On February 21, 2013, Elite Dogstands Ltd. (“Elite”) of Harlow, United Kingdom, filed a complaint in the Northern District of Georgia against For The Earth Corporation (“FTEC”) of Phoenix, Arizona, and BJ’s Wholesale Club, Inc. (“BJ’s”) of Westborough, Massachusetts, alleging causes of action for design patent infringement, trademark infringement, trademark dilution, and unfair competition over FTEC’s and BJ’s sales of bone-shaped dog bowls.
According to the complaint, Elite designs, develops, manufactures, and sells pet products, including its “novel and distinctive bone-shaped pet bowl.” Elite claims to be the assignee of U.S. Patent No. D623,362, which discloses the ornamental design of a bone-shaped pet bowl. Elite also claims to have sold its pet bowls under trademarks HING and HING DESIGNS since 2011. The complaint indicates that FTEC’s predecessor, Prestige Pet Products, Inc. (“Prestige”) engaged in discussions with Elite in February 2012 about the possibility of becoming Elite’s distributor of pet bowls in the United States. Elite claims to have given Prestige a copy of its ‘362 Patent and several samples of its bone-shaped pet bowls during the course of these discussions, and that Prestige was also made aware of Elite’s HING and HING DESIGNS marks. Elite alleges that, soon after discussions broke down, Prestige began selling bone-shaped pet bowls substantially similar to, if not identical to, Elite’s patented bowls. The Complaint states that FTEC purchased Pretige in August 2012 and has since continued to make and sell the allegedly infringing bowls, and also that the bowls are sold through retail outlets including BJ’s. Figure 1 of the ‘362 Patent, and photographs of Elite’s and FTEC’s bowls are below.
|Figure 1 of the ‘362 Patent.|
|Elite’s pet bowl sold under its HING and HING DESIGNS trade names.|
|Accused pet bowl allegedly sold under the HING and HING DESIGNS names.|
Elite alleges that “on information and belief” FTEC and BJ’s have “proceeded to promote, distribute, offer for sale and/or sell the substantially similar, competing Accused Products under or in association with Elite’s distinctive HING and HING DESIGNS trademarks and trade names.” Interestingly, neither HING, HING DESIGNS, nor any similar mark appear on any of the materials submitted with the complaint–that is, the photographs of the allegedly infringing product and its packaging, and the screenshots of FTEC’s website. Presumably Elite has some indication that FTEC and BJ’s are using its marks but no specific instances are detailed in the complaint. Elite asks the Court for an injunction, actual and treble damages, and attorneys’ fees and costs.
The case is Elite Dogstands, Ltd. v. For The Earth Corporation and BJ’s Wholesale Club, Inc., No. 1:13-cv-00573-JEC, United States District Court for the Northern District of Georgia, Atlanta Division, and is assigned to Chief Judge Julie E. Carnes.
Categories: Before 2017