Woodpeckers Brings a Schedule A Suit in Austin Over Its Adjustable T-Square Design Patent, Marks and Video.

The case

The case is Woodpeckers, LLC v. The Individuals, Partnerships, and Unincorporated Associations Identified on Schedule A, No. 1:26-cv-02987 (W.D. Tex., Austin Division), assigned to Judge Robert Pitman. The complaint is signed by James E. Judge and also lists Ying Chen of Flener IP Law in Chicago, Illinois. It describes Woodpeckers as an Ohio limited liability company based in Strongsville, Ohio, and says the defendants operate online storefronts on marketplaces including Amazon, eBay, Temu and Walmart under seller names listed in Schedule A, which Woodpeckers says it will separately move to file under seal.

The design patent and the product

The complaint says Woodpeckers is the assignee of U.S. Patent No. D957,964, issued July 19, 2022, which it says covers the ornamental features of its Posi-Lock T-Square tools, sold through its website, an Amazon storefront and dealers. It reproduces Figures 1 to 7 of the patent and alleges that the defendants copied the patented design.

The three counts

Count I alleges design patent infringement under 35 U.S.C. 271. Count II alleges, against some of the defendants, trademark infringement and counterfeiting under 15 U.S.C. 1114 based on marks the complaint says Woodpeckers has registered, including WOODPECKERS and POSI-LOCK. Count III alleges, against some of the defendants, copyright infringement under 17 U.S.C. 501(a) of a Woodpeckers product video the complaint says is registered with the Copyright Office.

The relief sought

Woodpeckers asks for preliminary and permanent injunctions against selling goods that use its marks or video or embody the patented design, an accounting of the defendants' profits, and damages. On the patent count it asks that damages be increased three times under 35 U.S.C. 284 and for an accounting of the defendants' revenue and profits under 35 U.S.C. 289. On the trademark count it asks for trebled damages under 15 U.S.C. 1117 or, alternatively, statutory damages of $1,000 to $2,000,000 per counterfeit mark per type of good. On the copyright count it asks for statutory damages under 17 U.S.C. 504(c) of $150,000 per work per infringement. It also asks for a written compliance report from the defendants, attorney fees and costs.