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Towel Tote Can Pursue IP Claims Against Bed Bath and Beyond

By Robyn Hagan Cain on January 29, 2013 | Last updated on March 21, 2019

When you walk into a business meeting at Bed Bath and Beyond (BB&B), you expect fluorescent lighting and comfortable home goods. Maybe a set of slippers. A soft throw casually tossed over the side of the conference table.

You don't expect the retailer to steal your design for the Towel Tote. But that occasionally happens. At least, it allegedly happened to Roger Hall.

Hall invented the aforementioned Towel Tote, "a large towel with binding around all the edges, zippered pockets at both ends, and an angled cloth loop in the middle." The patent for his design issued in July 2009.

Prior to receiving the patent, Hall met with BB&B execs about selling his towels in their stores. He left samples of his packaged Tote Towel. Both the package and the towel were marked "patent pending."

BB&B, allegedly undeterred by that label, reportedly had copies of the Towel Tote manufactured in Pakistan through West Point Home, Inc., for retail sale by BB&B. When the patent issued, Hall sued.

The district court dismissed all of the claims and counterclaims on the pleadings. The Federal Circuit Court of Appeals, however, concluded that the counts of patent infringement, unfair competition, and misappropriation were not subject to dismissal on the pleadings. Instead, the appellate court agreed that Hall had properly addressed the five Phonometrics, Inc. v. Hospitality Franchise Systems, Inc. criteria:

  1. Allege ownership of the patent.
  2. Name each defendant.
  3. Cite the patent that is allegedly infringed.
  4. State the means by which the defendant allegedly infringes.
  5. Point to the sections of the patent law invoked.

The panel noted that Hall's pleadings fully complied with Rule 8, stated the correct law, and showed plausible entitlement to relief under Twombly. Furthermore, it had sufficient "facial plausibility" to "allow the court to draw the reasonable inference that the defendant is liable," as outlined in Iqbal.

Whether the facts as plausibly pleaded can be proved is a matter for trial, but they are enough to warrant a patent infringement trial.

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