Sport Dimension v. Schedule A - Webelar MTD

Case: 1:23-cv-15414 Document #: 45 Filed: 11/26/23 Page 1 of 8 PageID #:2661
IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
Sport Dimension, Inc.,

)
) Case No.: 1:23-cv-15414
Plaintiff, )
)
v. )
) The Hon. Harry D. Leinenweber
)
THE INDIVIDUALS, CORPORATIONS, )
LLCS, PARTNERSHIPS, AND )
UNINCORPORATED ASSOCIATIONS )
IDENTIFIED ON SCHEDULE, )
)
Defendants.
DEFENDANT WELEBAR’S MOTION TO DISMISS
The Plaintiff’s Complaint contains two flaws that warrant dismissal. First, mass
joinder is improper. Second, WELEBAR’s products are not infringing as they are
distinctively different from the Plaintiff’s product. The Complaint should thus be
dismissed as to WELEBAR under Federal Rules of Civil Procedure 12(b)(6), and 20(a)(2).
PROCEDURAL HISTORY AND BACKGROUND FACTS
The Plaintiff filed its Complaint on October 30, 2023, alleging that the Defendants
committed patent infringement of U.S. patent No. D744,603. Doc. 1. Specifically, the single
count Complaint avers Defendants sell products that infringe Plaintiff’s Patented Design:
personal flotation devices protected by U.S. Design Patent No. D744,603 entitled “Personal
Flotation Device.” Doc. 1. The Plaintiff also filed an ex parte motion for a temporary
restraining order, which the Court granted on October 10, 2023. Docs. 10, 25. On November
14, 2023, the TRO was extended until November 30, 2023. Doc. 30.
Defendant WELEBAR sells its own brand of personal flotation devices. On its Amazon
page, WELEBAR clearly denotes its product as “Brand: WELEBAR.” See Exhibit 1.
WELEBAR is also an established Amazon retailer. It has 413 ratings, with 90% of those
ratings being four or five “stars.” See Exhibit 1. Further, WELEBAR has been selling the
device since March 1, 2022. See Exhibit 1. Finally, WELEBAR applied for a patent of its
flotation device on April 8, 2022, Patent Number D977,051S1. See Exhibit 2.
ARGUMENT
A. Dismissal Is Warranted As Rule 20(a)(2) Precludes Mass Joinder.
Under Federal Rule of Civil Procedure 20(a)(2), defendants may be joined in a
single action if two elements are met: (1) the claims against them are asserted “with
respect to or arising out of the same transaction, occurrence, or series of transactions or
occurrences,” and (2) there must be a “question of law or fact common to all
defendants.” FED. R. CIV. P. 20(a)(2)(A)-(B). Both are absent here.
It is insufficient for a plaintiff to “simply allege that multiple defendants have
infringed the same patent or trademark to meet Rule 20’s requirements.” Estee Lauder
Cosmetics Ltd. v. Partnerships & Unincorporated Associations Identified on Schedule A,
334 F.R.D. 182, 187 (N.D. Ill. 2020). “That makes sense: one defendant’s alleged
infringement does not ‘arise out of the same transaction, occurrence, or series of
transactions or occurrences’ as another defendant’s unrelated infringement.” Id. Here, the
Plaintiffs have not demonstrated their claims against WELEBAR arise out of the same
transaction or occurrence as those against the other hundreds of Defendants. Nor do any
allegations single out WELEBAR. Rather, the Complaint generally asserts that
Defendants, “without any authorization or license from Plaintiff, have knowingly and
2
willfully used and continue to use the PADDLE PALS Patented Design in connection
with the advertisement, distribution, offering for sale, and sale of infringing products
into the United States and Illinois over the Internet.” See Doc. 1 at ¶ 28. This cannot
demonstrate that WELEBAR is properly joined as a Defendant. See Estee Lauder, 334
F.R.D. at 187. Because the Plaintiff provides no details of WELEBAR’s alleged
infractions, the Complaint against it falls due to improper joinder under Rule 20(a)(2).
B. The Plaintiff Fails To State A Claim Under Rule 12(b)(6).
If the Court reaches the merits of the Complaint, the Plaintiff fares no better.
A Rule 12(b)(6) motion challenges the sufficiency of a complaint. Bonnstetter v. City
of Chicago, 811 F.3d 969, 973 (7th Cir. 2016). A complaint must contain enough
information, via “a short and plain statement of the claim,” to give the defendant fair
notice of the claim and its basis. FED. R. CIV. P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550
U.S. 544, 555 (2007). Although a complaint “does not need detailed factual
allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to
relief’ requires more than labels and conclusions, and a formulaic recitation of the
elements of a cause of action will not do.” Twombly, 550 U.S. at 555. Nor does a
complaint suffice if it tenders naked assertions lacking any factual enhancement.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
These principles warrant dismissal here. The Complaint only provides labels and
conclusions, and simply recites the elements of patent infringement. The Complaint
articulates no grounds for relief against WELEBAR. Nor could the Plaintiff have
pleaded a viable cause of action against WELEBAR. The Plaintiff cannot establish as
a matter of pleading or proof that any act by WELEBAR, a well-established retailer
on Amazon, in selling its own explicitly branded product would have confused the
3
public. At bottom, an ordinary observer would not be deceived into purchasing
WELEBAR’S product supposing it to be the Plaintiff’s.
To prevail on a design patent claim, a plaintiff must show that “in the eye of an
ordinary observer . . . two designs are substantially the same, if the resemblance is such as
to deceive such an observer, inducing him to purchase one supposing it to be the other.”
Dyson, Inc. v. SharkNinja Operating LLC, 2018 WL 1906105 at *9 (N.D. Ill. Mar. 29,
2018). An ordinary observer is considered a principal purchaser of the underlying articles.
Ethicon Endo-Surgery, Inc. v. Covidien, Inc., 796 F.3d 1312, 1337 (Fed. Cir. 2015).
Dispositive is whether the effect of the whole design is substantially the same as the
corresponding portions of the accused design. Payless Shoesource, Inc. v. Reebok Int’l,
Ltd., 998 F.2d 985, 991 (Fed. Cir. 1993).
By definition, a design patent is limited. It protects only the decorative appearance of
an article, not its functions. Richardson v. Stanley Works, Inc., 597 F.3d 1288, 1293 (Fed.
Cir. 2010). And when the design contains functional and ornamental aspects, “it is entitled
to a design patent whose scope is limited to those” ornamental aspects and does not
incorporate functional elements. Id. Claim construction of a design patent thus limits the
scope of the patent to its overall ornamental visual impression, not the broader general
design concept. Id. These critical limitations preclude recovery for Plaintiff here.
The patent at bar includes solid black lines, reflecting a narrow ornamental floatation
device design. These solid lines cover the narrow and specific ornamental design which
consists of two unbroken cylindrical armbands connected to a torso piece with two
shoulder straps and a single clip. What is more, as asserted by Defendant Owntop USA in
its recently filed Motion to Vacate the TRO, the Federal Circuit constructed the claims of
Plaintiff’s similar design patents (D623,714), and deemed the design “minimalist, with
4
little ornamentation,” and “includes the shape of the armbands, and the side torso tapering,
to the extent that they contribute to the overall ornamentation of the design.” See Sport
Dimension, Inc. v. Coleman Co., 820 F.3d 1316, 1323 (Fed. Cir. 2016); Doc. 43 at 4-5.
The Federal Circuit found the overall claim scope of D623,714 “narrow” because of the
design’s functional elements and its minimal ornamentation. 820 F.3d 1316, 1323. The
claims of D623,714 mirror those at bar. And in keeping with the Federal Circuit’s
findings, the armbands and torso tapering of the instant patent serve the functional purpose
of fitting the user’s body to keep them afloat. See id. In sum, the overall similarity of
appearance of a flotation device with armbands and straps cannot establish infringement.
The contentions of Defendant Owntop USA in its Motion to Vacate the TRO capture the
futility of Plaintiff’s position. The Court should follow the reasoning of the Federal Circuit
and dismiss the instant suit.
Next, comparing WELEBAR’s brand flotation device with the Plaintiff’s further
confirms the propriety of dismissal. The two significant differences are the sharp V-shape
at the front. This contrasts with the long curved nature of Plaintiff’s patent. Second, the
Plaintiff has two unbroken cylindrical armbands, whereas WELEBAR’s device contains
lines on each armband, breaking up the armbands into two sections. These distinctions are
captured in the following images.
The Plaintiff’s device:
5
WELEBAR’s device:
6
The images of WELEBAR’s device are further contained in Exhibit 3,4, and 5,
attached here. Comparing the ornamental designs of the two flotation devices, the
differences prevent deception of an ordinary observer. They also keep the accused product
from being so similar to the claimed designs that “in the market and with purchasers they
would pass for the same thing - so much alike that even persons in the trade would be in
danger of being deceived.” Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 670 (Fed.
Cir. 2008). Given these substantial differences, and the fact the scope of the patent is
constricted to its overall ornamental visual impression, the Plaintiff cannot show that it is
more likely than not that WELEBAR committed patent infringement.
CONCLUSION
For the foregoing reasons, WELEBAR respectfully requests the Court dismiss this
case.
November 26, 2023 Respectfully submitted,
s/ Christopher Keleher
Christopher Keleher
The Keleher Appellate Law Group, LLC
1 East Erie St.
Suite 525
Chicago, IL 60611
312-448-8491
ckeleher@appellatelawgroup.com
7
CERTIFICATE OF SERVICE
The undersigned attorney hereby certifies that on November 26, 2023, a true and correct
copy of the foregoing document was filed electronically with the Clerk of the Court and served
on all counsel of record.
Respectfully submitted,
s/ Christopher Keleher
Christopher Keleher
The Keleher Appellate Law Group, LLC
1 East Erie St.
Suite 525
Chicago, IL 60611
312-448-8491
ckeleher@appellatelawgroup.com
8
Case: 1:23-cv-15414 Document #: 45-1 Filed: 11/26/23 Page 1 of 9 PageID #:2669
Amazon.com : Welebar Swim Vest for Toddler, Suit for Kids 28-70 lbs, … Training, Swim Vest for Infant/Toddler/Children : Sports & Outdoors 11/25/23, 9:34 PM
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Brand Welebar
Material Polyester, Nylon
Product 12.5"L x 7.4"W
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Item Weight 238 Grams
Age Range Toddler
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About this item

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Color Unicorn Customer Reviews 4.6 413

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Material Polyester, Nylon Best Sellers Rank #35,626 in Sports & Outdoors
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Product Dimensions 12.5"L x 7.4"W
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Item Weight 238 Grams #30 in Swim Vests
Age Range (Description) Toddler Date First Available March 1, 2022
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Color: Shark Verified Purchase
Muy bueno para la protección y cuidado de los niños. Mi hijo se divirtió mucho usándolo
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This is wonderful for older children

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I bought this for my special needs 9 year old grand daughter. It is a bigger size than her last
one and works wonderfully! She still has room to grow!
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Veronica
Awesome!
Reviewed in the United States on September 29, 2023
Color: Crab Verified Purchase
I bought this for my son as he learns how to swim. It fit him perfectly and was very
comfortable for him. He’s about 4ft tall and about 52lbs.” And he definitely had room to
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Stays on my toddler grandson


The shoulder straps make this item heads and 'shoulders' above the similar ones. His arms
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Chris Roberts
Exactly what I needed!

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Great for learning to swim

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Reviewed in the United States on October 2, 2023
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We have a special needs child and she is about 65 pounds. This worked perfect for her.
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Reviewed in the United States on August 25, 2023
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Works well with my child who is 60+ lbs and cannot swim. It isn't the same safety guard as a
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Bought it for my toddler. Used many times with no issues.
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Janet Smith
Exactly what I expected

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Great but kinda rides up

Reviewed in Canada on January 17, 2023
Color: Unicorn Verified Purchase
It works well but my kid is 40lbs and it rides up a bit so it gets right in her face. Puddle
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Barb
Its an okay product

Reviewed in Canada on June 24, 2023
Its okay but the parts that go around the upper arm are far to small. My son can't fit his
arms though and they are not adjustable
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Case: 1:23-cv-15414 Document #: 45 Filed: 11/26/23 Page 1 of 8 PageID #:2661

IN THE UNITED STATES DISTRICT COURT FOR THE

Sport Dimension, Inc.,

DEFENDANT WELEBAR’S MOTION TO DISMISS

PROCEDURAL HISTORY AND BACKGROUND FACTS

flotation device on April 8, 2022, Patent Number D977,051S1. See Exhibit 2.

A. Dismissal Is Warranted As Rule 20(a)(2) Precludes Mass Joinder.

Under Federal Rule of Civil Procedure 20(a)(2), defendants may be joined in a

respect to or arising out of the same transaction, occurrence, or series of transactions or

defendants.” FED. R. CIV. P. 20(a)(2)(A)-(B). Both are absent here.

It is insufficient for a plaintiff to “simply allege that multiple defendants have

Cosmetics Ltd. v. Partnerships & Unincorporated Associations Identified on Schedule A,

transactions or occurrences’ as another defendant’s unrelated infringement.” Id. Here, the

F.R.D. at 187. Because the Plaintiff provides no details of WELEBAR’s alleged

B. The Plaintiff Fails To State A Claim Under Rule 12(b)(6).

A Rule 12(b)(6) motion challenges the sufficiency of a complaint. Bonnstetter v. City

allegations, a plaintiff’s obligation to provide the ‘grounds’ of his ‘entitle[ment] to

complaint suffice if it tenders naked assertions lacking any factual enhancement.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

a matter of pleading or proof that any act by WELEBAR, a well-established retailer

public. At bottom, an ordinary observer would not be deceived into purchasing

WELEBAR’S product supposing it to be the Plaintiff’s.

2018). An ordinary observer is considered a principal purchaser of the underlying articles.

Ltd., 998 F.2d 985, 991 (Fed. Cir. 1993).

By definition, a design patent is limited. It protects only the decorative appearance of

and dismiss the instant suit.

captured in the following images.

The Plaintiff’s device:

more likely than not that WELEBAR committed patent infringement.

November 26, 2023 Respectfully submitted,

on all counsel of record.

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$20.79 Cyber Monday Deal

More from frequently bought brands Page 1 of 10

Technical Details Additional Information

Size Small ASIN B09TP2G4GT

Color Unicorn Customer Reviews 4.6 413

Age Range (Description) Toddler Date First Available March 1, 2022

Item Package Dimensions L x 12.17 x 7.36 x 6.3 inches Feedback

Brand Name Welebar

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child puddle swimming

Top reviews from the United States

Translate all reviews to English

This is wonderful for older children

Stays on my toddler grandson

Color: Crab Veriﬁed Purchase