ND Products Inc v. Individuals Corps Ltd

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: ND Products Inc. (Virginia)
  • Defendant: The Individuals, Corporations, Limited Liability Companies, Partnerships, and Unincorporated Associations Identified on Schedule A (primarily People's Republic of China)
  • Plaintiff's Counsel: Boies Schiller Flexner LLP
• Case Identification: 1:26-cv-21683, S.D. Fla., 03/13/2026
• Venue Allegations: Venue is asserted in the Southern District of Florida based on allegations that Defendants have committed acts of infringement in the district, conducted substantial business there, and targeted sales to Florida residents through interactive e-commerce stores.
• Core Dispute: Plaintiff alleges that numerous unidentified e-commerce operators are selling and importing "Counterfeit Products" that infringe three of Plaintiff's U.S. design patents covering ornamental designs for ear cleaning apparatuses.
• Technical Context: The dispute concerns the market for personal care and consumer health devices, specifically tools designed for at-home earwax removal.
• Key Procedural History: The complaint is filed against a large group of defendants whose identities are redacted and filed under seal in "Schedule A." Plaintiff notes this procedure is intended to prevent the defendants, alleged to be foreign counterfeiters, from transferring assets or destroying evidence before the court can grant relief, a practice the complaint asserts has been previously approved in the district.

Case Timeline

Date	Event
2015-06-12	Earliest Priority Date for U.S. Patent No. D866,763
2019-11-12	U.S. Patent No. D866,763 Issued
2021-08-06	Priority Date for U.S. Patent No. D965,784
2022-10-04	U.S. Patent No. D965,784 Issued
2022-06-13	Priority Date for U.S. Patent No. D1,039,148
2024-08-13	U.S. Patent No. D1,039,148 Issued
2026-03-13	Complaint Filing Date

II. Technology and Patent(s)-in-Suit Analysis

U.S. Design Patent No. D1,039,148 - "Ear Cleaning Apparatus"

• Patent Identification: U.S. Patent No. D1,039,148, "Ear Cleaning Apparatus," issued August 13, 2024 Compl. p. 6

The Invention Explained

• Problem Addressed: The patent addresses the creation of a new, original, and ornamental design for an ear cleaning apparatus D1,039,148 Patent, title
• The Patented Solution: The patent protects the unique visual appearance of the apparatus. Its claimed design consists of a spiral-shaped cleaning tip, a generally cylindrical body, and a distinctive, broad spiral ribbon that wraps around the length of the body, creating a twisting visual effect '148 Patent, FIG. 1 '148 Patent, FIG. 2
• Technical Importance: The complaint alleges that Plaintiff's designs are "distinctive and innovative" and are "broadly recognized by consumers as being sourced from Plaintiff" Compl. ¶19

Key Claims at a Glance

• The single claim is for "The ornamental design for an ear cleaning apparatus, as shown and described" '148 Patent, claim
• The core ornamental features depicted in the figures include:
  • A conical, spiral-shaped tip.
  • A cylindrical main body.
  • A prominent, raised spiral ribbon element encircling the main body.
  • A base with vertical ridges.

U.S. Design Patent No. D965,784 - "Ear Cleaning Apparatus"

• Patent Identification: U.S. Patent No. D965,784, "Ear Cleaning Apparatus," issued October 4, 2022 Compl. p. 6

The Invention Explained

• Problem Addressed: The patent is for a new, original, and ornamental design for an ear cleaning apparatus '784 Patent, title
• The Patented Solution: This patent claims an ornamental design characterized by a smooth, unadorned, and tapering handle that contrasts with the functional spiral tip. The handle has a clean, slightly curved profile, giving it a distinct ergonomic appearance '784 Patent, FIG. 1 '784 Patent, FIG. 2
• Technical Importance: The complaint asserts that the innovative designs are associated with the quality consumers expect from Plaintiff's products Compl. ¶19

Key Claims at a Glance

• The single claim is for "The ornamental design for an ear cleaning apparatus, as shown" '784 Patent, claim
• The essential visual elements comprising the design include:
  • A spiral-shaped cleaning tip.
  • A smooth, unadorned handle surface.
  • A tapering, slightly curved, teardrop-like shape for the handle.

Multi-Patent Capsule

• Patent Identification: U.S. Patent No. D866,763, "Ear Cleaning Apparatus," issued November 12, 2019 Compl. p. 7
• Technology Synopsis: The '763 Patent protects the ornamental design of an ear cleaning tool. The design is distinguished by an ergonomic handle featuring concave, curved indentations on its sides, which create a unique grip appearance, and a spiral cleaning tip '763 Patent, FIG. 1 '763 Patent, FIG. 3
• Asserted Claims: The single design claim for the ornamental design as shown and described in the patent's figures '763 Patent, claim
• Accused Features: The overall ornamental appearance of the "Counterfeit Products" is alleged to embody or be a colorable imitation of the design claimed in the '763 Patent Compl. ¶¶52-53

III. The Accused Instrumentality

Product Identification

The accused instrumentalities are "Counterfeit Products," specifically "cosmetic and ear cleaning tools as well as accessories" that allegedly embody Plaintiff's patented designs Compl. ¶4 Compl. ¶18 These products are sold through the "Defendant Internet Stores" on platforms including Amazon, DHgate, eBay, Shein, and Walmart Compl. ¶5

Functionality and Market Context

The accused products are functional earwax removal tools Compl. p. 16 The complaint provides an exemplary screenshot of an accused product listing for a "Q Grips Ear Wax Removal Tool" Compl. p. 16 Plaintiff alleges that Defendants design their online stores to appear as authorized retailers, using Plaintiff's intellectual property to deceive consumers into purchasing what are presented as genuine products Compl. ¶28 The complaint includes a screenshot of a product listing on Shein for an "All In One Wax Removal Kit" sold by a defendant, which is alleged to infringe Plaintiff's trademark Compl. p. 15

IV. Analysis of Infringement Allegations

The central test for design patent infringement is whether, in the eye of an ordinary observer, the accused design is substantially the same as the claimed design, such that the observer would be deceived into purchasing one supposing it to be the other. The complaint provides a side-by-side comparison of figures from the patents-in-suit and an "Exemplary Counterfeit Product" Compl. p. 16

• D1,039,148 Patent Infringement Allegations

  • The complaint does not provide a claim chart. The infringement allegation is based on the assertion that Defendants' products are "colorable imitations" of the patented designs Compl. ¶52 Compl. prayer 2a The visual provided shows the '148 Patent figure next to an accused product Compl. p. 16

• Identified Points of Contention:

  • Scope Questions: A central question will be whether the overall visual impression of the accused products is substantially similar to the claimed design. The most prominent feature of the '148 Patent is the spiral ribbon wrapped around the body. The exemplary accused product in the complaint Compl. p. 16 does not appear to have this feature, which may support a defense of non-infringement for that specific product. The litigation will depend on whether Plaintiff can produce other accused products that more closely track the '148 Patent's design.
  • Technical Questions: The analysis will be entirely visual. The court will need to determine if an ordinary observer would find the accused designs and the patented design to be substantially the same, despite potential differences in surface ornamentation like the spiral ribbon.

• D965,784 Patent Infringement Allegations

  • The complaint does not provide a claim chart. The infringement theory is that the accused products create the same overall visual impression as the design claimed in the '784 Patent Compl. ¶52 Compl. ¶53 The complaint's visual comparison includes a figure from the '784 patent Compl. p. 16

• Identified Points of Contention:

  • Scope Questions: The dispute may focus on the similarity of the handles. The '784 Patent claims a smooth, tapering, unadorned handle. The court will have to assess whether the handle of the exemplary accused product Compl. p. 16 is substantially similar in its overall shape and unornamented appearance to the claimed design.
  • Technical Questions: As a design patent matter, the key question is visual. Does the combination of the spiral tip and the smooth, teardrop-shaped handle of the accused product create an overall impression of substantial similarity to the '784 Patent's design in the eyes of an ordinary observer?

V. Key Claim Terms for Construction

For design patents, the "claim" is the design itself as depicted in the drawings, and construction focuses on the overall visual appearance rather than textual terms.

• The "Term": The overall ornamental design for an "ear cleaning apparatus."
• Context and Importance: The entire infringement analysis hinges on a visual comparison between the claimed designs and the accused products. The scope of protection afforded to each design patent-whether it is broad enough to cover products with minor differences or narrow and limited to the exact depictions-will be the central issue.
• Intrinsic Evidence for Interpretation:
  • Evidence for a Broader Interpretation: A party could argue that the core, dominant features of the designs are the combination of a spiral tip with a distinct ergonomic handle. Under this view, minor variations in the handle's specific curves or surface texture might not be enough to escape infringement if the overall visual impression is the same.
  • Evidence for a Narrower Interpretation: A party could argue that the specific ornamental features are what make the design novel and non-obvious, and therefore limit the scope of the claim. For the '148 Patent, this would be the spiral body ribbon; for the '763 Patent, the specific concave indentations. They may argue that any product lacking these precise features is not substantially similar and thus does not infringe.

VI. Other Allegations

• Indirect Infringement: The complaint makes conclusory allegations of indirect infringement Compl. ¶4 Compl. ¶52 It does not, however, plead specific facts to support the required elements of either induced infringement (e.g., knowledge and intent to cause infringement) or contributory infringement (e.g., sale of a non-staple component with no substantial non-infringing use).
• Willful Infringement: Willfulness is alleged on the grounds that Defendants acted "knowingly and intentionally, or with reckless disregard or willful blindness to Plaintiff's rights" Compl. ¶43 Compl. ¶54 This allegation is predicated on the purported fame and success of Plaintiff's products and the goodwill associated with them Compl. ¶42

VII. Analyst's Conclusion: Key Questions for the Case

The resolution of this case will likely depend on the answers to two primary questions:

1. Evidentiary Linkage: A threshold issue will be whether Plaintiff can produce evidence linking specific accused products sold by the numerous, unidentified "Schedule A" defendants to each of the three asserted design patents. The complaint's primary visual exhibit appears to show a product more closely resembling the '763 and '784 patent designs than the '148 patent design, raising the question of what evidence exists for infringement of the '148 patent.

2. Scope of Visual Similarity: The core legal question will be the application of the "ordinary observer" test. The case will turn on whether the overall visual impression of the accused products is "substantially the same" as the patented designs, or if the observable differences in handle shape, surface ornamentation, and specific proportions are sufficient to place the accused products outside the scope of the patent claims.