8:24-cv-00938
Slick Slide LLC v. Big Air Franchising LLC
I. Executive Summary and Procedural Information
- Parties & Counsel:
- Plaintiff: Slick Slide LLC (Delaware)
- Defendant: Big Air Franchising, LLC (California)
- Plaintiff's Counsel: Kahana & Feld LLP; Wood Herron & Evans L.L.P.
- Case Identification: 8:24-cv-00938, C.D. Cal., 08/05/2024
- Venue Allegations: Venue is asserted based on the Defendant residing in the judicial district, committing acts of infringement therein, and having a regular and established place of business in the district.
- Core Dispute: Plaintiff alleges that Defendant induced infringement of a design patent for a recreational slide by knowingly encouraging and facilitating its franchisees' purchase and use of slides with a substantially similar ornamental design.
- Technical Context: The dispute is in the recreational equipment industry, focusing on the proprietary ornamental appearance of slides used in amusement facilities and trampoline parks.
- Key Procedural History: The complaint notes that prior lawsuits against Defendant's franchisees have been resolved, but alleges that Plaintiff has not received any compensation for the Defendant's separate acts of inducement.
Case Timeline
| Date | Event |
|---|---|
| 2019-07-01 | Priority Date for U.S. Patent No. D973,821 |
| 2022-12-27 | U.S. Patent No. D973,821 Issued |
| 2023-02-17 | Defendant allegedly received a copy of the '821 Patent via email from a franchisee |
| 2023-05-12 | Defendant allegedly continued to assist franchisees with the accused slides |
| 2023-07-14 | Defendant allegedly received communication from attorneys regarding the '821 Patent |
| 2024-08-05 | Complaint Filing Date |
II. Technology and Patent(s)-in-Suit Analysis
- Patent Identification: U.S. Design Patent No. D973,821 ("the '821 Patent"), titled "Recreational Slide," issued on December 27, 2022 Compl. ¶9
The Invention Explained
- Problem Addressed: The complaint asserts that Plaintiff creates "innovative and customized recreational slides" with "unique technology and innovative designs" for amusement and water parks (Compl. ¶¶1; Compl. ¶7). The '821 Patent protects the specific ornamental appearance of one such design, the "Launch Slide" Compl. ¶¶8-9
- The Patented Solution: The '821 Patent protects the novel, non-functional, ornamental design of a recreational slide. The design is defined by the solid lines in the patent's seven figures D'821 Patent, FIGs. 1-7 Key visual features include a hooded or enclosed entry section, a distinct S-curved overall trajectory, and a specific shape at the slide's exit D'821 Patent, FIGs. 1-7 Compl. ¶51 The claim covers the overall visual impression created by the combination of these features as depicted in the drawings D'821 Patent, Claim
- Technical Importance: The complaint positions the patented design as an "original creation of Slick Slide," suggesting its value lies in providing a unique and recognizable aesthetic in the competitive recreational park market Compl. ¶8
Key Claims at a Glance
- The complaint asserts the single claim of the '821 Patent Compl. ¶¶50-53 Design patents contain a single claim, which reads: "The ornamental design for a recreational slide, as shown and described" D'821 Patent, Claim
- While not broken into traditional elements, the complaint identifies the core ornamental features of the claimed design that it alleges are infringed Compl. ¶51:
- An ornamental and novel hood design enclosing the first section of the slide.
- An ornamental and novel overall slide trajectory.
- An ornamental and novel slide exit trajectory at the end of the slide.
III. The Accused Instrumentality
Product Identification
The accused instrumentalities are recreational slides purchased and used by Defendant's franchisees, including BA NE Charlotte, LLC and BA Greenville, LLC Compl. ¶¶14-19 The complaint alleges these slides were manufactured by Dreamland Playground Compl. ¶45
Functionality and Market Context
The accused slides are used in trampoline and recreational parks operated by Defendant's franchisees Compl. ¶13 Compl. ¶16 The complaint alleges that Defendant, a franchisor, enticed its franchisees to purchase these slides from Dreamland Playground, which were of the "same design" as Plaintiff's, instead of purchasing from Plaintiff Compl. ¶46 The complaint refers to photographic evidence of the slides in "Exhibit B" and "Exhibit C" Compl. ¶¶26-27 This image, referenced in the complaint as Exhibit B, depicts the recreational slide used by one of the Defendant's franchisees Compl. ¶15 Another image, referenced as Exhibit C, shows the slide used by a different franchisee Compl. ¶19
IV. Analysis of Infringement Allegations
The complaint alleges infringement of the single claim of the '821 design patent. The legal test for design patent infringement is the "ordinary observer" test, which assesses whether an ordinary observer, in the eye of an expert, would be deceived into purchasing the accused product believing it to be the patented design. The complaint's allegations are structured as a narrative comparison rather than a formal claim chart.
The core of the infringement allegation is that the accused slides are "substantially the same" as the patented design Compl. ¶50 The complaint breaks down this comparison by highlighting three key ornamental features Compl. ¶51:
- Hood Design: The complaint alleges the '821 Patent depicts a "novel hood design that encloses the first section" and that a "nearly identical feature is found in the images of the accused products in Exhibit B and Exhibit C" Compl. ¶51 It specifically compares this feature to Figures 1, 2, 3, and 4 of the '821 Patent Compl. ¶52
- Overall Slide Trajectory: The complaint alleges the '821 Patent shows a "novel overall slide trajectory" and that this feature is "nearly identical" in the accused products Compl. ¶51 This allegation is tied to Figures 1, 2, and 7 of the patent Compl. ¶52
- Slide Exit Trajectory: The complaint alleges the '821 Patent has a "novel slide exit trajectory at the end of the slide design" and that this feature is also "nearly identical" in the accused slides Compl. ¶51 This comparison references Figures 2, 5, and 6 of the patent Compl. ¶52
Based on these alleged similarities, the complaint concludes that an ordinary observer "would be deceived into believing that the accused products are the same as the patented design" Compl. ¶53
- Identified Points of Contention:
- Visual Similarity: The central dispute will be a visual comparison of the accused slides against the drawings in the '821 Patent. The question for the court will be whether the overall ornamental impression of the two designs is substantially the same from the perspective of an ordinary observer familiar with prior art recreational slides.
- Scope of "Ordinary Observer": The complaint defines the ordinary observer as "a customer who buys and uses recreational slides" Compl. ¶50 The parties may dispute whether this is the correct lens for the analysis, as the test is typically from the perspective of a purchaser of the articles, which in this context could be the park franchisee rather than the end-user.
V. Key Claim Terms for Construction
In design patent litigation, formal claim construction of specific terms is uncommon. The scope of the single claim-"The ornamental design for a recreational slide, as shown and described"-is defined by the solid lines in the patent's drawings, not by textual descriptions D'821 Patent, Claim The analysis typically proceeds directly to a visual comparison under the ordinary observer test. Therefore, the complaint does not provide a basis for an analysis of specific claim terms for construction. The dispute will likely focus on the application of the infringement test to the overall visual appearance rather than the definition of any particular word or phrase.
VI. Other Allegations
- Indirect Infringement: The sole count in the complaint is for inducement of infringement under 35 U.S.C. § 271(b) Compl. ¶¶55-60 The complaint alleges Defendant possessed the requisite knowledge and intent, pointing to specific facts:
- Knowledge: Defendant allegedly received a copy of the issued '821 Patent on February 17, 2023, and its representatives discussed the patent (Compl. ¶21; Compl. ¶22; Compl. ¶23; Compl. ¶24; Compl. ¶25).
- Intent to Induce: The complaint alleges Defendant specifically intended to cause infringement by instructing franchisees to use the accused slides Compl. ¶29, coordinating their design and sourcing Compl. ¶16, facilitating their manufacture Compl. ¶47, and telling franchisees to "get slides of the same design from Dreamland" after being advised of the franchisee's intent to purchase from Plaintiff Compl. ¶46
- Willful Infringement: The complaint alleges that Defendant's acts of inducement were carried out "willfully and with full knowledge of Slick Slide's rights" Compl. ¶59 The factual basis for willfulness appears to be the allegation that Defendant continued to encourage and facilitate the use of the accused slides even after being put on notice of the '821 Patent and forming a belief that their use would constitute infringement Compl. ¶¶36-37 Compl. ¶43
VII. Analyst's Conclusion: Key Questions for the Case
The Visual Test of Infringement: The case's outcome will heavily depend on a visual comparison. A dispositive issue will be: From the perspective of an ordinary observer of recreational park equipment, is the overall ornamental appearance of the accused slides substantially the same as the design claimed in the '821 patent, such that the observer would be deceived?
Evidence of Specific Intent: As this is an inducement case, a central factual question will be one of intent. Can Plaintiff produce sufficient evidence to prove that Defendant acted with the specific intent to encourage its franchisees to infringe the '821 Patent, as opposed to merely providing general franchise support or being indifferent to potential infringement?
Causation and Damages: A key question for damages, particularly a lost profits claim, will be causation. Can Plaintiff demonstrate that "but for" Defendant's alleged inducement (e.g., directing franchisees to an alternative manufacturer), those franchisees would have purchased the patented slide from Plaintiff, thereby establishing a direct causal link between the inducement and Plaintiff's financial harm Compl. ¶61?