Wepay Global Payments LLC v. McDonald's Corporation

N.D. Illinois

Wepay Global Payments LLC v. McDonald's Corporation

DecidedNovember 29, 2022

Docket1:22-cv-01064

StatusUnknown

This text of Wepay Global Payments LLC v. McDonald's Corporation (Wepay Global Payments LLC v. McDonald's Corporation) is published on Counsel Stack Legal Research, covering District Court, N.D. Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Wepay Global Payments LLC v. McDonald's Corporation, (N.D. Ill. 2022).

Pincite

Opinion

IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS EASTERN DIVISION

WePAY GLOBAL PAYMENTS LLC,

Plaintiff,

v. Case No. 22 C 1064

McDONALD’S CORPORATION, Judge Harry D. Leinenweber

Defendant.

MEMORANDUM OPINION AND ORDER

I. BACKGROUND

WePay Global Payments LLC (“WePay”) is the owner of a United States Design Patent No. D930,702 (the “702 Patent”) that is entitled “Display Screen with animated user interface.” (702 Patent at 1, Compl. at 7, Dkt. No. 1-1.) It is suing McDonald’s Corporation (“McDonald’s”) for infringement. McDonald’s has moved for dismissal under FED. R. CIV. P. 12(b)(6) for failure to state a claim that is plausible on its face. (Dkt. No. 15.) The Complaint describes the patent in suit as “a unique ornamental design for a display screen portion with animated graphic user interface” (“GUI”). (Compl. ¶ 8, Dkt. No. 1.) A GUI is a way to command a computer operating system using graphic symbols. Graphical User Interface Law & Legal Definition, USLEGAL.COM, http:// definitions.uslegal.com/g/graphical-user- interface/ (last visited Nov. 18, 2022). GUIs have been around since the 1970s. Id. Elements include a window that displays information on the screen, a menu that contains a list of selections that allows the user to make choices, and small picture

icons. Graphical User Interface (GUI), TUTORIALS POINT, https://www.tutorialspoint.com/graphical-user-interface-gui (last visited Nov. 28, 2022). II. LEGAL STANDARD To survive a motion to dismiss pursuant to FED. R. CIV. P. 12(b)(6), “a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). “A claim has factual plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S.

at 678. Although the Complaint need not contain specific facts, it must provide the defendant with “fair notice” of the plaintiff's claim and the ground upon which it rests. Indep. Tr. Corp. v. Stewart Info. Servs. Corp., 665 F.3d 930, 934 (7th Cir. 2012) (citing Erickson v. Pardus, 551 U.S. 89, 93 (2007)). A district court may dismiss with prejudice when the plaintiff fails to demonstrate how an amendment would cure the deficiencies in the Complaint. Gonzalez-Koeneke v. West, 791 F.3d 801, 808 (7th Cir. 2015). III. DISCUSSION

The Complaint does not describe with words the McDonald’s app that allegedly infringes the 702 patent. Instead, the Complaint shows pictures of the app. The first picture shows a graphic containing a series of squares and the words “Earn Points.” (Claim Charts, Compl. at 15, 19, Dkt. No. 1-2.) There is a total of eight squares, three of which are at the SW, NW, and NE corners that form the shape of a larger square. (Id.) In the remaining corner (SE) is a series of smaller squares, four of which are located at the four corners and the fifth square in the middle. (Id.) The second picture shows an order form that lists McDonald’s menu with pictures of the food items together with their descriptive names. (Id. at 16, 20.) The third picture shows a list of available condiments, such as cream, sugar, salt, and pepper. (Id. at 17,

21.) There are other check boxes located at the bottom of the second and third picture, such as “home,” “order,” and “earn points.” (Id. at 16, 17, 20, 21.) WePay compares these three McDonald’s pictures with three of the five “drawing sheets” of the patent at issue. (702 Patent, Compl. at 9-13, Dkt. No. 1-1.) Figure 3 shows a zero dollar ($0.00) over a square with three smaller squares at the corners (SW, MW, and NE) and the words “Send”, “Request”, and “Split” at the bottom. (Id. at 11.) The big box consists of broken lines, and each smaller box consists of a small solid square surrounded by two larger dotted line squares. (Id.) Figure 4 of the patent in suit consists

of an oblong at the top of the figure created by a west to east dotted line. (Id. at 12.) Beneath the oblong is a series of dotted line” circles, consisting of two rows of three circles at the top, with four similar sized circles extending down along the left edge. (Id.) Figure 5 consists of the zero dollar ($0.00) with a large, dotted line square beneath it. (Id. at 13.) The word “cancel” is at the bottom. (Id.) Both sides agree that to prove infringement, the claim must withstand the “ordinary observer test,” which considers whether “in the eye of an ordinary observer, giving such attention as a purchaser usually gives, two designs are substantially the same.” Egyptian Goddess, Inc. v. Swisa, Inc., 543 F.3d 665, 670 (Fed. Cir. 2008) (en banc). Moreover, design patents only protect “the

novel, ornamental features of the patented design.” Oddz Products, Inc. v. Just Toys Inc., 122 F.3d 1396, 1405 (Fed. Cir. 1997). The overall impression is the key and there is no infringement if it is based solely on a similarity of a specific feature where the overall design is dissimilar. Id. In other words, the comparison is of the design as a whole, not a specific point or points of novelty. Hall v. Bed, Bath and Beyond, 705 F.3d 1357 (Fed. Cir. 2013). As far as the Court can tell, Plaintiff’s main argument is

that the series of three boxes of indeterminate size on Figure 3, are comparable to McDonald’s symbol of 8 boxes which are on the same page as the list of its specials of the day. (The boxes are considered of indeterminate size because Plaintiff disclaimed any specific size or distance between them. This means that the boxes could be of any size or location, vis-a-vis, each other.) Figure 4, the page with the ten-circle page, presumably is meant to be confusingly similar to any app that includes a menu such as McDonald’s. Figure 5, the square of indeterminate size, is presumably meant to be confusingly similar to the third McDonald’s screen, which depicts a list of condiments. After reviewing the Plaintiff’s exhibit, the Court does not

see how any observer, ordinary or extraordinary for that matter, could ever find McDonald’s app confusingly similar to Plaintiff’s patented design. Comparing three boxes of indeterminate size with a list of McDonald’s specials or comparing a series of ten circles of indeterminate size with McDonald’s menu, or, comparing a plain box of indeterminate size with a list of condiments, could not possibly result in a confused observer. Plaintiff’s design appears to be the antithesis of what a design patent is supposed to protect, i.e., novel, and ornamental features. Oddz Productions, 122 F.3d at 1405. As pointed out above, GUI apps have been around a long time. Plaintiff’s attempt to compare what is essentially nothing but unadorned squares and circles with McDonald’s sales items, food menu, and condiments, might perhaps be good fodder for a Seinfeld episode, but borders on the ridiculous in a federal court.

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