Connor Sport Court International, Inc. v. Rhino Sports, Inc., et al

Filing 8

Connor Sport Court International, Inc. v. Rhino Sports, Inc., et al

Doc. 8

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

FENNEMORE CRAIG, P.C. John D. Everroad (No. 002484) Ray K. Harris (No. 007408) Jamie A. Brown (No. 022830) 3003 North Central Avenue Suite 2600 Phoenix, Arizona 85012-2913 Telephone: [phone] Email: [e-mail] Email: [e-mail] Email: [e-mail] Attorneys for Defendants Rhino Sports, Inc. and John E. Shaffer UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA Connor Sport Court International, Inc., a California corporation, Plaintiffs, v. Rhino Sports, Inc., an Arizona corporation; and John E. Shaffer, individually; and Does 1 through 10, Inclusive, Defendant. No. CV-06-03066-PHX-SRB ANSWER

Defendants Rhino Sports, Inc. and John E. Shaffer answer the Complaint as follows: PARTIES, JURISDICTION AND VENUE 1. Defendants lack sufficient knowledge to form a belief as to the truth of the

allegations of paragraph 1. 2. Answering paragraph 2, Defendants admit Rhino Sports, Inc. ("Rhino") is

an Arizona corporation with its principal place of business in Scottsdale, Arizona.

PHX/RHARRIS/1877531.1/16987.002

Case 2:06-cv-03066-JAT

Document 8

Filed 02/05/2007

Page 1 of 7
Dockets.Justia.com

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

3.

Answering paragraph 3, Defendants admit John Shaffer is a founder, officer

and shareholder of Rhino and a resident of Arizona. 4. state law. Defendants admit the Complaint alleges violations of the Lanham Act and Defendants deny the alleged violations occurred and deny the remaining

allegations of paragraph 4. 5. Answering paragraphs 4, 5 and 6, Defendants admit this Court has

jurisdiction and venue is proper in this District. GENERAL ALLEGATIONS 6. Answering paragraph 8, Defendants admit Plaintiff sells recreational

basketball, volleyball and tennis court surfaces for residential users. 7. Defendants deny that Plaintiff was the founder of the recreational flooring

industry or that SPORT COURT is entitled to trademark protection or is famous. Defendants allege that Plaintiff's predecessor-in-interest went bankrupt. Defendants lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 9. 8. Defendants admit that Plaintiff distributes its products through a network of Defendants lack knowledge or

distributors and dealers and engages in advertising.

information sufficient to form a belief as to the truth of the remaining allegations of paragraph 10. 9. Defendants admit U.S. trademark registration No. 1,727,818 was issued by Defendants lack knowledge or

the United States Patent and Trademark Office.

information sufficient to form a belief as to the truth of the remaining allegations of paragraph 11. 10. Defendants admit U.S. trademark registration No. 1,155,585 was issued by Defendants lack knowledge or

the United States Patent and Trademark Office.

P H X / R H A R R I S / 1 8 7 7 5 3 1 . 1 / 1 6987.002

Case 2:06-cv-03066-JAT

Document 8 - 2 Filed 02/05/2007

Page 2 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

information sufficient to form a belief as to the truth of the remaining allegations of paragraph 12. 11. Defendants admit U.S. trademark registration No. 1,100,976 was issued by Defendants lack knowledge or

the United States Patent and Trademark Office.

information sufficient to form a belief as to the truth of the remaining allegations of paragraph 13. 12. Defendants admit U.S. trademark registration No. 1,177,220 was issued by Defendants lack knowledge or

the United States Patent and Trademark Office.

information sufficient to form a belief as to the truth of the remaining allegations of paragraph 14. 13. Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations of paragraph 15. 14. 15. Defendants admit the allegations of paragraph 16 and 17. Answering paragraphs 18 and 19, Defendants admit Plaintiff's predecessor-

in-interest entered into a Settlement Agreement on March 9, 2004 and a permanent injunction was entered pursuant to the Settlement Agreement on March 23, 2004. 16. Defendants admit Plaintiff's predecessor-in-interest has enlisted the

assistance of Rhino in enforcing the Settlement Agreement and injunction. Defendants lack knowledge or information sufficient to form a belief as to the truth of the remaining allegations of paragraph 20. 17. 18. Defendants deny the allegations of paragraphs 21-24. Answering paragraph 25, Defendants admit Plaintiff's predecessor-in-

interest sent the letter attached to the Complaint as Exhibit E. Defendants deny any violation of the permanent injunction.

P H X / R H A R R I S / 1 8 7 7 5 3 1 . 1 / 1 6987.002

Case 2:06-cv-03066-JAT

Document 8 - 3 Filed 02/05/2007

Page 3 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

19.

Answering paragraph 26, Defendants admit providing the responsive letter

attached to the Complaint as Exhibit F and that Defendants deny any violation of the permanent injunction. 20. Answering paragraph 27, Defendants admit Plaintiff's predecessor-in-

interest sent the letter dated December 1, 2005 attached to the Complaint as Exhibit G. 21. Answering paragraph 28, Defendants admit providing the responsive letter

attached to the Complaint as Exhibit H. 22. Answering paragraph 29, Defendants admit Plaintiff's predecessor-in-

interest sent the letter dated March 6, 2006 attached to the Complaint as Exhibit I. Defendants deny any violation of the Settlement Agreement. 23. Defendants deny the allegations of paragraphs 30-34. FIRST CAUSE OF ACTION (Trade mark Infringement, 15 U.S.C. §1114(a)) 24. Answering paragraph 35, Defendants incorporate by reference their answers

to paragraph 1-34 of the Complaint. 25. Defendants deny the allegations of paragraphs 36-42. SECOND CAUSE OF ACTION (Trade mark Dilution, 15 U.S.C. §1125(c)) 26. Answering paragraph 43, Defendants incorporate by reference their answers

to paragraphs 1-42 of the Complaint. 27. Defendants deny the allegations of paragraphs 44-47. THIRD CAUSE OF ACTION (Unfair Competition, 15 U.S.C. §1125(a)(1)(A)) 28. Answering paragraph 48, Defendants incorporate by reference their answers

to paragraphs 1-47 of the Complaint. 29. Defendants deny the allegations of paragraphs 49-52.
Document 8 - 4 Filed 02/05/2007

P H X / R H A R R I S / 1 8 7 7 5 3 1 . 1 / 1 6987.002

Case 2:06-cv-03066-JAT

Page 4 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

FOURTH CAUSE OF ACTION (Breach of Contract) (Utah and Arizona Common Law) 30. Answering paragraph 53, Defendants incorporate by reference their answers

to paragraphs 1-52 of the Complaint. 31. Answering paragraph 54, Defendants admit they entered into a Settlement

Agreement with Plaintiff's predecessor-in-interest on or about March 9, 2004. 32. Answering paragraph 55, Defendants deny Plaintiff has performed its

obligations under the Settlement Agreement and allege Plaintiff has breached its obligation of good faith and fair dealing. 33. Defendants deny the allegations of paragraph 56. FIFTH CAUSE OF ACTION (Good Faith) 34. Answering paragraph 57, Defendants incorporate by reference their answers

to paragraphs 1-56 above. 35. Answering paragraph 58, Defendants admit the parties entered into a

Settlement Agreement and that both parties were under an obligation of good faith and fair dealing as a result. 36. Defendants deny the allegations of paragraphs 59 and 60 and allege Plaintiff

has breached the obligation of good faith and fair dealing resulting in damages to Defendants. 37. herein. SEPARATE AND AFFIRMATIVE DEFENSES 38. Defendants allege the term SPORT COURT is generic. Defendants deny every allegation of the Complaint not expressly admitted

P H X / R H A R R I S / 1 8 7 7 5 3 1 . 1 / 1 6987.002

Case 2:06-cv-03066-JAT

Document 8 - 5 Filed 02/05/2007

Page 5 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

39.

Defendants allege use of the term SPORT COURT as an Ad Word on

Google is not a trademark use. 40. Defendants allege Plaintiff's contract claims are barred by Plaintiff's prior

material breach. 41. 42. Defendants allege Plaintiff has failed to mitigate its damages. Defendants allege the words SPORT COURT are not distinctive and do not

identify Plaintiff as the source of goods or services. 43. 44. faith. WHEREFORE, Defendants pray for judgment A. B. Dismissing the Complaint; Awarding Defendants their costs and attorneys' fees incurred herein Plaintiff's request for equitable relief is barred by unclean hands. Defendants allege Plaintiff's claims are frivolous and not brought in good

pursuant to A.R.S. § 12-341.01 and 15 U.S.C. § 1117; and C. proper. DATED this 5th day of February, 2007. FENNEMORE CRAIG, P.C. Awarding Defendants such other and further relief as the Court deems

By /s/Jamie A. Brown Ray K. Harris John D. Everroad Jamie A. Brown Attorneys for Plaintiffs Rhino Sports, Inc. and John E. Shaffer

P H X / R H A R R I S / 1 8 7 7 5 3 1 . 1 / 1 6987.002

Case 2:06-cv-03066-JAT

Document 8 - 6 Filed 02/05/2007

Page 6 of 7

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26
FENNEMORE CRAIG, P.C.
P HOENIX

CERTIFICATE OF SERVICE I hereby certify that on February 5 , 2007, I electronically transmitted the attached document to the Clerk Office using the CM/ECF System for filing and transmittal of a Notice of Electronic Filing to the following CM/EMF registrants: Douglas F. Behm Jennings, Strouss & Salmon, P.L.C. The Collier Center, 11th Floor 201 East Washington Street Phoenix, AZ 85004-2385 [e-mail], [e-mail] I hereby certify that on February 5 , 2007, a true and correct copy of the attached document was sent via U.S. Mail, postage paid thereon, to the following parties, at the addresses listed: Mark M Bettilyon Samuel C Straight Ray Quinney & Nebeker P.C. PO Box 45385 Salt Lake City, UT 84145-0385 Peter M de Jonge Gordon K Hill Thorpe North & Western LLP 8180 S 700 East, Suite 350 Sandy, UT 84070 /s/Michele A. Maul

P H X / R H A R R I S / 1 8 7 7 5 3 1 . 1 / 1 6987.002

Case 2:06-cv-03066-JAT

Document 8 - 7 Filed 02/05/2007

Page 7 of 7