"out of stock" not shown to be misleading when Walmart stopped stocking P's product

Stiles v. Walmart, Inc., --- F.Supp.3d ----, 2022 WL 16806210, No. 2:14-cv-02234-DAD-DMC (E.D. Cal. Nov. 8, 2022)

Stiles invented the “Stiles Razor,” a patented disposable razor with a narrow blade for precise shaving. Many years ago, Walmart agreed to sell the Stiles Razor in its stores, but about ten years ago, Walmart terminated the relationship. Stiles alleged that it sold knockoff razors instead, infringing her patents, violating trademark and antitrust law, and interfering with her economic interests. The court granted partial summary judgment to Walmart.

The Stiles razor appeals to people who want more precision than a wider-bladed disposable razor can offer, for example with goatees, moustaches, sideburns, eyebrows, and bikini lines. Walmart shelved it with other hair-removal products in the “wet shave” department, including standard-size razors, eyebrow razors, tweezers, waxing strips, and other depilatories. “Despite some early success, sales of the razor did not meet Walmart’s or Stiles’s expectations in the long term.” Walmart moved her razors to the beauty department, but that didn’t help enough. Stiles argued that, when it moved her razors, Walmart was already offering a similar razor, at least in part because (according to sales meeting notes) “[Walmart] benefits from not needing a one sku vendor.” It accepted a proposal from another supplier that made a lot of stuff for it, at a cost and price point similar to the Stiles Razor. That supplier worked with a foreign supplier to mimic the Stiles Razor, using “photographs and physical samples of the Stiles razor as references.”

comparisons

The antitrust claims failed because they were antitrust claims.

The remaining design patent claims also failed.

design patent

First, the court filtered out the functional features: the narrow head that allowed detailed or precise shaving; the handle angle and length that allowed a comfortable shaving position; the gripping surface for a secure hold and precise control.

At least four ornamental aspects remained, two of them prominent: the gripping surface was cylindrical, and it had a constant radius along the handle’s axis, and the end of the razor opposite the shaving head was flat, not rounded. But ea side-by-side comparison of the two designs showed they were dissimilar overall:

In the accused design, the grip was much wider than the handle, but in only one dimension, and the bulge had a diamond-like shape, not a cylinder with a constant radius. The accused design’s grip was also contoured and textured, not angular and smooth. At the end of the handle, the accused design was rounded; the Stiles design was flat. “Overall, these and other features give the American razor a flowing, contoured look and the Stiles Razor an angular, minimalistic look.”

Even if differences are harder to see when the razors are still in their packaging, that’s not the test, and anyway “the differences described above are plain even when the razors are still in their packaging.”

Utility patent claims against one version also failed for noninfringement.

False advertising: Stiles alleged that Walmart showed her razor on its website even after Walmart terminated their relationship, but stated that the razor was “out of stock,” allowing Walmart to market its own razors to people searching for her razor. But she needed to show that consumers actually received the allegedly misleading message. It wasn’t enough that people have said they were frustrated not to find her razors in Walmart stores.