DCT

1:26-cv-01848

Affordo Inc v. Guangzhou Xingxing Cotton Technology R&D Co Ltd

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I. Executive Summary and Procedural Information

  • Parties & Counsel:
  • Case Identification: 1:26-cv-01848, S.D.N.Y., 03/06/2026
  • Venue Allegations: Plaintiff alleges that venue is proper because the Defendant is a foreign entity not resident in the United States and may therefore be sued in any judicial district.
  • Core Dispute: Plaintiff seeks a declaratory judgment that its women's thong undergarment product does not infringe Defendant's design patent and that the patent is invalid.
  • Technical Context: The dispute centers on the ornamental design of an integrated gusset for women's undergarments, a feature that can influence consumer choice in the competitive apparel market.
  • Key Procedural History: The action was precipitated by Defendant's submission of a design patent infringement complaint against Plaintiff's product via the TikTok Shop brand-protection mechanism, which resulted in a violation notice and threatened marketplace enforcement actions.

Case Timeline

Date Event
2023-12-08 Alleged prior art (Amazon listing) becomes publicly available
2024-06-24 Alleged prior art (Taobao listing) becomes publicly available
2024-06-26 Alleged prior art (Amazon customer review) becomes publicly available
2024-07-05 Alleged prior art (Amazon listing) becomes publicly available
2024-08-31 Alleged prior art (Rednote post) becomes publicly available
2025-01-23 Alleged prior art (Archived product page) becomes publicly available
2025-03-11 '606 Patent Priority Date (Filing Date)
2025-09-16 '606 Patent Issue Date
2026-03-02 Plaintiff receives TikTok violation notice from Defendant
2026-03-06 Complaint Filing Date

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

U.S. Design Patent No. D1,093,606 S - "Insert for Undergarment"

  • Patent Identification: U.S. Design Patent No. D1,093,606 S, titled "Insert for Undergarment," issued on September 16, 2025 ('606 Patent). Compl. ¶23

The Invention Explained

  • Problem Addressed: Design patents protect ornamental appearance rather than functional utility. The implicit problem addressed is the need for a new, original, and ornamental design for an article of manufacture-in this case, an insert for an undergarment-to provide a distinct aesthetic in the marketplace.
  • The Patented Solution: The patent claims the specific visual appearance of an undergarment insert, as depicted in the drawings '606 Patent, Claim The design consists of a generally tapered shape with a continuous inner border that largely mirrors the outer contour, creating a frame-like appearance '606 Patent, FIG. 2 A key feature is the relationship between the inner and outer borders, particularly the rounded, U-shaped return of the inner border at the design's narrower end '606 Patent, FIG. 1 '606 Patent, Description
  • Technical Importance: In the apparel industry, the ornamental design of product components like a gusset can serve as a point of visual differentiation, potentially influencing consumer purchasing decisions.

Key Claims at a Glance

  • Design patents contain a single claim. The asserted claim is for: "The ornamental design for an insert for undergarment, as shown and described" Compl. ¶26 '606 Patent, Claim
  • The essential visual elements of the claimed design, as shown in the patent drawings, include:
    • A tapered overall silhouette, wider at the top and narrower at the bottom.
    • A continuous inner border inset from the outer edge.
    • A specific proportional relationship between the inner and outer borders.
    • A distinctly rounded, U-shaped curve where the inner border turns at the narrow end of the design.

III. The Accused Instrumentality

Product Identification

The accused product is Plaintiff's women's thong undergarment, specifically the integrated front gusset area Compl. ¶31

Functionality and Market Context

The complaint describes the accused gusset as a "layered and thickened region of the front crotch panel" Compl. ¶32 Its stated purpose is to "fit the body, remain positioned during wear, and provide intended coverage and comfort" Compl. ¶32 Plaintiff sells these apparel products through online marketplaces, including TikTok Shop Compl. ¶12

IV. Analysis of Infringement Allegations

As this is a complaint for a declaratory judgment of non-infringement, the analysis below summarizes the Plaintiff's arguments for why its product does not infringe the '606 Patent. The infringement test for a design patent is 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 provides an annotated side-by-side visual comparison of the patented design and the accused product, highlighting alleged differences in "relative spacing," "inner border," and "side-edge curvature" Compl. p. 8

'606 Patent Infringement Allegations

Claim Element (Visual Feature of Patented Design) Alleged Non-Infringing Feature of Accused Product Complaint Citation
A comparatively deep and narrow U-shaped inner-border return. The accused gusset has a "comparatively broader and shallower inner-border return." ¶35
A tight, uniform spacing relationship between the inner border and the outer edge along the lower portion. The accused gusset has a "different relative spacing between the inner border and the outer edge." ¶35
A specific curvature of the side edges. The accused gusset has "straighter side-edge curvature and different overall proportions." ¶35
The overall ornamental appearance as a whole. The alleged differences in shape, spacing, and proportion "change the overall visual impression to an ordinary observer." ¶35

Identified Points of Contention

  • Scope Questions: The complaint argues that similarities between the designs are "driven by functional requirements of an integrated undergarment gusset" Compl. ¶34 Compl. ¶42 This raises the question of whether the patent's scope is limited only to purely ornamental aspects, requiring the court to filter out any features dictated by function (e.g., the basic tapered shape required for fit) from the infringement analysis.
  • Technical Questions: A central factual question is whether an ordinary observer would find the specific visual differences asserted by the Plaintiff-such as the shape of the inner border's return and the relative spacing-significant enough to create a different overall visual impression, or if they would be seen as minor variations of the same basic design.

V. Key Claim Terms for Construction

In a design patent case, "claim construction" involves describing the claimed design's visual characteristics and determining the scope of protection, including separating ornamental from functional features.

  • The Term: The overall ornamental appearance of the "insert for undergarment"
  • Context and Importance: The entire infringement analysis hinges on the court's interpretation of the claimed design's scope. Defining which features are purely ornamental and which are dictated by function will be critical, as functional elements are not protected by a design patent and must be disregarded when comparing the designs. Practitioners may focus on this issue because the Plaintiff has explicitly raised functionality as a core defense Compl. ¶34 Compl. ¶42
  • Intrinsic Evidence for Interpretation:
    • Evidence for a Broader Interpretation: A party arguing for broader scope (the Defendant) may assert that the patent protects the overall visual impression of the tapered, frame-like design shown in the drawings '606 Patent, FIG. 1 '606 Patent, FIG. 2 They would likely argue that the solid lines in the figures define the design as a whole and that the asserted differences in the accused product are trivial.
    • Evidence for a Narrower Interpretation: A party arguing for narrower scope (the Plaintiff) may cite the patent's title, "Insert for Undergarment" '606 Patent, Title, and the inherent functional constraints of such an article Compl. ¶33 to argue that the basic tapered shape is functional. This would narrow the patent's protectable scope to only the specific proportions, the exact curvature of the lines, and the particular U-shape of the inner border's return as depicted in the drawings '606 Patent, FIG. 2

VI. Other Allegations

The complaint does not provide sufficient detail for analysis of indirect or willful infringement.

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

  • A core issue will be one of functionality: to what extent are the visual features of the patented design, particularly its overall shape, dictated by the functional requirements of an undergarment gusset? The court's determination of which design elements are ornamental versus functional will fundamentally define the scope of the patent's protection.
  • The case will also turn on the application of the ordinary observer test: assuming a properly construed claim, would an ordinary observer perceive the specific differences alleged by the Plaintiff-related to the inner border's shape, edge curvature, and overall proportions-as substantial enough to create a distinct visual impression, or would they be seen as insignificant variations of the patented design?
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