2:26-cv-07418
TA3 Inc v. Xibor Ltd
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: TA3, Inc. d/b/a TA3 Swim (Delaware)
- Defendant: Xibor Limited d/b/a Berlook (Chinese)
- Plaintiff's Counsel: KJC LAW GROUP, A P.C.
- Case Identification: 2:26-cv-07418, C.D. Cal., 07/08/2026
- Venue Allegations: Venue is asserted based on Defendant being a foreign entity not resident in any U.S. judicial district, and on Defendant's purposeful direction of commercial activities into the Central District of California through its interactive e-commerce website, which targets and fulfills orders for U.S. consumers.
- Core Dispute: Plaintiff alleges that Defendant's one-piece swimsuit infringes a design patent covering the ornamental appearance of a swimsuit featuring a structured bodice and a lace-up back.
- Technical Context: The dispute is set in the competitive women's apparel market, where the unique ornamental design of a garment can be a significant commercial differentiator.
- Key Procedural History: The complaint alleges that Plaintiff provided Defendant with actual notice of the asserted patent and its infringement on February 27, 2025, approximately 16 months before filing the lawsuit.
Case Timeline
| Date | Event |
|---|---|
| 2022-10-24 | '789 Patent Priority Date (Application Filing Date) |
| 2024-08-27 | '789 Patent Issue Date |
| 2025-02-27 | Alleged date of actual notice of infringement to Defendant |
| 2026-07-08 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
U.S. Design Patent No. D1,039,789 - "Swimsuit"
The patent-in-suit is U.S. Design Patent No. D1,039,789, issued on August 27, 2024 (the "'789 Patent").
The Invention Explained
- Problem Addressed: Design patents protect the ornamental appearance of an article of manufacture, rather than a functional solution to a technical problem. The '789 Patent seeks to protect a novel, non-obvious ornamental design for a swimsuit.
- The Patented Solution: The patent claims the specific visual appearance of a one-piece swimsuit, as depicted in solid lines in its figures '789 Patent, claim The design's key ornamental features include a structured bodice with underwire-style cups, a high-cut leg, and a distinctive open back with a corset-style, crisscross lace-up closure '789 Patent, FIG. 1 '789 Patent, FIG. 2 The patent explicitly disclaims the human figure shown in the drawings and any stitching, indicating these elements are not part of the protected design '789 Patent, description
- Technical Importance: The complaint characterizes the underlying design as "award-winning" and "game-changing," suggesting its aesthetic played a key role in the plaintiff's market position Compl. ¶23 Compl. ¶27
Key Claims at a Glance
- The '789 Patent contains a single claim: "The ornamental design for a swimsuit, as shown and described" '789 Patent, col. 2:50-52
- The scope of a design patent claim is defined by its drawings. The key visual elements of the claimed design, as shown in the solid-line portions of the figures, include:
- The overall configuration of a one-piece swimsuit.
- A structured bodice with defined cups.
- A corset-style lace-up closure on an open back.
- Shoulder straps connecting the front bodice to the back.
- A high-cut leg opening.
III. The Accused Instrumentality
Product Identification
The accused product is Defendant's "Cross Back Tummy Control One Piece swimsuit" Compl. ¶29
Functionality and Market Context
The complaint alleges the accused product is a "knock-off" that was "substantially copied" from Plaintiff's "LIFTY®" swimsuit design Compl. ¶27 Compl. ¶29 The product is allegedly made in China, sold in at least five different colors, and imported and sold in the United States via Defendant's commercial website, "www.berlook.com" Compl. ¶7 Compl. ¶29
IV. Analysis of Infringement Allegations
The core of the infringement allegation is that the accused swimsuit is so visually similar to the patented design that it would deceive an ordinary observer Compl. ¶35 To support this, the complaint provides a side-by-side visual comparison. This table juxtaposes a front view of the accused product with the patented design's front view to highlight similarities in the bodice and overall shape Compl. p. 8 A second comparison in the same table focuses on the rear, showing the distinctive lace-up back of the patented design alongside a photograph of the accused product's back Compl. p. 8
'789 Patent Infringement Allegations
| Claim Element (from the claimed design) | Alleged Infringing Functionality | Complaint Citation | Patent Citation |
|---|---|---|---|
| The ornamental design for a swimsuit, as shown and described. | The complaint alleges that the overall appearance of the accused product is "substantially the same" as the patented design, which would cause an ordinary observer to perceive the two designs as the same. | ¶35 | col. 2:50-52 |
| A front view showing a structured bodice with distinct cups. | The complaint's visual comparison in Table 1 presents a front view of the accused product, which is alleged to be substantially the same as the patent's FIG. 1. | ¶32; p. 8 | col. 2:57-58 |
| A rear view showing an open back with a corset-style, crisscross lace-up closure. | The complaint's visual comparison in Table 1 presents a rear view of the accused product, which is alleged to be substantially the same as the patent's FIG. 2. | ¶32; p. 8 | col. 2:59 |
- Identified Points of Contention:
- Scope Questions: A potential point of contention may be whether certain design elements, such as the corset-style lacing, are primarily ornamental or are dictated by their function of providing adjustable shaping. A finding that a feature is primarily functional could limit the scope of the design protection afforded to that feature.
- Technical Questions: The infringement analysis will turn on a factual comparison of the designs. The central question for the court will be whether an "ordinary observer," giving such attention as a purchaser usually gives, would be deceived into purchasing the accused product believing it to be the patented design, particularly when viewed in the context of the prior art in swimwear design.
V. Key Claim Terms for Construction
In design patent litigation, claim construction is typically not focused on textual terms but on the overall visual impression of the claimed design as depicted in the patent figures. The scope of the single claim for "The ornamental design for a swimsuit, as shown and described" '789 Patent, col. 2:50-52 is determined by the drawings themselves, viewed in their entirety. Therefore, there are no specific claim terms from the independent claim that are likely to be the subject of a formal Markman hearing in the way utility patent terms are. The analysis will instead focus on comparing the overall visual appearance of the accused product to the patented design.
VI. Other Allegations
- Indirect Infringement: The complaint does not contain separate counts or specific factual allegations for indirect infringement. The allegations are focused on direct infringement through making, using, selling, offering to sell, and importing the accused products Compl. ¶34
- Willful Infringement: The complaint alleges that Defendant's infringement has been and continues to be "deliberate, intentional, and willful" Compl. ¶37 This allegation is based on Plaintiff providing Defendant with "actual knowledge of the '789 Patent" via a notice letter sent "at least as early as February 27, 2025" Compl. ¶30 The complaint further alleges that Defendant continued its infringing activities without responding to the notice Compl. ¶31
VII. Analyst's Conclusion: Key Questions for the Case
- A core issue will be one of visual identity: under the "ordinary observer" test, is the overall ornamental appearance of Defendant's "Cross Back Tummy Control One Piece swimsuit" substantially the same as the design claimed in the '789 Patent when viewed in the context of the relevant prior art?
- A second question relates to the intersection of function and design: to what extent, if any, are the prominent features of the patented design, such as the corset-style lacing, dictated by function? The court's answer to this could impact the scope of protection afforded to the design and the ultimate infringement analysis.
- Should infringement be established, a key question for damages will concern willfulness: does the allegation that Defendant continued to sell the accused product after receiving a notice of infringement letter from Plaintiff support a finding of deliberate or reckless infringement, which could justify an award of enhanced damages or attorney's fees?