According to a report by LAW360, US e-cigarette company VPR Brands is urging the federal court in Georgia to dismiss a countersuit by Chinese e-cigarette brand ELFBAR, claiming that its latest product does not have any "unique features.
VPR Brands informed the court that the latest disposable e-cigarette series ELFBAR from this Florida-based e-cigarette company, which shares the same name as VPR's new e-cigarette brand, may have some similarities with IMiracle's ELFBAR (Heaven Gifts). However, these similarities are merely common features within the e-cigarette industry.
IMiracle (Heaven Gifts) has sought to dismiss the counterclaims on Tuesday, stating that, apart from making allegations, IMiracle (Heaven Gifts) has not provided specific and concrete evidence of how VPR's ELFBAR influenced the styles of other ELFBARs.
"What are the exact features that VPR has copied, including its shape, color, font, and style? VPR claims to have no knowledge," stated IMiracle (Heaven Gifts) in a motion.
The recent bid by this American company aims to initiate a second legal front in the ongoing legal battle over the "Elf" trademark, in which IMiracle (Heaven Gifts) has emerged as the frontrunner in raising allegations of trademark infringement.
VPR Brands filed a lawsuit for the first time in October, alleging in the federal court of Florida that companies like IMiracle (Heaven Gifts) have infringed upon VPR's "Elf" trademark through the sale of ELFBAR.
The United States relied on its registration with the US Patent and Trademark Office to persuade Judge Aileen M. Cannon to impose a preliminary injunction on companies such as IMiracle (Heaven Gifts) in February, preventing them from selling e-cigarettes bearing the Elf name.
Although the Florida-based e-cigarette manufacturer initially focused on their pod system under the Elf brand, VPR has now launched a new type of disposable e-cigarette called ELFBAR. They have also begun investigating a chain smoke shop called Vape Loft, despite a court order prohibiting the store from selling IMiracle (Heaven Gifts) ELFBAR products, and have filed a lawsuit against these retail stores in the Georgia Federal Court.
This prompted IMiracle (Heaven Gifts) and other Chinese companies to join the fray, as third-party defendants in the lawsuit and raised counterclaims.
The core issue in Miracle (Heaven Gifts) counterclaim is that VPR brand is promoting "low-quality" and "counterfeit" Chinese product called Elfbar. Miracle (Heaven Gifts) claims to have spent several years building this brand, while VPR is attempting to deceive consumers.
VPR believes that cross-claims should be largely dismissed based on the initially proposed rules, referring to these claims as counterclaims originally brought forth by Chinese companies in the state of Florida.
However, the counterclaims made by IMiracle (Heaven Gifts) now include additional allegations of trademark infringement. Nonetheless, VPR argues that the Chinese company's ELFBAR product lacks any distinctive features for VPR to imitate.
The motion put forth by VPR alleges that in order to substantiate this claim, IMiracle (Heaven Gifts) must prove that VPR's product has stolen mainly non-functional features.
Both of these disposable e-cigarettes have a "bar-shaped" design, which is an industry standard, so it can't be said to be a unique feature of IMiracle (Heaven Gifts) products. Although IMiracle (Heaven Gifts) claims that this American company copied its color scheme, VPR points out that the color is related to the corresponding flavor. This actually makes the paint a functional element of the product.
Finally, the alleged "font and style" elements stolen from IMiracle (Heaven Gifts) products were never further defined by the counterclaim.
VPR states that "IMiracle (Heaven Gifts) fails to adequately describe the alleged trade dress, apart from making vague and conclusory assertions regarding the 'shape, color, font, and style' of the ELFBAR products." "Furthermore, IMiracle (Heaven Gifts) does not provide any factual evidence to support its claims, aside from comparing the two products.
Chinese companies are urging a federal court in Georgia, just like in Florida, to impose a ban on VPR. They claim that VPR is taking advantage of their inability to sell ELFBAR and is instead selling their own "low-quality" and "counterfeit" e-cigarette, which they allege is a copy of IMiracle (Heaven Gifts) e-cigarette.
The two companies may ultimately reach an agreement to settle their trademark disputes, but the outcome seems to heavily depend on how Judge Cannon rules on the two applications submitted by the foreign entity.
The motions involve lifting an existing preliminary ban on Chinese companies selling ELFBAR, as well as proposing a ban on U.S. companies selling so-called "counterfeit" ELFBAR products.
Judge Kanong has suspended the lawsuit, awaiting the appeal by the Chinese company to the Federal Circuit Court in an attempt to overturn the ban. These foreign entities have expressed regret over this prohibition and informed the Federal Circuit Court that this is an erroneous decision resulting in them losing "tens of millions" of dollars.
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