Joltid Limited v. Skype Technologies S.A. et al

Filing 49

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Joltid Limited v. Skype Technologies S.A. et al Doc. 49 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 KELLY M. KLAUS (SBN. 161091) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: kelly.klaus@mto.com JEROME C. ROTH (SBN 159483) AMY C. TOVAR (SBN 230370) MUNGER, TOLLES & OLSON LLP 560 Mission Street, Twenty-Seventh Floor San Francisco, CA 9410 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: jerome.roth@mto.com, amy.tovar@mto.com Attorneys for Defendant Shihreen, Inc. UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION S. CLAUDIA KOCH, doing business as Zazou, Plaintiff, vs. EXOTIC SILKS, INC., et al, Defendants. CASE NO. CV-05-02966-SBA ANSWER OF DEFENDANT SHIHREEN, INC. TO COMPLAINT FOR COPYR IGHT INFRINGEMENT 1130992.1 CASE NO. CV-05-02966-SBA ANSWER OF DEFENDANT SHIHREEN, INC. TO COMPLAINT FOR COPYRIGHT INFRINGEMENT 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 27 28 Defendant Shihreen, Inc. ("Defendant") answers the Complaint filed by S. Claudia Koch doing business as Zazou as follows: JURISDICTION AND VENUE 1. Admitted. INTRADISTRICT ASSIGNMENT 2. Admitted that this action is excepted as an intellectual property case pursuant to Local Rule 3-2(c). However, "[a]ctions arising in the excepted categories shall be assigned on a district-wide basis." Local Rule 3-2(c). PARTIES 3. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 4. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 5. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 6. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 7. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 8. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 9. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 10. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 11. 12. Admitted. Defendant lacks knowledge or information sufficient to form a belief as to the CASE NO. CV-05-02966-SBA ANSWER OF DEFENDANT SHIHREEN, INC. TO COMPLAINT FOR COPYRIGHT INFRINGEMENT truth of the allegations in this paragraph and, on that basis, denies those allegations. 1130992.1 -2- 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 1130992.1 13. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 14. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 15. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 16. Defendant admits that this Court has jurisdiction over the Complaint and personal jurisdiction over Defendant. Except as specifically admitted, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in this paragraph and, on that basis, denies those allegations. ZAZOU 17. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 18. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 19. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 20. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 21. The allegations in this paragraph state legal conclusions to which no response is required. To the extent that a response is required, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 22. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 23. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. CASE NO. CV-05-02966-SBA ANSWER OF DEFENDANT SHIHREEN, INC. TO COMPLAINT FOR COPYRIGHT INFRINGEMENT -3- 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 24. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 25. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegation that "Fabric designers, like Zazou, routinely undertake great efforts to protect their designs, including copyright infringement litigation," and, on that basis, denies that allegation. Defendant denies the remaining allegations in this paragraph. 26. The allegations in this paragraph state legal conclusions to which no response is required. To the extent that a response is required, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. ALLEGATIONS OF "DEFENDANTS' INFRINGING ACTS" 27. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 28. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 29. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 30. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 31. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 32. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 33. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 34. Defendant admits that it purchased fabric with the design in dispute from Exotic Silks and resold it. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the remaining allegations in this paragraph and, on that basis, denies those allegations. 1130992.1 -4- CASE NO. CV-05-02966-SBA ANSWER OF DEFENDANT SHIHREEN, INC. TO COMPLAINT FOR COPYRIGHT INFRINGEMENT 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 35. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 36. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 37. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 38. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 39. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 40. The allegations contained in this paragraph on their face relate exclusively to inadmissible and irrelevant settlement discussions and therefore do not require a response. To the extent that a response is required, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 41. The allegations contained in this paragraph on their face relate exclusively to inadmissible and irrelevant settlement discussions and therefore do not require a response. To the extent that a response is required, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 42. The allegations contained in this paragraph on their face relate exclusively to inadmissible and irrelevant settlement discussions and therefore do not require a response. To the extent that a response is required, Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 43. The allegations contained in this paragraph on their face either relate to inadmissible and irrelevant settlement discussions or purport to state legal conclusions. In either case, no response is required. To the extent that a response is required, Defendant lacks 1130992.1 -5- CASE NO. CV-05-02966-SBA ANSWER OF DEFENDANT SHIHREEN, INC. TO COMPLAINT FOR COPYRIGHT INFRINGEMENT 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 knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 44. 45. 46. 47. Denied. Denied. Denied. Denied. CLAIM FOR RELIEF (Copyright Infringement) [17 U.S.C. 501] 48. forth herein. 49. Defendant lacks knowledge or information sufficient to form a belief as to the Defendant incorporates its responses to paragraphs 1-47 by reference as if fully set truth of the allegations in this paragraph and, on that basis, denies those allegations. 50. Defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations in this paragraph and, on that basis, denies those allegations. 51. 52. 53. 54. 55. Denied. Denied. Denied. Denied. Denied. Affirmative Defenses First Affirmative Defense The Complaint and the Claim fail to state a claim upon which relief can be granted. Second Affirmative Defense Plaintiff lacks standing to bring the Claim. Third Affirmative Defense The Claim is barred because the subject matter of the alleged works is not original and/or otherwise lacks the requirements for protection under the Copyright Act. 1130992.1 -6- CASE NO. CV-05-02966-SBA ANSWER OF DEFENDANT SHIHREEN, INC. TO COMPLAINT FOR COPYRIGHT INFRINGEMENT 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 1130992.1 Fourth Affirmative Defense The Claim is barred by the fraud on the copyr ight office. Fifth Affirmative Defense The Claim is barred because any "copying" by Defendant was de minimis. Sixth Affirmative Defense The Claim is barred to the extent Plaintiff seeks to claim copyright protection over a work or any aspect thereof that is in the public domain. Seventh Affirmative Defense The Fair Use Doctrine (17 U.S.C. 107 and the common law) and related doctrines bar the Claim. Eighth Affirmative Defense The Claim is barred because Plaintiff does not own or control the rights giving rise to the Claim purportedly raised in the Complaint. Ninth Affirmative Defense Plaintiff has failed to mitigate its damages, if any. Tenth Affirmative Defense Plaintiff's prayer for actual and statutory damages is barred because such alleged damage s did not arise from any acts, representations or omissions on the part of Defendant. Eleventh Affirmative Defense Plaintiff's prayer for statutory damages based on alleged willful infringement is barred because any infringement arising from the acts comp lained of in the Complaint or Claim was innocent and not intentional. WHEREFORE, Defendant prays for relief as follows: 1. That Plaintiff take nothing as a result of the Complaint and that Plaintiff's Claim be dismissed with prejudice; and 2. 3. An award of attorneys' fees, expenses and costs of suit incurred herein; and Such other and further relief as this Court may deem just and proper. CASE NO. CV-05-02966-SBA ANSWER OF DEFENDANT SHIHREEN, INC. TO COMPLAINT FOR COPYRIGHT INFRINGEMENT -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 27 28 1130992.1 DEMAND FOR JURY TRIAL Pursuant to Federal Rule of Civil Procedure 38(b), Defendant hereby demands a jury trial on all issues so triable. MUNGER, TOLLES & OLSON, LLP DATED: October 11, 2005 /s/ Amy C. Tovar AMY C. TOVAR Attorney for Defendant Shihreen, Inc. KELLY M. KLAUS (SBN. 161091) MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, Thirty-Fifth Floor Los Ange les, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 Email: kelly.klaus@mto.com JEROME C. ROTH (SBN 159483) AMY C. TOVAR (SBN 230370) MUNGER, TOLLES & OLSON LLP 560 Mission Street, Twenty-Seventh Floor San Francisco, CA 9410 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Email: jerome.roth@mto.com, amy.tovar@mto.com Attorneys for Defendant Shihreen, Inc. -8- CASE NO. CV-05-02966-SBA ANSWER OF DEFENDANT SHIHREEN, INC. TO COMPLAINT FOR COPYRIGHT INFRINGEMENT

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