Franek v. Walmart Stores, Inc. et al

Filing 47

MEMORANDUM by Clemens Franek in Opposition to motion for summary judgment 41 (Attachments: # 1 Declaration Franek, # 2 Exhibit Beach Towel shapes, # 3 Exhibit Notice to REI, # 4 Exhibit Claim Charts)(aac, )

French Patent 2,399,29

Claims

Defendant's Trademarked for a Round Beach Towel

Design

Towel or cloth for hanging from a hook is pref. Circular and has loop or hole pref. in center. The towel or cloth suspended from a hook is designed to have the shortest possible hanging length, and is therefore pref. Circular. It has one or more attachments for handling it or a hook and they are preferably situated near the center of the towel or cloth. In order to alter the hanging height of the towel or cloth, the position of the attachment, or loop, can be moved from the center. The attachment can be in the form of a piece of material attached or a buttonhole in the towel of the cloth itself.

Defendant's Product design does not consist of attachments to a towel or cloth for hanging on a hook, nor does Defendant's product contain moveable attachments in the form of hooks, as is required in the patent.

1

US 2,803,845 Bradford CIRCULAR TOWEL Claims Plaintiff's Trademarked Design for a Round Beach Towel Plaintiff's Product design does not consist of a "combination" nor does Plaintiff's trademarked product design include the following: 1.) a reinforcing disc, 2.) a pair of crossed straps positioned on said disc with the ends of said straps extending under the edge of said disc, c.) stitching extending through said body, d.) said disc and said straps securing said body, said disc and said straps together, with said disc disposed centrally of said body, e.) an adjustable elastic suspension member extending under said crossed straps for suspending said body, and f.) means joining the opposite ends of said elastic suspension member to form a closed loop.

What is claimed is: In combination, a towel and suspension means therefore comprising, a circular fabric body, a reinforcing disc for said body, a pair of crossed straps positioned on said disc with the ends of said straps extending under the edge of said disc, stitching extending through said body, said disc and said straps securing said body, said disc and said straps together, with said disc disposed centrally of said body, an adjustable elastic suspension member extending under said crossed straps for suspending said body, and means joining the opposite ends of said elastic suspension member to form a closed loop.

2

US 3,660,861 Delmonico COMBINATION ROUND TOWEL AND HOLDER Claim 1 In combination: a. a hanger including a first portion for anchoring the same to a support and a second portion detachably connectable to an article and including a conically shaped member with an undulating outer surface, said undulations being transverse to the longitudinal axis of said member, facilitating forming folds in a sheet of material suspended therefrom; an d b. a circular towel detachably connected to said second portion of said hanger. Claim 2 The combination defined in claim 1 wherein said towel is connected to the hanger at the approximate geometric center of said towel. Claim 3 The combination as defined in claim 1, wherein said second portion of said hanger is connected to said first portion by a swivel joint. Claim 4 The combination as defined in claim 1, wherein said towel has a longitudinally extending slit at or adjacent its geometric center facilitating detachably connecting said towel to said hanger. Not present in Defendant's trademarked design. Not present in Defendant's trademarked design. Not present design. in Defendant's product Defendant's Trademarked for a Round Beach Towel Design

Does not contain a combination. a.) Does not contain a hanger a hanger including a first portion for anchoring the same to a support and a second portion detachably connectable to an article and including a conically shaped member with an undulating outer surface, said undulations being transverse to the longitudinal axis of said member, facilitating forming folds in a sheet of material suspended therefrom; b.) Does not consist of a circular towel detachably connected to said second portion of said hanger.

3

US 4,794,029 Tennant TOWEL THAT CONVERTS INTO A BAG Claim 1 A towel-bag construction comprising: - a non-rectangular towel; - a casing formed at the perimeter of said towel; - a cord threaded through said casing; an d - a section of relatively non-stretchable fabric of a shape geometrically similar to that of said towel attached with its edges equidistant from the edges of said towel. Claim 2 A towel-bag construction as set forth in claim 1 wherein said towel is circular in shape, whereby a user while sunbathing may reposition his or her body towards the changing angle of the sun while the towel remains stationary. Claim 3 A towel-bag construction as set forth in claim 1 in which said casing is formed of the material of said towel. Claim 4 A towel-bag construction as set forth in claim 1 in which said casing is formed of a plurality of separated parts, with said cord exposed between said parts. Claim 5 A towel-bag construction as set forth in claim 4 in which said cord is continuous and may be drawn up to bring the edges of said towel together to form a bag. Not present in Defendant's trademarked design Not present in Defendant's trademarked design Claim 2 is dependent on claim 1 and, as stated in dependent claim 2 must include all of the sub-claims of independent claim 1. Therefore, Defendant's trademarked design does not include the elements claimed in dependent claim 2. Defendant's Trademarked for a Round Beach Towel Design

Not present in Defendant's trademarked design Not present in Defendant's trademarked design Not present in Defendant's trademarked design Not present in Defendant's trademarked design

4

Claim 6 A towel-bag construction as in claim 3, in which said casing is formed of at least three separated parts, with said cord extending continuously through each casing part and exposed for manual gripping at the separation between said casing parts. Claim 7 A towel-bag construction as in claim 1 in which said section of non-stretchable fabric is formed of a woven nylon fabric, relatively non-absorbent as compared to the towel. Claim 8 A towel-bag construction as in claim 7 in which said section of non-stretchable fabric is one quarter the area of said towel. Claim 9 A towel-bag construction as in claim 1 in which said casing is formed of a woven fabric cut on the bias. Claim 10 A towel-bag construction comprising: a circular towel of woven absorbent fabric; a central circular section of relatively non-absorbent fabric material of an area one quarter the area of said towel; a plurality of spaced casing sections formed along the edge of said towel; and a continuous cord extending through said casing sections. Not present in Defendant's trademarked design Not present in Defendant's trademarked design Not present in Defendant's trademarked design Not present in Defendant's trademarked design

5

US 4,991,978 Ostrowski TOWEL BAG COMBINATION APPARATUS Claim 1 A towel-bag apparatus which is adapted to move between an open and closed position and which in the open position provides a towel suitable for drying and beach purposes, and in the closed position provides an enclosed bag with a carrying strap, and which towel-bag apparatus comprises in combination: a) a generally circular, fabric towel element having a reinforced peripheral web and a plurality of holes in the web and having a top surface and a bottom surface, the bottom surface having a generally centrally reinforced section; b) a loop means generally centrally secured to the the reinforced section; c) a ring means secured to the reinforced peripheral web; and d) a draw cord means having a one and an other end, the draw cord passing through the holes in the reinforced web of the towel element, so as to permit the circular towel element to move between an open position for towel or beach with the draw cord in a relaxed, extended position use and a closed position for bag use with the draw cord in a drawn position, the draw cord means including a clip-type closure means at the one end and the other end so as to permit the said clip-type enclosure means to engage the loop means or the ring in the closed position to form a carrying strap for the towel-bag apparatus. Claim 2 The towel-bag apparatus of claim 1 wherein the generally circular towel element has a diameter of from four to Not present in Defendant's Trademarked design Defendant's Trademarked for a Round Beach Towel Design

Not present in Defendant's Trademarked design

Not present in Defendant's Trademarked design

Not present in Defendant's Trademarked design Not present in Defendant's Trademarked design Not present in Defendant's Trademarked design

6

six feet and wherein the reinforced section is generally circular and has a diameter of from about six to eighteen inches. Claim 3 The towel-bag apparatus of claim 1 wherein the towel element comprises a terrycloth fabric an d th e central reinforced section is a non-terrycloth fabric. Claim 4 The towel-bag apparatus of claim 1 wherein the loop means comprises a cloth loop means sewn to the reinforced section of the towel element. Claim 5 The towel-bag apparatus of claim 1 wherein the ring means comprises a metal ring means securely fastened to the reinforced web adjacent the one and other end of the draw cord means. Claim 6 The towel-bag apparatus of claim 1 wherein the enclosure means comprises a spring loaded clip at the one and the other end of the draw cord means. Claim 7 A towel-bag apparatus adapted to be placed in an open position which provides a towel suitable for beach or drying purposes and in the closed position provides an enclosed bag with a carrying strap, and which towel-bag apparatus comprises in combination: Not present in Defendant's Trademarked design Not present in Defendant's Trademarked design Not present in Defendant's Trademarked design Not present in Defendant's Trademarked design Not present in Defendant's Trademarked design

7

a) a generally circular, terrycloth towel element having a diameter of about 4 to 6 feet and having a reinforced peripheral web edge and a plurality of holes in the web and having a top surface and a bottom surface, the bottom surface having a generally circular reinforced section of a non-terrycloth-type material and having a cloth loop centrally secured to the reinforced section and a ring secured to the reinforced peripheral web; an d b) an elastic-type draw cord means having a one and the other end and passing through the holes in the web in an alternating fashion so as to permit the circular towel element to move between the open position for towel-beach use and a closed position for bag use, the draw cord means including a spring loaded clip at the one and the other end so as to permit the draw cord means to pass through the loop and the spring loaded clip to engage the ring in the closed position to form a carrying strap for the towel-bag apparatus in the closed position.

Not present in Defendant's Trademarked design

Not present in Defendant's Trademarked design

8