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UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

Hangzhou Chic Intelligent Technology Co. Ltd., 

and Unicorn Global, Inc., 

Plaintiffs,

v.

The Partnerships and Unincorporated 

Associations Identified on Schedule "A"

Defendants.

 Case No.: 1:20-cv-04806

 

DEFENDANT GYROOR US’S MOTION TO DISMISS PURSUANT TO 

FOR FAILURE TO STATE A CLAIM UPON WHICH RELIEF CAN BE GRANTED

NOW COMES Defendant GYROOR US (“Moving Defendant”), by and through its attorneys, 

respectfully moves for an Order1 pursuant to Rule 12(b)(6) of the Federal Rule of Civil Procedure Rule, 

on the ground that Plaintiffs Hangzhou Chic Intelligent Technology Co. Ltd. and Unicorn Global, Inc. 

(“Plaintiffs”) (a) have failed to sufficiently plead plausible claims on its face (b) even the Court accepts 

all fact alleged in Third Amended Complaint (“TAC”) as true, Plaintiffs have failed to plead that 

Moving Defendant has infringed their four design patents or Plaintiffs are entitled to relief.

Pursuant to Court’s Standing Order, Parties have conferred prior to the filing of this Motion and 

agreed to the following proposed briefing schedule: Response due May 20, 2021; Reply due June 7, 

2021.

BACKGROUND

On August 17, 2020, Plaintiffs initiated this present action by filling their Complaint against 

individuals and entities on Schedule A, which owned and operated ecommerce accounts. See Compl., 

1 Moving Defendant hereby incorporates its concurrently filed Motion to Dismiss and Sever Under Rule 20 and Rule 

21. Dkt. No. 211. 

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Dkt. No. 1. On November 19, 2020, Plaintiffs filed their TAC against approximately 36 individuals and 

entities on Schedule A, B and C. See TAC, Dkt. No. 101.

Plaintiffs allege that all defendants listed on Schedule A, B and C committed Design Patent 

Infringement for the following four different design patents, Patent No. D737,723, Patent No. D738,256, 

Patent No. D785,112, and Patent No. D784,195. Plaintiffs’ claims against Moving Defendant are based 

on Moving Defendant’s Amazon listing of a certain product, which is attached as Exhibit 1-Part 7 and 

referenced in the TAC, Dkt. No. 101-1. 

LEGAL STANDARD

A Rule 12(b)(6) motion challenges the sufficiency of a complaint. Bonnstetter v. City of 

Chicago, 811 F.3d 969, 973 (7th Cir. 2016). A complaint must contain enough information via “a short 

and plain statement of the claim” to give the defendant fair notice of the claim and its basis. Fed. R. Civ. 

P. 8(a)(2); Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007).

A motion to dismiss should be granted if a complaint does not contain “sufficient factual matter, 

accepted as true, ‘to state a claim to relief that is plausible on its face.’” Artrip v. Ball Corp., 735 Fed. 

Appx. 708, 709, 2018 U.S. App. LEXIS 13915, *1, 13, 2018 WL 2329742; Iqbal, 556 U.S. at 678 

(quoting Twombly, 550 U.S. at 570). To meet the plausibility standard, a plaintiff must plead “factual 

content that allows the court to draw the reasonable inference that the defendant is liable for the 

misconduct alleged.” Id. Merely pleading facts that are consistent with liability or stating legal 

conclusions is not sufficient. Id. 

“[W]here the well-pleaded facts do not permit the court to infer more than the mere possibility of 

misconduct, the complaint has alleged—but it has not ‘show[n]’—‘that the pleader is entitled to relief.’ 

” Iqbal, 556 U.S. at 678. While the Court accepts all “well-pled” facts alleged in the complaint as true, it 

is not bound to accept the Plaintiff’s legal conclusions. Id. “[A] plaintiff’s obligation to provide the 

‘grounds’ of his ‘entitle[ment] to relief’ requires more than labels and conclusions, and a formulaic 

recitation of the elements of a cause of action will not do.” Twombly, 550 U.S. at 555 (citing Papasan v. 

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Allain, 478 U.S. 265, 286 (1986)). A complaint will not suffice “if it tenders ‘naked assertion[s]’ devoid 

of ‘further factual enhancement.’ ” Iqbal, 556 U.S. at 677 (citing Twombly, 550 U.S. at 557). Without 

“factual enhancements” sufficient to state a cause of action, the formulaic recitation of generic acts of 

infringement are insufficient to avoid dismissal. See Strategic Operations, Inc. v. Joseph, No. 3-17-cv01539, 2018 WL 3833411, *3 (S.D. Cal., Aug. 13, 2018) (disregarding as conclusory, allegations that 

defendants “continue to make, use, sell, and offer for sale” the accused product, where more specific 

allegations failed to support infringement claim.) A complaint should be dismissed, pursuant to Rule 

12(b)(6), when it lacks “a cognizable legal theory.” Bielskis v. Louisville Ladders Inc., No. 07 C 1411, 

2007 WL 2088583, at *1 (N.D. Ill. July 18, 2007); see also Roper v. Jo-Ann Stores, Inc., 211 Fed. Appx. 

950, 951 (Fed. Cir. 2007) (affirming dismissal where patent requirements could not apply to accused 

product).

ARGUMENTS

1. Plaintiffs Have Failed to Sufficiently Plead Plausible Claims On Its Face

Dismissal is appropriate where “details about the subject-matter of the case [fail] to present a 

story that holds together.’” Grecia v. Walgreen Co., No. 18 C 1848, 2018 WL 7858007, at *2–3 (N.D. 

Ill. Dec. 14, 2018), aff'd, 785 F. App'x 876 (Fed. Cir. 2019) (dismissing complaint where its inherent 

inconsistencies render claim implausible on its face)(quoting Swanson v. Citibank, N.A., 614 F.3d 400, 

404 (7th Cir. 2010)). 

Here, Plaintiffs alleges that Four Counts of Design Patent Infringement against all defendants

while Plaintiffs concurrently contend that “the ’D723 patent and the ’D256 patent have defined the 

fundamental ornamental configurations of the hoverboard product class. The ’D112 patent features a 

soft edge between the central support platform and the fenders, and the ’D195 patent features a sharper 

edge.” See TAC, ¶ 25, Dkt. No. 101.

Plaintiffs’ four design patent bear different designs as shown on Figure 1 of each design patent. 

See TAC, Dkt. No. 101.

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Plaintiffs’ Design Patents

D723 patent

 

D256 patent

D112 patent D195 patent

More specifically, as mentioned above, Plaintiffs confirm at least two of its design patents bear 

different features that “the ’D112 patent features a soft edge between the central support platform and 

the fenders, and the ’D195 patent features a sharper edge.” Id. Indeed, alleged infringing product does

not incorporate two different edges in one product, nor it can. 

Plaintiffs’ general and conclusive allegations are insufficient to allow a court to draw the 

reasonable inference that a defendant is liable for the misconduct of four different design patents.

Therefore, Plaintiffs’ TAC fails to plead claims on its face.

In particular, even if the Court accepts all facts alleged in TAC as true, Plaintiffs fail to plead 

claims that relief can be granted. Instead, based on the comparison chart below, Moving Defendant do 

not infringe Plaintiffs’ design patents, and therefore Plaintiff are not entitled to any relief. 

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2. Even The Court Accepts All Facts Alleged In TAC As True, Plaintiffs Fail To Plead That 

Moving Defendant Has Infringed All Four Design Patent And Plaintiffs Are Entitled To 

Relief

Since Egyptian Goddess, Inc. v. Swisa, Inc., the sole test for determining whether a design patent 

has been infringed is the “ordinary observer” test. Under the “ordinary observer” test, “if, in the eye of 

an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially 

the same, if the resemblance is such as to deceive such an observer, inducing . . .purchase [of] one 

supposing it to be the other, the first one patented is infringed by the other.” Egyptian Goddess, Inc. v. 

Swisa, Inc., 543 F.3d 665, 670 (Fed. Cir. 2008).

The alleged infringing evidence “Moving Defendant’s Amazon listing” attached to TAC as 

Exhibit 1-Part 7 in support of Plaintiffs’ position as to Moving Defendant’s alleged infringement merely 

provides images in aspects of product functions, not a comparison of product designs. Moreover, the 

“Customer images” in the alleged infringing evidence are so vague that no observer could have 

compared the similarities between the Plaintiffs’ design patent and Moving Defendant’s allege 

infringing product.

Screenshots of the Alleged Infringing Evidence Attached to TAC as Exhibit 1

 

When comparing Moving Defendant’s alleged infringing product listing and Plaintiffs’ design 

patents, an ordinary observer likely gives more attention to FIG. 5 of the cover and wheel design. As 

shown in the chart below, it is rather clear that the degree of fender coverage of wheels and wheel 

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designs of Plaintiffs’ design patents and degree of fender coverage of wheels and wheel design of 

Moving Defendant’s alleged infringing product are different.

Plaintiffs’ Design Patents

D723 patent D256 patent 

D112 patent. D195 patent

Screenshots of Alleged Infringing Evidence of Moving Defendant’s Product

Attached to TAC as Exhibit 1-Part 7

 

Even if Plaintiffs are to provide Moving Defendant’s alleged infringing product for the purpose 

to compare similarities, as shown below. Plaintiffs’ claims fail in that the designs are not similar

between Plaintiffs’ design patents and Moving Defendant’s alleged infringing product, including but not 

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limited to the different designs on the central support platform, the middle portion of the product, the

fender, and etc. 

Plaintiffs’ Design Patents

D723 patent

 D256 patent

D112 patent

 D195 patent

Moving Defendant’s Alleged Infringing Product

 

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CONCLUSION

For the ongoing reasons, Plaintiffs make no plausible allegations that Moving Defendant 

infringed their Design Patents. Therefore, Moving Defendant respectfully requests that this 

Honorable Court dismiss this case pursuant to Rule 12(b)(6) for failure to state a claim, and other 

grant such other and further relief as may be just and proper.

Date: 4/29/2021

Respectfully Submitted: 

/s/ Tianyu Ju

Tianyu Ju, Esq.

Glacier Law PLLC

200 East Randolph, Suite 5100

Chicago, IL 60601

Iris.ju@glacier.law

Tel: +1 (312) 448-7772

Fax: +1 (312)-801-4587

Attorney for Defendant

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CERTIFICATE OF SERVICE

I HEREBY CERTIFY that on this April 29, 2021, I electronically filed the foregoing file 

with the Clerk of Court using the CM/ECF system, and service was perfected on all counsel of record 

and interested parties through this system, which will deliver a true and correct copy of the foregoing 

documents via CM/ECF.

Date: 4/29/2021 /s/ Tianyu Ju

Tianyu Ju, Esq.

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