Sarah FackrellRachel Adin LLC sues H&M over jewelry, neither side seems to have any idea how design patents work: https://www.scribd.com/document/695487112/Adin-v-H-M-Complaint
First of all, the plaintiff seems to fundamentally misunderstand the entire concept of design patent scope. Yes, the verbal part of the patent claim says its a design for a "jewelry article." But that doesn't mean it automatically covers any article of jewelry. The shapes still have to be the same.
The earrings and the chunky choker might be said to embody the larger design patent concept but their shapes are totally different. There is no way they infringe. Not even close.
The claim against the first necklace (the thinner one) is not as terrible, though that's not saying much.
Here's a photo of the necklace from H&M's site. Maybe if it were arranged in a circle, it would look more like the claimed design. But my guess is that the proportions would likely be different enough to avoid infringement.
On the other side, H&M's counsel makes no mention that the claim against the earrings is totally lacking in merit (the claim against the chunky choker doesn't appear to be in the original C&D) AND seems to misunderstand design patent ornamentality:
"[W]e are confident in our ability to quickly invalidate the ’617 Patent through an IPR proceeding at a negligible cost to H&M."
Yeah, good luck with that.
As for the trade dress claim, the plaintiff never actually defines the purported trade dress beyond vague allusions to "the underlying design" of the company's "novel jewelry."
Oh, and I have to share allegation number one:
"The usual suspects this holiday season are not Harry and Marv from Home Alone but Hennes & Mauritz of H&M and instead of invading and robbing a kid’s home, Defendant is selling unauthorized copies of a young and independent brand’s jewelry as part of its 2023 Holiday collection."
Yes. Someone chose to open their complaint with that.
Peter@design_law I find it delightful that someone missed the day they taught that entertainment value != legal weight.
Oooh oooh! Blah blah blah Lenny Briscoe blah blah Law & Order blah blah funny.
🤔(/me looking for a third dumb joke in a single post)
Alyson Decker@design_law Wow- like I get they want the press to cover the complaint- but that’s crazy- you’d get a motion to strike here immediately and probably win it.
Don Cruse@design_law Something tells me that lawyer hasn’t watched Casablanca…
Casey Hewitt@design_law Could you patent a pattern? Like claim an inch and disclaim the rest? (Not that I support such trickery…)
@hewittlaw Yes, you could. And the Federal Circuit wouldn't even consider it trickery. See https://papers.ssrn.com/sol3/papers.cfm?abstract_id=3539149
I think Zahn is wrong but, as long as we live in a Zahn word, patentees who fail to take advantage of dotted-line claiming have to live with the consequences.