design_law, 4 months ago

To Emson's credit, it does include pictures of the accused product (and a claim chart for the utility patent) in the complaint.

Let's see how its infringement claims fare.

design_law, 4 months ago

First, Emson alleges infringement of D743,324. At first, the claim doesn't look terrible. But when you look closer at the striker pin insertion post (as Emson calls it in its UP claim chart), there are notable differences:

annotated comparison images from the complaint

design_law, 4 months ago

Second, Emson alleges infringement of D766,809. In this one the differences in the posts are even more pronounced:

comparison image from the complaint

design_law, 4 months ago

The claim of infringement of the D'809 patent should definitely fail.

The claim of infringement against the D'324 patent should also fail but it would be a closer issue.

And if you're feeling bad for the plaintiff, remember: They could have disclaimed the shape of the post. They didn't. So differences in the post shape matter.

For more on how design patent disclaimers work, see:
https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3539149

design_law, 4 months ago

What about the trade dress claim?

Emson alleges that it has unregistered trade dress rights in "the colors black and red applied in combination to the surface of the device’s handle. In particular, the color black is applied to the surface of the handle body and the color red is applied to a generally ogive-shaped area along the top surface of the handle (the “Car Cane Trade Dress”)."

#TradeDress #ColorMarks

design_law, 4 months ago

To prevail on this claim, Emson will first have to prove that this color combination has acquired distinctiveness (aka secondary meaning).

It will also have to prove that the colors are not functional.

See generally Qualitex v. Jacobson: https://www.law.cornell.edu/supct/html/93-1577.ZO.html

I'm not familiar with this market so I have no idea if there is a plausible claim for secondary meaning here.

NoFlexZone, 4 months ago

@design_law are there pictures of it affixed to a car?

design_law, 4 months ago

@NoFlexZone Yes, there's this one showing the plaintiff's product:

kathleenthelaw, 4 months ago

@design_law that handle also looks pretty different