Nestlé continues Trend of Recent Consumer Products Design Patent Complaints

January 31, 2012

Continuing a pattern of design patent infringement suits involving consumer products filed in recent months, Nestlé Healthcare Nutrition, Inc. “(Nestlé ) and Gerber Products Company (“Gerber”) sued Mead Johnson & Company, LLC (“Mead Johnson”) in the United States District Court for the District of Delaware on January 26, 2012.

The suit, 1:12-cv-0079, alleges that the sale of certain Mead Johnson bottles infringes Nestlé’s U.S. Design Patent No. D 447,421 (“the ‘421 patent”). The complaint further alleges unfair competition, trade dress infringement, and various state law causes of action against Mead Johnson. The ‘421 patent is directed towards an ornamental design for a bottle. See Fig. 1 to the left.

The Nestlé complaint states that the patented bottle has been used in its Boost® line of nutritional drinks. ¶ 14. Mead Johnson has supplied Nestlé with the products covered by the ‘421 patent. ¶ 14. However, Nestlé alleges that Mead Johnson also supplied infringing bottles as private label products to Wal-Mart, Kroger, and Sam’s Club without a license. ¶ 19. In an unusual twist, the allegedly infringing products are reportedly marked with the ‘421 patent number. ¶ 19.

Notably, Mead Johnson had previously sued Nestlé and Gerber in United States District Court for the Southern District of Indiana in August 2011, 3:11-cv-0100, for infringement of U.S. patent no. 7,040,500 entitled “Container and Scoop Arrangement.” Thus, this month’s Nestlé suit asserting the ‘411 design patent appears to be part of a larger dispute between the companies.

In November 2011, Crocs Inc. (“Crocs”) brought suit against Walgreen Co. in the United States District Court for the District of Colorado, 1:11-cv-02954, alleging infringement of U.S. Patent No. D 610,784 (“the ‘784 patent”) and U.S. patent no. 6,993,858. The ‘784 patent is directed towards an ornamental design for footwear. See Fig. 1 to the right.

The Crocs complaint states that prior to filing suit Crocs sent Walgreens a letter asking that Walgreens cease and desist selling its “Caribbean Cartel” footwear. ¶ 20. Crocs had previously asserted other design patents on its footwear as reported, for example, in Crocs Inc. v. Int’l Trade Comm’n., 598 F.3d 1294 (Fed. Cir. 2010). See our prior post. The most recent Crocs suit is an example of the common strategy of asserting design patents in combination with utility patents against an alleged infringer.

Finally, in October 2011, Kohler Co. (“Kohler”) sued Amerisink, Inc. in the United States District Court for the Eastern District of Wisconsin, 11-cv-921, asserting infringement of two design patents, nos. D 510,985 (“the ‘985 patent”) and D 529,147 directed towards ornamental designs for sinks. See Fig. 1 of the ‘985 patent to the left.

Kohler asserted that Amerisink infringed these patents through its sale of certain stainless steel sinks. ¶ 21. As in the Crocs suit, Kohler reported that it sent Amerisink a cease and desist letter regarding the alleged infringement prior to filing suit. ¶ 22.

Design patents continue to be an important, though sometimes overlooked, tool in the patent portfolios of many companies, especially those in the consumer products arena. As with other recent patent design suits, the suits discussed above were brought by American companies. Whether foreign companies will also choose to assert their own design patents with greater frequency in the future remains to be seen.

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