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180s Inc. and Walgreen are back in court over ear warmers

A discrepancy over the design of ear warmers has 180s Inc. suing the Walgreen Co. for the third time since 2009.

The company filed suit on July 18 in U.S. District Court in Baltimore, alleging that Illinois-based Walgreen sold the patent-infringing products in its stores. Additionally, the suit claims that its product was sold alongside an inexpensive knock-off product, creating unfair competition.

After an agreement to sell the product in stores was reached between the two companies, separate from the lawsuits, Walgreen “abandoned its commitment to sell 180s” and “failed to timely pay for 180s” after initial payment demands, resulting in a breach of contract, according to the complaint.

Walgreen operates more than 60 stores in Maryland, and has been the subject of previous lawsuits over the issue of selling the knock-offs in its stores.

According to the complaint, in 2004, 180s filed suit against Walgreen for its sale of a knock-off “Ear Brand” product. The case was settled in 180s’ favor.

In 2009, 180s again claimed that Walgreen was selling patent-infringing ear warmers. Walgreen pulled the product off its shelves, and handed over all gross revenues from its infringing sales to 180s.

A year later, according to the complaint, Walgreen began selling knock-off ear warmers once more, calling the product the “Ear Cover.” The complaint argues that the latest knock-off brand is similar to 180s’ product in a number of ways, including its design and purpose.

Phone messages left for representatives of Walgreen were not returned.

James B. Astrachan, of Astrachan Gunst Thomas & Rubin PC, believes that in the right circumstances, the positives of patent infringement can sometimes outweigh the legal troubles for companies like Walgreen. Astrachan is not personally involved in the 180s-Walgreen litigation.

“Most manufacturers will avoid this, because it’s expensive,” said Astrachan, who teaches trademark and unfair competition law at the University of Maryland Francis King Carey School of Law. “But it may be worth a gamble.”

According to Astrachan, if Walgreen is able to prove in court that the product is different enough from 180s’ patented design, then there is no infringement.

Additionally, during the course of litigation, there’s always the possibility that the sides can work out a “reasonable royalty,” with the infringing company compensating the accuser, he said.

According to the complaint, “180s designs, manufactures and sells innovative performance wear, including ear warmers, gloves and glasses.”

The company, founded in 1994 by two University of Pennsylvania professors, was the first to patent the “wrap-behind-the-head ear warmer.” Since then, several other companies have attempted to emulate the product.

In the past, 180s has filed numerous suits against distributors across the country, stopping national retailers such as J.C. Penney Co. Inc., as well as smaller vendors in shopping malls and other stores, from selling infringing products.