DCT
2:25-cv-00319
KISS Nail Products Inc v. Velour Cosmetics Inc
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: KISS Nail Products, Inc. (New York)
- Defendant: Velour Cosmetics, Inc. (Canada)
- Plaintiff’s Counsel: Baker Botts L.L.P.
- Case Identification: 2:25-cv-00319, E.D. Tex., 03/31/2025
- Venue Allegations: Plaintiff alleges venue is proper because Defendant is a foreign corporation. Plaintiff further alleges that Defendant has committed acts of infringement and conducts regular business in the district by offering for sale, selling, and advertising the accused products through retailers such as Ulta Beauty and Sephora, which have physical stores in the district.
- Core Dispute: Plaintiff alleges that Defendant’s self-adhesive false eyelash products infringe a patent related to ready-to-use artificial eyelash extension systems.
- Technical Context: The technology relates to the do-it-yourself (DIY) cosmetics market, specifically addressing simplified application methods for artificial eyelashes.
- Key Procedural History: The complaint alleges that Plaintiff's corresponding commercial products have been marked "patent pending" since December 2022. It further alleges that Defendant knew or should have known of the patent's claims since at least its Notice of Allowance on October 30, 2024. Plaintiff also states it provided Defendant with direct notice of the infringement via a letter dated March 20, 2025, eleven days before filing the complaint.
Case Timeline
| Date | Event |
|---|---|
| 2020-08-21 | ’288 Patent Priority Date (Provisional App. No. 63/068,728) |
| 2022-12-XX | Plaintiff allegedly begins "patent pending" marking on its products |
| 2024-10-30 | U.S. Patent Office issues Notice of Allowance for the '288 Patent |
| 2024-12-24 | ’288 Patent Issues |
| 2025-03-20 | Plaintiff sends notice letter to Defendant |
| 2025-03-31 | Complaint Filed |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Patent No. 12,171,288 - "Ready-To-Use Eyelash Extensions," issued December 24, 2024
The Invention Explained
- Problem Addressed: The patent's background section describes the difficulty and inconvenience of applying conventional artificial eyelashes, which typically require users to separately purchase and apply specialized adhesives to the lash strip before use (’288 Patent, col. 1:21-34). This process can be challenging for inexperienced users.
- The Patented Solution: The invention is an artificial eyelash extension system that is sold with a pre-applied adhesive element. This adhesive is disposed directly onto the eyelash filaments themselves, rather than just on the base or support strip (’288 Patent, col. 2:24-28). As illustrated in Figure 1A, this allows the eyelash system to be applied directly to a user's natural lashes in a position spaced apart from the eyelid, which the patent asserts avoids the pain and skin irritation associated with traditional methods where adhesive is applied to the skin (’288 Patent, col. 2:16-23).
- Technical Importance: This design aims to create a "ready-to-use" product that eliminates the need for separate glue and simplifies the application process, making it more accessible for do-it-yourself (DIY) consumers (’288 Patent, col. 2:56-62).
Key Claims at a Glance
- The complaint asserts independent claims 1 and 19.
- Independent Claim 1: An artificial eyelash extension system comprising:
- a plurality of eyelash filaments, each having a base and a tip;
- a support strip attached to the bases of the eyelash filaments; and
- an adhesive element connected to the support strip and applied to the plurality of the eyelash filaments before the artificial eyelash extension system is packaged for sale to a user,
- wherein the adhesive element is adapted to adhere to natural eyelashes of the user when the artificial eyelash extension system is applied, and
- wherein the adhesive element extends from the support strip along a length of the eyelash filaments.
- Independent Claim 19: An artificial eyelash extension system comprising:
- a plurality of eyelash filaments, each comprising a base and a tip;
- a support strip attached to the bases of the eyelash filaments; and
- an adhesive element disposed on the support strip and disposed on a portion of the plurality of the eyelash filaments that extend outward from the support strip,
- wherein the adhesive element is adapted to adhere to natural eyelashes of the user when the artificial eyelash extension system is applied.
- The complaint also asserts dependent claims 2, 9-13, 15, and 17-18, and reserves the right to assert others (Compl. ¶60).
III. The Accused Instrumentality
Product Identification
- "Velour-Xtensions Self-Stick" and "Velour x CGonzalez Beauty Self-Stick Lash Clusters," collectively referred to as the "Accused Products" (Compl. ¶¶ 4-6).
Functionality and Market Context
- The Accused Products are described as self-adhesive lash clusters sold in various styles (e.g., "Everyday Natural," "Soft & Wispy"), lengths (short, medium, long), and curls (A, B, C) (Compl. ¶¶ 37, 41, 43). The complaint alleges that, critically, an adhesive is applied to each of the lash clusters which is adapted to adhere them to a user's natural lashes (Compl. ¶49). This adhesive is allegedly applied not only to the support material at the base but also to "portions of the plurality of the eyelash filaments in a direction extending away from the support strip" (Compl. ¶50). The complaint includes an image from the product packaging that highlights the product is available in short, medium, and long lengths in a single kit (Compl. ¶42). Another image shows that some kits include a "mini applicator" tool (Compl. ¶40). Plaintiff asserts that Defendant is a direct competitor in the "DIY lash market" and that the Accused Products compete "head-to-head" with Plaintiff's own "imPRESS Falsies" products (Compl. ¶¶ 55-56).
IV. Analysis of Infringement Allegations
The complaint references an exemplary claim chart attached as Exhibit C, which was not provided with the filing. The following summary is based on the narrative infringement allegations for Claim 1.
’288 Patent Infringement Allegations
| Claim Element (from Independent Claim 1) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| a plurality of eyelash filaments, each having a base and a tip; | Each lash cluster of the Accused Products includes a plurality of eyelash filaments, each having a base and a tip. | ¶46 | col. 4:10-15 |
| a support strip attached to the bases of the eyelash filaments; | Each lash cluster has a support material at the bases of the filaments, which includes a base string extending across the bases. | ¶¶47-48 | col. 4:46-49 |
| an adhesive element connected to the support strip and applied to the plurality of the eyelash filaments... | Adhesive is applied to the lash clusters to adhere them to a user's natural lashes. This adhesive is applied to the support material at the bases and also to portions of the filaments. | ¶¶49-50 | col. 4:20-28 |
| wherein the adhesive element is adapted to adhere to natural eyelashes of the user when the artificial eyelash...applied | An adhesive is applied to the lash clusters and is "adapted to adhere the lash clusters to the natural lashes of a user." | ¶49 | col. 11:39-44 |
| wherein the adhesive element extends from the support strip along a length of the eyelash filaments. | In each cluster, "adhesive is applied not only to the support material... but also to portions of the plurality of the eyelash filaments in a direction extending away from the support strip, or support surface." | ¶50 | col. 11:44-46 |
- Identified Points of Contention:
- Scope Questions: A central dispute may arise over the meaning of the claim phrase "adhesive element connected to the support strip" that "extends from the support strip." The complaint alleges adhesive is on the support material and on portions of the filaments extending away from it (Compl. ¶50). The question for the court will be whether this configuration meets the "connected to" and "extends from" limitations. Does the claim require a single, continuous adhesive element that physically begins at the strip and travels outward, or can it be read to cover separate applications of adhesive on the strip and on the filaments?
- Technical Questions: What evidence will show the precise location and nature of the adhesive on the Accused Products? The complaint's allegations are based on "information and belief." Physical inspection and analysis of the accused products will be necessary to determine if the adhesive on the filaments is physically contiguous with any adhesive on the support strip, which will be a key factual question for infringement.
V. Key Claim Terms for Construction
- The Term: "adhesive element connected to the support strip" (Claim 1)
- Context and Importance: The definition of this phrase is critical. If "connected to" is construed to require a direct and continuous physical link, infringement will depend on whether the adhesive on the Accused Product's filaments physically touches the adhesive on its support strip. If it is construed more broadly to mean functionally associated parts of a single system, the infringement case may be stronger. Practitioners may focus on this term because the complaint's own language ("adhesive is applied not only to the support material... but also to portions of the... filaments" (Compl. ¶50)) suggests a potential physical separation that Defendant could exploit.
- Intrinsic Evidence for Interpretation:
- Evidence for a Broader Interpretation: The patent's summary describes the invention as providing an "adhesive element applied to the plurality of the eyelash filaments" without necessarily requiring a physical bridge to the strip in that specific summary statement (’288 Patent, col. 2:25-28). The patent also describes embodiments with "discrete droplets of adhesive" which may suggest that a single, monolithic adhesive body is not required (’288 Patent, col. 4:37-38).
- Evidence for a Narrower Interpretation: The plain language of Claim 1 requires the element to be "connected to" the strip. Claim 19, in contrast, requires an adhesive element "disposed on the support strip and disposed on a portion of the... filaments," which could be interpreted as describing two separate dispositions of adhesive. The difference in language between Claim 1 and Claim 19 may suggest that "connected to" in Claim 1 imposes a more stringent, unitary requirement.
VI. Other Allegations
- Indirect Infringement: The complaint alleges inducement by asserting that Defendant provides "detailed instructions, demonstrations, and support materials" that direct customers on how to apply the Accused Products in an infringing manner (Compl. ¶62). An image from the product packaging showing application instructions is provided as evidence (Compl. ¶62). The complaint also pleads contributory infringement, alleging the Accused Products are a material part of the invention, especially made for infringing use, and are not a staple article of commerce (Compl. ¶63).
- Willful Infringement: Willfulness is alleged based on both pre- and post-suit knowledge. The complaint alleges constructive knowledge dating back to at least October 30, 2024 (the patent's Notice of Allowance date) due to Plaintiff's "patent pending" marking on its own products (Compl. ¶64). It alleges actual, pre-suit knowledge based on a notice letter sent to Defendant on March 20, 2025 (Compl. ¶¶ 53, 64). Continued infringement after this date is alleged to be willful (Compl. ¶66).
VII. Analyst’s Conclusion: Key Questions for the Case
The resolution of this case will likely depend on the court’s determination of two primary issues:
A central issue will be one of claim construction: Does the phrase "adhesive element connected to the support strip" that "extends from" it, as required by Claim 1, necessitate a single, continuous body of adhesive starting at the support strip and moving outward? Or can it be satisfied by separate applications of adhesive on the strip and on the filaments, which are merely part of the same overall product?
A key evidentiary question will be one of factual proof: Assuming a construction is reached, what does a technical analysis of the Accused Products reveal about the precise physical location and composition of their adhesive? The case may turn on microscopic evidence determining whether the adhesive on the filaments is physically contiguous with the adhesive on the support base, or if they are discrete and separate applications.