eos Products and Kind Group get private label knockoff producer to surrender following pretrial rulings on trade dress and design patent issues
Clients eos Products, LLC
On the eve of a two-week jury trial, the seller of the popular egg-shaped eos™ lip balm represented by Jones Day, eos Products LLC and its parent Kind Group LLC, obtained a settlement in which a private label manufacturer has agreed to stop offering knockoff egg-shaped lip balm.
On July 28, District Judge Philip A. Brimmer granted eos Products' motion for partial summary judgment that the trade dress of its egg-shaped lip balm is non-functional, and that its design patent is valid. In recognizing the validity of the eos design patent, the court rejected the argument that prior art spherical designs anticipated or rendered the eos design obvious.
On August 11, the court granted eos Products' motion to exclude from the jury evidence of a design patent that OraLabs had subsequently obtained for a design that is similar to that of its challenged product. OraLabs had contended that the USPTO's issuance of a design patent for the challenged design despite the prior eos patent was admissible and relevant evidence that the design of the OraLabs product is not substantially the same as the eos patent and thus does not infringe the eos patent. In rejecting this contention, the court noted that OraLabs' design patent application had included the top of the lip balm container, and that the USPTO might have issued the OraLabs patent over the eos patent because the eos patent did not include the top. Accordingly, the court held that the OraLabs patent had no probative value to the issue of infringement of eos' design patent, and excluded it from evidence.
Following the rulings, OraLabs agreed to stop offering egg-shaped lip balm, as well as other lip balm products that eos Products had alleged in a separate ITC action to infringe other eos Products utility patents.
The Jones Day team consisted of Washington partners John Froemming and Tracy Stitt, and associates Holly Lance and Allison Prevatt; and Cleveland partner Meredith Wilkes and associate John Evans.
Oralabs, Inc. v. Kind Group LLC and eos Products LLC, Civil Action No. 1:13-cv-000170-PAB-KLM (D. Colo.) (Judge Brimmer)