bebe stores, inc. et al v. forever 21 Inc et al

Filing 6

ANSWER to Complaint byforever 21 Inc, forever 21 Retail Inc, forever 21 Logistics LLC, forever XXI Inc. (Attachments: # 1 Proof of Service)(Warner, Paul) (Filed on 2/22/2007)

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bebe stores, inc. et al v. forever 21 Inc et al Doc. 6 Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 1 of 11 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 27 28 PRINTED ON RECYCLED PAPER JEFFER, MANGELS, BUTLER & MARMARO LLP PAUL L. WARNER (Bar No. 54757) Two Embarcadero Center, Fifth Floor San Francisco, California 94111-3824 Telephone: (415) 398-8080 Facsimile: (415) 398-5584 Attorneys for Defendants Forever 21, Inc., Forever 21 Retail, Inc., Forever 21 Logistics, LLC, and Forever XXI, Inc. UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION bebe stores, inc., a California corporation; and bebe studio, inc., a California corporation, Plaint iffs, v. Forever 21, Inc., a Delaware corporation; Forever 21 Retail, Inc., a California corporation; Forever 21 Logistics, LLC, a Delaware limited liability company; and Forever XXI, Inc., a California corporation, Defendants. CASE NO. C 07 0035 MJJ ANSWER OF DEFENDANTS FOREVER 21, INC., FOREVER 21 RETAIL, INC., FOREVER 21 LOGISTICS, LLC, AND FOREVER XXI, INC. TO COMPLAINT FOR COPYRIGHT INFRINGEMENT Date: none Time: none Dept: 11 Judge: Hon. Martin J. Jenkins No trial date Defendants Forever 21, Inc., Forever 21 Retail, Inc., Forever 21 Logistics, LLC and Forever XXI, Inc. (collectively "Forever 21") for themselves alone, hereby answer the Complaint for Copyright Infringement, Unfair Competition and Tortious Interference with Prospective Economic Advantage filed by plaintiffs bebe stores, inc. and bebe studio, inc. on or about January 4, 2007 as follows: PARTIES 1. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 1 and therefore denies those allegations on that basis. 554568v2 29 ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ Dockets.Justia.com Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 2 of 11 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 27 28 PRINTED ON RECYCLED PAPER 2. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 2 and therefore denies those allegations on that basis. 3. In answer to Paragraph 3 of the Complaint, Forever 21 denies that Forever 21, Inc. operates or does business in California through retail stores but admits that Forever 21, Inc. does business in California through its website. 4. Forever 21 denies that Forever 21, Retail, Inc. does business through a website but otherwise admits the allegations of Paragraph 4. 5. 6. Admitted. In answer to Paragraph 6 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 7. Admitted. JURISDICTION AND VENUE 8. In answer to Paragraph 8 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 9. In answer to Paragraph 9 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 10. In answer to Paragraph 10 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. INTERDISTRICT ASSIGNMENT 11. In answer to Paragraph 11 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. FACTUAL BACKGROUND 12. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 12 and therefore denies those allegations on that basis. 13. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 13 and therefore denies those allegations on 554568v2 29 -2- ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 3 of 11 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 27 28 PRINTED ON RECYCLED PAPER that basis. 14. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 14 and therefore denies those allegations on that basis. 15. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 15 and therefore denies those allegations on that basis. 16. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 16 and therefore denies those allegations on that basis. 17. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 17 and therefore denies those allegations on that basis. 18. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 18 and therefore denies those allegations on that basis. 19. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 19 and therefore denies those allegations on that basis. 20. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 20 and therefore denies those allegations on that basis. 21. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 21 and therefore denies those allegations on that basis. 22. Forever 21 admits that Fashion 21, Inc. was formed before Forever 21, Inc. but otherwise denies each and every allegation of said Paragraph. 23. 554568v2 Forever 21 admits that it attempts to sell its products to everyone, including -3ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ 29 Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 4 of 11 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 27 28 PRINTED ON RECYCLED PAPER young women but otherwise denies each and every allegation of said Paragraph. 24. Forever 21 is without knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 24 and therefore denies those allegations on that basis. 25. In answer to Paragraph 25 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 26. In answer to Paragraph 26 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 26a. In answer to Paragraph 26a of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 26b. In answer to Paragraph 26b of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 26c. In answer to Paragraph 26c of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 26d. In answer to Paragraph 26d of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 26e. In answer to Paragraph 26e of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 26f. In answer to Paragraph 26f of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 26g. In answer to Paragraph 26g of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 26h. In answer to Paragraph 26h of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 27. In answer to Paragraph 27 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 28. In answer to Paragraph 28 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 554568v2 29 -4- ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 5 of 11 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 27 28 PRINTED ON RECYCLED PAPER 29. In answer to Paragraph 29 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29a. In answer to Paragraph 29a of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29b. In answer to Paragraph 29b of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29c. In answer to Paragraph 29c of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29d. In answer to Paragraph 29d of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29e. In answer to Paragraph 29e of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29f. In answer to Paragraph 29f of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29g. In answer to Paragraph 29g of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29h. In answer to Paragraph 29h of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29i. In answer to Paragraph 29i of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29j. In answer to Paragraph 29j of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29k. In answer to Paragraph 29k of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29l. In answer to Paragraph 29l of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29m. In answer to Paragraph 29m of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 554568v2 29 -5- ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 6 of 11 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 27 28 PRINTED ON RECYCLED PAPER 29n. In answer to Paragraph 29n of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29o. In answer to Paragraph 29o of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29p. In answer to Paragraph 29p of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29q. In answer to Paragraph 29q of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29r. In answer to Paragraph 29r of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29s. In answer to Paragraph 29s of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 29t. In answer to Paragraph 29t of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 30. In answer to Paragraph 30 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. FIRST CLAIM FOR RELIEF (Copyright Infringement Against Forever 21) 31. 32. This Paragraph does not require a response. In answer to Paragraph 32 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 33. In answer to Paragraph 33 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 34. In answer to Paragraph 34 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 35. In answer to Paragraph 35 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 36. 554568v2 In answer to Paragraph 36 of the Complaint, Forever 21 denies each and -6ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ 29 Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 7 of 11 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 27 28 PRINTED ON RECYCLED PAPER every allegation of said Paragraph. 37. In answer to Paragraph 37 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. SECOND CLAIM FOR RELIEF (Unfair Competition) 38. 39. This Paragraph does not require a response. In answer to Paragraph 39 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 40. In answer to Paragraph 40 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 41. In answer to Paragraph 41 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 41a. In answer to Paragraph 41a of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 41b. In answer to Paragraph 41b of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 42. In answer to Paragraph 42 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 43. In answer to Paragraph 43 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 44. In answer to Paragraph 44 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 45. In answer to Paragraph 45 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 46. In answer to Paragraph 46 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. THIRD CLAIM FOR RELIEF 554568v2 29 -7- ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 8 of 11 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 27 28 PRINTED ON RECYCLED PAPER (Tortious Interference With Prospective Business Advantage) 47. 48. This Paragraph does not require a response. In answer to Paragraph 48 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 49. In answer to Paragraph 49 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 50. In answer to Paragraph 50 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 51. In answer to Paragraph 51 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 52. In answer to Paragraph 52 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 53. In answer to Paragraph 53 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 54. In answer to Paragraph 54 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 55. In answer to Paragraph 55 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 56. In answer to Paragraph 56 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 57. In answer to Paragraph 57 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. 58. In answer to Paragraph 58 of the Complaint, Forever 21 denies each and every allegation of said Paragraph. AFFIRMATIVE DEFENSES FIRST AFFIRMATIVE DEFENSE 59. may be granted. 554568v2 The Complaint, in whole or in part, fails to state a claim upon which relief 29 -8- ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 9 of 11 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 27 28 PRINTED ON RECYCLED PAPER SECOND AFFIRMATIVE DEFENSE 60. defense of waiver. bebe's claims, and each of them, are barred, in whole or in part, by the THIRD AFFIRMATIVE DEFENSE 61. defense of laches. FOURTH AFFIRMATIVE DEFENSE 62. defense of estoppel. FIFTH AFFIRMATIVE DEFENSE 63. bebe's claims, and each of them, are barred, in whole or in part, because the bebe's claims, and each of them, are barred, in whole or in part, by the bebe's claims, and each of them, are barred, in whole or in part, by the Court lacks subject matter jurisdiction, including because bebe's claims are not ripe, are moot, or because bebe has not complied with the registration requirements for the alleged copyrights that it claims were infringed. SIXTH AFFIRMATIVE DEFENSE 64. bebe expressly or impliedly consented to the conduct alleged in the Complaint, and Forever 21 therefore has no liability to bebe. SEVENTH AFFIRMATIVE DEFENSE 65. bebe's claims based upon alleged copyright infringement are barred, in whole or in part, because any use of bebe's alleged copyrights by Forever 21 constitutes fair use. EIGHTH AFFIRMATIVE DEFENSE 66. bebe's claims of alleged copyright infringement are barred because of bebe's fraud in its application for a U.S. copyright registration. NINTH AFFIRMATIVE DEFENSE 67. bebe's claims based upon alleged copyright infringement are barred, in whole or in part, because the alleged copyrighted works are derivative works based upon works in which Forever 21 owns the copyright. 554568v2 29 -9- ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 10 of 11 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 27 28 PRINTED ON RECYCLED PAPER TENTH AFFIRMATIVE DEFENSE 68. bebe's claims based upon alleged copyright infringement are barred, in whole or in part, because any used of bebe's alleged copyrights by Forever 21 was de minimis. ELEVENTH AFFIRMATIVE DEFENSE 69. Forever 21 denies that bebe has suffered any damages, but to the extent it has, bebe's claims for damages are barred, in whole or in part, because bebe failed to take reasonable steps to mitigate its damages. TWELFTH AFFIRMATIVE DEFENSE 70. bebe's claims, and each of them, against Forever 21 are barred, in whole or in part, by the doctrine of unclean hands. THIRTEENTH AFFIRMATIVE DEFENSE 71. bebe's claims under are barred by federal preemption. FOURTEENTH AFFIRMATIVE DEFENSE 72. Forever 21 denies that it infringed any alleged copyrights of bebe, but to the extent they did, Forever 21 acted with innocent intent, including that under 17 U.S.C. 504 (c)(2) any award of statutory damages should be reduced accordingly. FIFTEENTH AFFIRMATIVE DEFENSE 73. Forever 21 has insufficient knowledge or information upon which to form a belief as to whether it may have additional, as yet unstated, separate defenses available and hence reserves the right to amend this Answer to add, delete, or modify defenses based upon legal theories that may or will be divulged through discovery or the factual bases for bebe's claims or further legal analysis. 74. functionality. WHEREFORE, Forever 21 prays for judgment as follows: 1. prejudice; 2. 554568v2 bebe's copyright claims are barred in whole or in part by the doctrine of That the Complaint and each claim for relief therein be dismissed with That bebe take nothing by its Complaint; - 10 ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ 29 Case 3:07-cv-00035-MJJ Document 6 Filed 02/22/2007 Page 11 of 11 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 27 28 PRINTED ON RECYCLED PAPER 3. and 4. that Forever 21 be awarded its costs incurred herein, including attorney fees; That the Court order such other and further relief for Forever 21 as the Court may deem just and proper. DATED: February 22, 2007 JEFFER, MANGELS, BUTLER & MARMARO LLP PAUL L. WARNER By: /s/ Paul L. Warner PAUL L. WARNER Attorneys for Defendants Forever 21, Inc., Forever 21 Retail, Inc., Forever 21 Logistics, LLC, and Forever XXI, Inc. 29 554568v2 - 11 - ANSWER OF DEFENDANTS FOREVER 21, ETC. , ET AL., CASE NO. 07-0035 MJJ

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