Northern District dismisses patent infringement claims against major retailers

A man who claimed that several major retailers were liable to him for patent and trade dress infringement has had his complaint against them dismissed by the U.S. District Court for the Northern District of Indiana.

James Cross, who owns three United States Design Patents, sued Dick’s Sporting Goods, Kohl’s, Walmart, and Amazon claiming that the retail giants had infringed on his T-shirt design patents. As a result, he sought declaratory relief, an injunction and an accounting for damages.

Cross owns U.S. Patent No. Des. D341,471 dated Nov. 23, 1993, for an “ornamental design for a T-shirt.” He also owns  U.S. Patent No. D580,633S and No. D581,136S dated Nov. 18 and Nov. 25, 2008, respectively, which similarly claim an “ornamental design for a convertible T-shirt.”

Aside from identifying Cross as the owner of those three patents, the Northern District Court found that the substantive content of his complaint was “entirely threadbare.”

All of the defendants in their motions to dismiss Cross’ complaint offer a version of the same contention about the inadequacy of his pleading – mainly that it is insufficient to meet federal pleading standards and lacks the specificity required to state a claim for trade dress infringement.

“This argument reaches the heart of what is fundamentally deficient about Cross’s complaint,” Judge Philip P. Simon wrote for the district court.

It further noted that Cross, “relies on older decisions to erroneously suggest he has little or no obligation to plead facts at all.”

“To the contrary, even though a pro se litigant like Cross is entitled to more leeway than a trained attorney in pleading his case, the complaint must still ‘allege facts ‘plausibly suggesting (not merely consistent with)’ a showing of entitlement to relief’ if it is going to avoid dismissal for failure to state a claim,” Simon wrote.

At the very least, it noted, an infringement claim must specifically identify the products accused of infringing. However, the text of the complaint contains no effort to do this, the district court found.

To back his claim, Cross attached a handful of exhibits to his complaint, containing screenshots of zip-up jerseys advertised for sale on each of the retailer’s respective websites. But, as the district court pointed out, the complaint made no reference to the exhibits and offered no allegations about the specific products depicted.

Concluding that Cross’ claim of patent infringement is deficient under Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 556 (2007) and does not meet the minimum standards required by Rule12(b)(6), the district court further held that the trade dress claim was similarly inadequate and “entirely deficient to put defendants on reasonable notice as to the basis of his claim.”

The court also declined to undertake any other analysis going to the merits of Cross’ claims brought by the defendants in James E. Cross v. Dick’s Sporting Goods, Inc, Kohl’s Inc, Walmart Inc, and Amazon Inc, 2:21-CV- 198.

“The sorry state of the complaint not only leaves the defendants unable to fully and fairly respond, but leaves me without a sufficient understanding of the claims to give them the appropriate analysis, including an analysis of the futility of amendment,” Simon wrote.

The district court thus granted all four motions to dismiss brought by the defendants to the extent that the complaint fails to state a claim upon which relief can be granted.

“The complaint’s lack of an adequate factual basis for the claims of patent infringement and trade dress infringement make it subject to dismissal under this standard. In addition, the claims of infringement of the oldest of the three patents appear to be time-barred,” Simon wrote.

The court dismissed with prejudice as untimely Cross’ claim for the 1993 patent and dismissed his remaining claims without prejudice.

Cross may file a motion for leave to file a First Amended Complaint, accompanied by a proposed First Amended Complaint, no later than Feb. 28, 2022.