Shu v. Di

I. Executive Summary and Procedural Information

• Case Name: Fengwei Shu v. Grand Di
• Parties & Counsel:
  • Plaintiff: Fengwei Shu (People's Republic of China)
  • Defendant: Grand Di and The Other Individuals, Partnerships, and Unincorporated Associations Identified in Schedule "A" (Foreign jurisdictions)
  • Plaintiff's Counsel: Stratum Law LLC
• Case Identification: 2:24-cv-01643, W.D. Pa., 06/11/2025
• Venue Allegations: Venue is asserted on the basis that the defendants are foreign entities not resident in the United States, making venue proper in any judicial district. The complaint further alleges that defendants direct business activities and ship products to consumers in the Western District of Pennsylvania.
• Core Dispute: Plaintiff alleges that Defendants' sale of an "Inflatable Flamingo Floater" on various online marketplaces infringes its U.S. design patent for an inflatable ring toss toy.
• Technical Context: The dispute is in the consumer product sector, specifically concerning the ornamental design of inflatable toys used for recreational activities like pool games.
• Key Procedural History: The filing is a Fifth Amended Complaint, suggesting previous iterations of the pleading have been filed. The complaint also notes that Plaintiff has previously used Amazon.com's internal process to remove infringing listings, but new listings emerged, prompting this litigation.

Case Timeline

Date	Event
2018-07-13	'674 Patent Priority Date
2019-09-03	'674 Patent Issue Date
2025-06-11	Complaint Filing Date

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

U.S. Patent No. D858,674 - "INFLATABLE FLAMINGO RING TOSS TOY"

The Invention Explained

• Problem Addressed: Design patents protect ornamental appearance rather than solving a technical problem. The implicit goal is to create a new, original, and ornamental design for an article of manufacture, in this case, an inflatable toy intended for a "throwing game" Compl. ¶1
• The Patented Solution: The patent claims the specific ornamental design for an inflatable flamingo-themed ring toss toy '674 Patent, claim The design, as depicted in the patent's figures, consists of an inflatable ring-shaped base from which an upright, stylized flamingo head and neck emerge, intended to serve as a target '674 Patent, Figs. 1-7 The overall visual impression is that of a floating flamingo.
• Technical Importance: The design's importance is not technical but aesthetic, aiming to provide a unique and appealing appearance within the competitive market for pool toys and accessories.

Key Claims at a Glance

• Design patents have a single claim. The asserted claim is for "The ornamental design for an inflatable flamingo ring toss toy, as shown and described" '674 Patent, claim
• The scope of the claim is defined by the visual characteristics depicted in the patent's seven figures, which show the design from the front, back, side, top, bottom, and in perspective views '674 Patent, Figs. 1-7

III. The Accused Instrumentality

Product Identification

• The accused products are identified as the "Inflatable Flamingo Floater" or the "Infringing Products" Compl. p.1

Functionality and Market Context

• The accused products are inflatable flamingo-shaped toys sold by numerous pseudonymous sellers through online platforms such as Amazon.com and Walmart.com Compl. p.1 Compl. ¶13 The complaint alleges these are "knockoff" products that are "substantially identical" to Plaintiff's own product, which embodies the patented design Compl. ¶4 Compl. ¶5 A side-by-side comparison image in the complaint shows the Defendants' product, which features a pink inflatable flamingo head and neck on a ring base. Compl. ¶4, p.2 The complaint alleges these products are sold in direct competition with Plaintiff's product, causing price erosion and goodwill degradation Compl. ¶13 Compl. ¶33

IV. Analysis of Infringement Allegations

The standard for design patent infringement is whether an "ordinary observer," giving the level of attention a typical purchaser would, would be deceived into purchasing the accused product believing it to be the patented design. The complaint alleges the accused products are "substantially identical" to the claimed design Compl. ¶45

The complaint provides a visual chart comparing figures from the '674 Patent to photographs of the accused products. Compl. ¶14, p.5 This chart highlights the alleged similarity in the front view, the details of the head, and the top-down view of the ring base.

Claim Element (from the '674 Patent Design)	Alleged Infringing Functionality	Complaint Citation	Patent Citation
The ornamental design for an inflatable flamingo ring toss toy, comprising a ring-shaped base with an upright flamingo head and neck.	The Defendants' Infringing Products comprise an inflatable flamingo toy with a ring-shaped base and an upright flamingo head and neck.	¶14; ¶43	col. 1:54
The overall side-profile configuration, including the curvature of the neck and shape of the head.	The complaint includes images comparing the side-profile of the patented design to the accused product, alleging they are substantially identical.	¶14	col. 1:56
The top-down appearance showing the head projecting from the circular base.	The accused product's top-down view, as shown in the complaint, features a head projecting from a circular base in a manner alleged to be the same as the patented design.	¶14	col. 1:58

• Identified Points of Contention:
  • Scope Questions: A central question for the court will be the application of the "ordinary observer" test. The analysis will involve comparing the overall visual impression of the accused products with the design claimed in the '674 Patent's drawings.
  • Technical Questions: The complaint repeatedly refers to the "pink color" of the accused products as a point of similarity Compl. ¶5(a) Compl. ¶14 Compl. ¶43 However, the '674 Patent consists of line drawings and does not claim color. A point of contention may be whether the color of the accused product, while not part of the formal patent claim, should factor into the ordinary observer analysis of overall similarity and likelihood of deception.

V. Key Claim Terms for Construction

In design patent litigation, traditional claim construction of written terms is rare, as the claim is defined by the drawings. The primary analysis is a visual comparison.

• The Term: "inflatable flamingo ring toss toy"
• Context and Importance: This phrase, from the patent's title and claim, defines the "article of manufacture" to which the ornamental design is applied. Its construction is not expected to be a major point of dispute, as both the patented design and the accused products are clearly inflatable flamingo-themed toys. Practitioners will likely focus not on construing this term but on the direct visual comparison mandated by the ordinary observer test to determine if the designs are "substantially the same."
• Intrinsic Evidence for Interpretation: The patent provides no explicit definition. The scope is understood through the title '674 Patent, title and the visual representations in the figures '674 Patent, Figs. 1-7 The complaint does not suggest a dispute over the article of manufacture itself, but rather over the similarity of the ornamental designs applied to that article Compl. ¶45

VI. Other Allegations

• Indirect Infringement: The complaint makes a passing reference to indirect infringement Compl. ¶46, but the sole count is for direct infringement Compl. p.15 The factual allegations focus on Defendants' own acts of making, using, selling, and importing, which are acts of direct infringement.
• Willful Infringement: The complaint alleges that Defendants' infringement is knowing and intentional, or at least willfully blind Compl. ¶35 This allegation is supported by claims that Defendants are aware of the Plaintiff and the asserted patent Compl. ¶25(g) and are engaging in deceptive practices, such as concealing their identities and using pseudonymous online storefronts Compl. ¶6 Compl. ¶16

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

• A core issue will be one of visual comparison: Applying the ordinary observer test, is the overall ornamental design of the Defendants' "Inflatable Flamingo Floater" substantially the same as the design claimed in the '674 patent's drawings, such that a typical purchaser would be deceived?
• A key evidentiary question will be one of scope and perception: What legal weight, if any, will be given to features of the accused product that are not explicitly part of the patent's line-drawing claim, such as its pink color, when assessing the total visual impression from the perspective of an ordinary observer?
• A significant procedural challenge will be one of enforcement and jurisdiction: Can the Plaintiff effectively consolidate its claim against a diffuse group of foreign, pseudonymous online sellers identified only in a schedule, and can the court exercise personal jurisdiction over these disparate actors to provide meaningful relief?