On June 12, 2015, eos Products, LLC and The Kind Group LLC (collectively, "EOS")—both of New York, New York—filed a complaint requesting that the ITC commence an investigation pursuant to Section 337.
The complaint alleges that the following entities (collectively, the "Proposed Respondents") unlawfully import into the U.S., sell for importation, and/or sell within the U.S. after importation certain lip balm products, containers for lip balm, and components thereof that infringe one or more claims of U.S. Patent No. 8,888,391 (the '391 patent):
- OraLabs, Inc. of Parker, Colorado
- CVS Health Corp. of Woonsocket, Rhode Island
- CVS Pharmacy, Inc. of Woonsocket, Rhode Island
- Walgreens Boots Alliance, Inc. of Deerfield, Illinois
- Walgreen Co. of Deerfield, Illinois
- Dollar Tree, Inc. of Chesapeake, Virginia
- Dollar Tree Stores, Inc. of Chesapeake, Virginia
- Five Below Inc. of Philadelphia, Pennsylvania
- Wuxi Sunmart Science and Technology Co., Ltd. of China
- Wuxi Sunmart Plastic Co., Ltd. of China
According to the complaint, the '391 patent generally relates to a lip balm applicator. In particular, the applicator has a receptacle that includes upper and lower portions that may be connected together such as with interconnecting threads. Lip balm is mounted in the lower portion on a support platform. The receptacle may be substantially spherical, substantially cylindrical with rounded surfaces, egg-shaped, ovate, or the like.
In the complaint, EOS states that the Proposed Respondents import and sell products that infringe the '391 patent. The complaint specifically refers to the beauty 360 Revo lip balm product, the "Well at Walgreens" Revo lip balm product, the Revo ChapIce lip balm product, and the three-pack Revo ChapIce lip balm product as infringing products.
Regarding domestic industry, EOS states that its EOS-branded lip balm products practice the asserted patents. EOS further states that both it and its contract manufacturers/licensees have made and continue to make significant investments in plant and equipment, a significant employment of labor or capital, and substantial investments in the exploitation of the '391 patent in the U.S. The complaint refers to a confidential declaration of one Sanjiv Mehra as providing the details of EOS's and its contract manufacturers/licensees' domestic investments.
As to related litigation, EOS states that on June 4, 2015, it filed a complaint against the Proposed Respondents in the U.S. District Court for the District of Delaware alleging infringement of the asserted patents.
With respect to potential remedy, EOS requests that the Commission issue a limited exclusion order and cease and desist orders directed at the Proposed Respondents and others acting on their behalf.