confirms product sales had stopped |
| 2019-11-19 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. D766,076 S - "Plastic Bag Package"
- Patent Identification: U.S. Patent No. D766,076 S, "Plastic Bag Package," issued September 13, 2016
The Invention Explained
- Problem Addressed: As a design patent, the patent document itself does not articulate a technical problem. However, the complaint provides context, situating the product in the market for packaging for cannabis products, which is subject to state-level laws requiring certified child-resistant packaging in compliance with federal guidelines and ASTM standards (Compl. ¶¶14-15).
- The Patented Solution: The patent claims the specific ornamental design for a plastic bag package. The protected design, depicted in the patent’s figures, consists of the bag's overall shape and, more specifically, the arrangement of graphical elements on its front face, including a series of icons and a thumbprint-like graphic near the top closure area (’076 Patent, FIGS. 1-2). The patent explicitly states that elements shown in broken lines, such as the bag’s overall rectangular outline, illustrate the environment and do not form part of the claimed design (’076 Patent, Description, col. 1:62-65).
- Technical Importance: The complaint alleges that the bag's design features and overall look serve as a distinctive source identifier for the consuming public (Compl. ¶11).
Key Claims at a Glance
- The single claim of the patent is asserted: "The ornamental design for a plastic bag package, as shown and described."
- The claimed design, as defined by the solid lines in the patent’s figures, includes the following essential ornamental features:
- A horizontal border area at the top of the bag.
- An arrangement of three, generally square-shaped icons on the left side within the border.
- A circular icon containing a thumbprint-like pattern on the right side within the border.
- A zipper-style closure mechanism positioned below the graphical icons.
III. The Accused Instrumentality
Product Identification
- The accused products are Defendants' "Exit Bags" and "Pinch Style Exit Bag," which are collectively referred to as the "CBJ Exit Bags" or "Infringing Bags" (Compl. ¶¶11, 18, 23).
Functionality and Market Context
- The accused products are plastic bags sold through Defendants' websites to customers including cannabis dispensaries (Compl. ¶¶11, 17-18). The complaint includes a screenshot from the "cannabizsupply.com" website showing various "Pinch Style Exit Bag" products offered for sale under the heading "Child Resistant Containers" (Compl. ¶17, p. 5). Plaintiff alleges that these bags are advertised as child-proof and compliant with state regulations but that such representations are false (Compl. ¶¶19-21).
IV. Analysis of Infringement Allegations
The complaint provides a side-by-side visual comparison to support its allegation that the accused product's design is substantially the same as the patented design. A side-by-side photograph comparing the patented design to an "Infringing Product" is included in the complaint to illustrate the alleged similarity (Compl. ¶30, p. 7).
D766,076 Infringement Allegations
| Claim Element (from Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| The ornamental design for a plastic bag package, as shown and described. | The complaint alleges that the accused "Infringing Product" incorporates ornamental features that are substantially the same as the patented design, creating a virtually identical overall visual impression. | ¶30 | col. 1:49-51; FIGS. 1-2 |
| Including the specific arrangement of graphical icons in a top border area. | The accused product features a similar top border area with a series of graphical icons on the left and a circular thumbprint-like icon on the right, allegedly in the same configuration as the patented design. | ¶30 | FIGS. 1-2 |
- Identified Points of Contention:
- Scope Questions: The primary question for design patent infringement is whether an ordinary observer, giving such attention as a purchaser usually gives, would be induced to purchase one believing it to be the other. The dispute will center on whether the visual differences between the accused product and the patent drawings are significant enough to prevent such confusion.
- Technical Questions: The infringement analysis will turn on a direct visual comparison. A key question is whether the specific icons on the accused product, while arranged similarly, are different enough in their particular details from those shown in the ’076 Patent’s figures to be distinguishable to an ordinary observer. The complaint's evidence for this comparison is the side-by-side photograph provided at paragraph 30.
V. Key Claim Terms for Construction
In design patent cases, claim construction is typically limited, as the drawings themselves are paramount. The scope of the claim is defined by what is shown in the solid lines of the patent figures.
- The Term: "ornamental design ... as shown and described"
- Context and Importance: The entire infringement analysis depends on the scope of the design "as shown." Practitioners may focus on whether this term requires a near-exact copy of every solid-line feature in the drawings or if it allows for minor variations so long as the overall visual impression is the same.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: A party might argue that the claim protects the overall "visual gestalt" or commercial impression created by the unique arrangement of elements, not just the precise line-for-line details of each icon. The patent's claim language "as shown and described" could be argued to encompass the overall appearance illustrated in Figures 1 and 2.
- Evidence for a Narrower Interpretation: The patent specification explicitly disclaims the matter shown in broken lines, stating it is "for the purpose of illustrating environment only and form no part of the claimed design" (’076 Patent, col. 1:62-65). A party could argue this implies that all elements depicted in solid lines are material limitations of the claim, and any deviation from them in the accused product is a material difference that avoids infringement.
VI. Other Allegations
- Indirect Infringement: The complaint alleges induced infringement, stating that Defendants knew of the ’076 Patent and, by providing the "Infringing Bags" to third parties like cannabis retailers, encouraged them to use and sell the bags in a manner that constitutes direct infringement (Compl. ¶¶35-36).
- Willful Infringement: Willfulness is alleged based on pre-suit knowledge of the ’076 Patent. The complaint pleads that Plaintiff provided Defendants with actual notice via a cease-and-desist letter on January 25, 2018, and that Defendants continued their allegedly infringing activities even after representing that they had stopped (Compl. ¶¶24-27, 31).
VII. Analyst’s Conclusion: Key Questions for the Case
- A core issue will be one of visual similarity: from the perspective of an ordinary observer, are the ornamental features of the accused bags “substantially the same” as the design claimed in the ’076 Patent, or are the visual differences between the products sufficient to avoid a finding of infringement?
- A key evidentiary question will be one of willful conduct: what evidence will demonstrate that Defendants continued to market and sell the accused bags after receiving actual notice of the ’076 Patent and after providing assurances to Plaintiff that the conduct had ceased? The resolution of this question will be central to the claim for enhanced damages.