United States District Court, D. Nevada
EQUALIA, LLC and HOVBERBOARD TECHNOLOGIES CORPORATION, Plaintiff,
KUSHGO LLC, et al., Defendants.
RICHARD F. BOULWARE, II UNITED STATES DISTRICT JUDGE
Motion for a Temporary Restraining Order and Preliminary
Injunction (ECF No. 10).
the Court is Plaintiff's Motion for a Temporary
Restraining Order and Preliminary Injunction (ECF No. 10).
The Court has reviewed the parties' papers and heard oral
argument. The Court previously announced its ruling orally in
which it granted Plaintiff's Motion in part. This written
order memorializes and elaborates this oral ruling.
Allegations & The Design Patent
Equalia, LLC, and Hoverboard Technologies Corporation filed a
Complaint on Dec. 9, 2016 against Defendants Kushgo LLC, Halo
Board LLC, Arthur Andreasyan and Shenzhen Windgoo Intelligent
Technology Co. Ltd.. ECF No. 1. (Only the first three
defendants have appeared in this case.) The complaint asserts
two count: (1) Infringement of Plaintiff's design patent
under 35 U.S.C. § 271, and (2) Unfair and Deceptive
Trade Practices under 15 U.S.C. § 45.
filed the instant Emergency Motion for TRO and Preliminary
Injunction on Dec. 28, 2016. ECF No 10. Defendants filed a
Response on Dec. 29, 2016. ECF No. 17. Equalia seeks an
injunction based on alleged infringement of its design
patent. The patent issued as United States Design Patent No.
D768, 252 on October 4, 2016, and is titled Pitch-Propelled
Vehicle. Mot for TRO, Bigler Decl. at ¶4.
patent claims the ornamental design as depicted in five
figures. The Court bases its conclusions on the images as
depicted in the patent. The Court finds that the patent
depicts the following distinct features,  among others:
oblong-shaped board with rounded edges and upturned ends.
slender single wheel in the center of the board, with two
square-shaped bumper features with linear grooves on either
side of the top of the wheel on the top of the board, and two
angled plastic covers on either side of the bottom of the
cover or dome on top of the wheel, conforming to the contour
of the wheel.
strip along the perimeter edge.
thick edge, consisting of that strip, and thick planks of
material on either side, with the thick planks sloping inward
toward the strip at the edge.
Speakers on each end of the bottom of the board with a
cone-shaped recess in the middle of the speakers containing a
single light feature.
Triangular skid pads on each corner, with smaller round
protruding shape features on each of them.
Dark, crescent-shaped displays on top front and back of the
diamond-shaped panels dividing up the top surface of the
seeks the following injunctive relief: (1) An order
restraining Defendants from offering the “Halo
Board” products for sale in the United States; (2) A
seizure order for all of Defendants' infringing products,
including the “Halo Board” from CES and
Defendants' United States warehouse. (3) An order to show
cause regarding the issuance of a preliminary injunction
based on the ruling for a TRO.
Court held an evidentiary hearing with expert testimony on
January 3, 2016. The Court incorporates by reference its
statements and findings made on the record at this hearing
(and previous hearings). At the January 3 hearing, the Court
heard expert testimony from Plaintiff's expert Robert
Bigler and Defendants' expert Brian Sanderson, as to the
functionality of the design features and overall design of
the board. Mr. Bigler testified that he is the owner and CEO
of Plaintiff Equalia LLC, that he designed the design patent,
that he has a degree in mechanical engineering from San Jose
state university, and that he has been involved in the
creation and testing of the product bearing the design
patent. Mr. Sanderson testified that he is trained as an
industrial designer, that he has degrees in industrial design
and visual art and oil painting from Brigham Young
University, and that since acquiring his degrees he has
worked in industrial design, including projects related to
Court first notes that it finds Defendants' argument as
to a Daubert disqualification of Plaintiff's
expert witness to be unpersuasive. See Daubert v. Merrell
Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).
Defendants argues that Daubert and rule 403 require
the exclusion of testimony if the expert witness has an
interest in the case. Daubert nowhere states that an
expert witness must be disqualified because he has a relation
to a party or a direct financial stake in the outcome.
Daubert states that “the trial judge must
determine at the outset, pursuant to Rule 104(a), whether the
expert is proposing to testify to (1) scientific knowledge
that (2) will assist the trier of fact to understand or
determine a fact in issue.” Id. at 592. The
Court did so here. Mr. Bigler submitted his CV, and his
testimony attests to his engineering and design background,
as well as his direct experience testing the functionality of
the board. The Court finds no reason that Mr. Bigler was not
qualified to testify as an expert in this case.
testimony of both witnesses focused on the functionality of
the various features and of the design of the boards,
including whether or not alternative designs could achieve
the same or similar function. Upon observation, the Court
generally credits and accepts Mr. Bigler's testimony, and
does not credit or accept Mr. Sanderson's testimony.
Sanderson's opinion was significantly less persuasive
because he lacked sufficient knowledge of prior art related
to the boards and knowledge of the actual operation and
internal construction of the boards. The Court finds that
Sanderson did not credibly establish the existence of
relevant prior art. He was not familiar with the various
patents submitted by Defendants as possible relevant prior
art for Plaintiff's design.
admitted exhibits including but not limited to art in the
form of design patent No. D769, 997 S, a single-wheeled board
that the plaintiff testified is self-propelled, art in the
form of a utility patent, No. 4, 824, 139, depicting a
speaker on the bottom of a skateboard, a trademark
application by Defendants showing a prior version of the Halo
Board, and an image of the inside of a Halo Board, showing
that only one of the spaces underneath a speaker feature
contains an actual speaker.
admitted exhibits including but not limited to an advertising
video clip of the Plaintiff's board being used, as well
as prior art in the form of utility patent No. 4, 991, 066,
showing lights on the side of a board, design patent No. 7,
811, 217 B2, depicting a board with a center wheel and
bumpers entitled “Motorized Apparatus and Method for
Dynamic Balancing Exercise, ” and design patent No.
D505, 469 S, depicting a board with two wheels that are
covered on the top side of the board.