Azurous Inc v. Kennedy Intl Inc

I. Executive Summary and Procedural Information

• Parties & Counsel:
  • Plaintiff: Azurous, Inc. d/b/a Cabeau (Wyoming)
  • Defendant: Kennedy International Inc. (New Jersey)
  • Plaintiff’s Counsel: Volpe Koenig
• Case Identification: 3:23-cv-04770, D.N.J., 07/29/2024
• Venue Allegations: Venue is alleged to be proper in the District of New Jersey because Defendant is a New Jersey corporation with its principal place of business within the district.
• Core Dispute: Plaintiff alleges that Defendant’s "G-Force" travel pillow infringes a design patent and associated trade dress for Plaintiff's "EVOLUTION®" pillow.
• Technical Context: The dispute is situated in the consumer market for travel comfort products, specifically U-shaped neck pillows designed to provide head and neck support.
• Key Procedural History: The First Amended Complaint alleges that Defendant received actual notice of the patent and infringement allegations via a cease-and-desist letter dated August 17, 2023, which included a copy of the original complaint in this action.

Case Timeline

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

U.S. Design Patent No. D619,402 - "Travel Pillow"

• Patent Identification: U.S. Design Patent No. D619,402 (“Travel Pillow”), issued July 13, 2010.

The Invention Explained

• Problem Addressed: As a design patent, the D'402 Patent does not articulate a specific technical problem. However, the complaint contextualizes the invention by alleging that prior to its introduction, the market for travel pillows lacked products with its level of "sophistication and quality" and "advanced design" Compl. ¶¶7-8
• The Patented Solution: The patent protects the specific ornamental design for a travel pillow. The claimed design, depicted across several figures, consists of a generally U-shaped body with a distinctively raised rear portion, two forward-extending arms that feature substantially flat sides, and an adjustable drawstring with a clasp at the front ends of the arms D'402 Patent, FIG. 1 D'402 Patent, FIG. 4 D'402 Patent, FIG. 6 The design creates a unique overall visual impression distinct from a conventional, uniformly shaped travel pillow.
• Technical Importance: The complaint alleges that the commercial embodiment of this design "revolutionized the concept" of travel pillows and became a "ubiquitous best-selling product," suggesting significant market impact Compl. ¶8

Key Claims at a Glance

• Design patents contain a single claim. The asserted claim is for "The ornamental design for a travel pillow, as shown and described" D'402 Patent, claim
• This claim protects the overall, non-functional visual appearance of the pillow as illustrated in the patent’s drawings D'402 Patent, FIGS. 1-14

III. The Accused Instrumentality

Product Identification

The accused products are the "G-Force 4 Piece Travel Neck Pillow" and "G-Force 4 Piece Travel Neck Pillow Set" Compl. ¶¶19, 58

Functionality and Market Context

The complaint identifies the accused product as a travel pillow that competes directly with Plaintiff's EVOLUTION® pillow, allegedly in the same market and channels of trade Compl. ¶23 The core of the allegation is not its function but its appearance; the complaint asserts the accused product is a "direct copy" of the Plaintiff's commercial embodiment of the D'402 Patent design Compl. ¶48 To support this, the complaint provides a side-by-side photographic comparison of the Plaintiff's EVOLUTION CLASSIC® Pillow and the accused G-Force pillow to assert they are visually indistinguishable Compl. ¶48

IV. Analysis of Infringement Allegations

The infringement test for a design patent is the "ordinary observer" test, which asks whether an ordinary observer, familiar with the prior art, would be deceived into purchasing the accused product believing it to be the patented design. The complaint alleges direct infringement by asserting the accused product is "substantially the same" as the patented design Compl. ¶60 The complaint includes a table comparing patent figures to product photos to support its claim of misappropriation Compl. ¶22

D'402 Patent Infringement Allegations

• Identified Points of Contention:
  • Visual Similarity: The central question for the court will be one of visual comparison. Do the accused G-Force pillows and the patented design share an overall visual appearance that is substantially the same, to the point of likely deceiving an ordinary observer? The complaint argues this deception is not only likely but intended Compl. ¶¶49, 60-61
  • Functionality: The complaint asserts that the patented design is "non-functional" Compl. ¶56 A potential point of contention may arise if the defense argues that certain prominent features of the design (e.g., the raised back, flattened sides) are dictated by their utilitarian purpose of providing neck support, which could place those features outside the scope of design patent protection.

V. Key Claim Terms for Construction

In litigation involving a design patent, claim construction is typically not a central issue. The single claim is defined by the patent’s drawings, not by textual limitations. The legal analysis focuses on a visual comparison of the claimed design and the accused product from the perspective of an "ordinary observer," rather than the construction of specific terms.

VI. Other Allegations

• Indirect Infringement: The complaint alleges that Kennedy knowingly induced infringement by its customers, such as retailers and distributors. This inducement is alleged to occur through Kennedy's acts of "marketing, selling, supporting sales, and/or distributing" the allegedly infringing pillows, which causes those customers to directly infringe by selling them Compl. ¶67
• Willful Infringement: The complaint pleads willfulness on two independent grounds. First, it alleges constructive notice based on Plaintiff's patent marking on its products since October 2010 and its prominent market presence Compl. ¶¶63-64 Second, it alleges actual, pre-suit notice via a cease-and-desist letter sent on August 17, 2023, which included the original complaint. The complaint further alleges that Kennedy continued to "make, use, sell, offer for sale in, and/or import" the accused pillows after receiving this notice Compl. ¶¶65-66

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

This case presents several key questions that will likely define the litigation:

• A core issue will be one of visual deception: From the perspective of an ordinary observer, are the overall ornamental designs of the accused G-Force pillow and the D'402 patent substantially the same, such that the observer would be deceived into purchasing the G-Force pillow believing it was the patented design?
• A key defense may focus on functionality: Will the court determine that key visual elements of the patented design, such as the raised rear portion or flattened sides, are dictated primarily by their utilitarian function of providing neck support, thereby removing those elements from the scope of the protected ornamental design and narrowing the infringement analysis?
• A third critical question will relate to willfulness: The complaint alleges that the defendant continued selling the accused product after receiving a cease-and-desist letter. This raises a significant question of intent for the court: does this alleged post-notice conduct constitute the sort of "egregious" behavior that could support a finding of willful infringement and a potential award of enhanced damages?