TimesLines, Inc v. Facebook, Inc.

Filing 34

Timelines ANSWER to counterclaim asserted by Facebook, by TimesLines, Inc(Albritton, Douglas)

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION
TIMELINES, INC.,
Plaintiff-Counterdefendant,
v.
FACEBOOK, INC.,
Defendant-Counterplaintiff.

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Civil Action No. 11-cv-06867
Judge John W. Darrah

Jury Trial Demanded

TIMELINES, INC.’S ANSWER TO FACEBOOK, INC.’S COUNTERCLAIMS AGAINST
TIMELINES
Plaintiff and Counterclaim-Defendant Timelines, Inc. (“Timelines”), by and through its
counsel, hereby answers the Counterclaims of Defendant Facebook, Inc. (“Facebook”).
ANSWER TO COUNTERCLAIMS
PARTIES
1.
Facebook is a corporation organized and existing under the laws of the State of
Delaware, with a place of business in Palo Alto, California.
ANSWER:

Admitted.

2.
On information and belief, Counterdefendant is a corporation organized under the
laws of the State of Delaware, with its principal place of business in Chicago, Illinois.
ANSWER:

Admitted.
JURISDICTION AND VENUE

3.
These Counterclaims arise under, respectively, the Declaratory Judgment Act, 28
U.S.C. § 2201 et seq., and the Lanham Act, 15 U.S.C. § 1051 et seq.
ANSWER:

Timelines admits that Facebook asserts counterclaims under such acts and

does not dispute this court’s subject matter jurisdiction, personal jurisdiction over Timelines, or
that this court is a proper venue for the Counterclaims.

4.
This Court has jurisdiction over the subject matter of these Counterclaims under
15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338, and 2201.
ANSWER:

Timelines does not dispute this Court’s subject matter jurisdiction,

personal jurisdiction over Timelines, or that this Court is a proper venue for the Counterclaims.
5.
On information and belief, this Court has personal jurisdiction over
Counterdefendant because, among other reasons, Counterdefendant’s principal place of business
is in this judicial district. Further, by filing its Complaint and First Amended Complaint in this
judicial district, Counterdefendant has submitted to this Court’s personal jurisdiction over
Counterdefendant.
ANSWER:

Timelines does not dispute this Court’s subject matter jurisdiction,

personal jurisdiction over Timelines, or that this Court is a proper venue for the Counterclaims.
6.
On information and belief, venue is proper in this judicial district pursuant to 28
U.S.C. §1391 because, among other reasons, Counterdefendant’s principal place of business is in
this judicial district. Further, by filing its Complaint and First Amended Complaint,
Counterdefendant has consented that this Court is a proper venue for this litigation.
ANSWER:

Timelines does not dispute this Court’s subject matter jurisdiction,

personal jurisdiction over Timelines, or that this Court is a proper venue for the Counterclaims.
FACTUAL BACKGROUND
MEANING AND WIDESPREAD USE OF “TIMELINES”
7.
Despite an abundance of prior and senior users of the noun “timeline,”
Counterdefendant filed this lawsuit in an attempt to appropriate for its exclusive use that
common English word under the guise of trademark protection. The noun “timeline” refers to a
chronological organization of events or other information. As such, “timeline” readily conveys to
a consumer that any product or service associated with the term will take the form of, or enable
the consumer to create, a chronological listing of facts, communications, or other information.
ANSWER:

Denied.

8.
On information and belief, long before Counterdefendant’s existence and its
alleged first use of “timelines” in commerce on April 20, 2009, third parties have used the term
“timeline” to describe or identify goods and services that enable users to create and share
chronologies of events in their personal lives, in history, or any other subject matter of their
choosing.
ANSWER:

Denied.

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9.
A recent Google search of the term “timeline” returned over 196 million hits,
including thousands of image results depicting various types of timelines.
ANSWER:

Timelines lacks knowledge or information sufficient to form a belief as to

the truth of this allegation, and on that basis, denies the same.
10.
For example, on information and belief, since 2007, Underlying, Inc. has publicly
offered a “free digital timeline website” located at www.dipity.com, which allows users to select
a “Create a Timeline” tab to “create, share, embed and collaborate on interactive, visually
engaging timelines that integrate video, audio, images, text, links, social media, location, and
timestamps.” The Dipity website also offers a Facebook application that allows users to “easily
connect” and “import content to [their] free timeline,” providing the same overall functionality as
Facebook’s own timeline feature, which is the subject of this lawsuit.
ANSWER:

Timelines lacks knowledge or information sufficient to form a belief as to

the truth of this allegation, and on that basis, denies the same. Timelines further denies any
implication that the actions of a specific third-party not a party to this lawsuit affects Timelines
rights in the TIMELINES trademark.
11.
In addition, on information and belief, Famento, Inc. launched an “Xtimeline”
service in 2007 that allows users to create, share, and access timelines on any subject including
personal activities and historical events, among many other categories. The website at
www.xtimeline.com prominently displays the following:

Moreover, Famento uses “timeline” descriptively, as noted above and throughout its
website, to refer to services which are essentially identical to those offered by Counterdefendant.

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ANSWER:

Timelines lacks knowledge or information sufficient to form a belief as to

the truth of this allegation, and on that basis, denies the same. Timelines further denies any
implication that the actions of a specific third-party not a party to this lawsuit affects Timelines
rights in the TIMELINES trademark.
12.
Further, on information and belief, since early 2008, Timetoast has offered users
the ability on its website at www.timetoast.com to “create timelines” and “share them on the
web.” Users can browse timelines by selecting links from prominently titled categories, such as
“Popular timelines,” “Latest timelines,” or “Updated timelines.” Upon information and belief,
the site is used to create timelines of historical events, hobbies, and personal activities, among
other subject areas.
ANSWER:

Timelines lacks knowledge or information sufficient to form a belief as to

the truth of this allegation, and on that basis, denies the same. Timelines further denies any
implication that the actions of a specific third-party not a party to this lawsuit affects Timelines
rights in the TIMELINES trademark.
13.
On information and belief, since 2000, the website at www.ourtimelines.com has
also provided users with the ability to generate personal timelines. According to the site, users
can generate “as many timelines as [they] like,” and examples are provided under the heading
“Personalized timelines.” Users can also select the “Timeline” tab on the left side of the webpage
to create timelines of their own.
ANSWER:

Timelines lacks knowledge or information sufficient to form a belief as to

the truth of this allegation, and on that basis, denies the same. Timelines further denies any
implication that the actions of a specific third-party not a party to this lawsuit affects Timelines
rights in the TIMELINES trademark.
14.
On information and belief, Twitter also has made longstanding use of the
“timeline” term. Twitter users logging into the site can go directly to a “Timeline” tab, the first
tab on their home page, in order to review postings by other users chronologically. Timelines are
also found on Twitter when a user curates or reviews a list or runs a search.
ANSWER:

Timelines lacks knowledge or information sufficient to form a belief as to

the truth of this allegation, and on that basis, denies the same. Timelines further denies any
implication that the actions of a specific third-party not a party to this lawsuit affects Timelines
rights in the TIMELINES trademark.

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15.
On information and belief, millions of U.S. consumers have visited these websites
and used their timeline creating and collecting services. Twitter alone claims an active user base
of well over 100 million, and many of the sites discussed above generate web traffic in the
United States well in excess of Counterdefendant. On information and belief, all of these third
party uses of “timeline” or “timelines” predate Counterdefendant’s first use of “timelines”.
ANSWER:

Timelines lacks knowledge or information sufficient to form a belief as to

the truth of this allegation, and on that basis, denies the same. Timelines further denies any
implication that the actions of a specific third-party not a party to this lawsuit affects Timelines
rights in the TIMELINES trademark. Finally, this paragraph is further denied to the extent this
paragraph implies that third parties have used the TIMELINES mark to identify the same goods
and services offered by Timelines.
16.
The examples provided above are a mere sampling of the numerous third parties
using the terms “timeline” or “timelines” to describe or identify offerings that are substantially
similar, if not identical, to those provided by Counterdefendant, many of which predate
Counterdefendant’s claimed first use date of April 20, 2009.
ANSWER:

Denied. Timelines further denies any implication that the actions of a

specific third-party not a party to this lawsuit affects Timelines rights in the TIMELINES
trademark. Finally, this paragraph is further denied to the extent this paragraph implies that third
parties have used the TIMELINES mark to identify the same goods and services offered by
Timelines.
17.
Such prior third party uses demonstrate that the term “timeline” is merely
descriptive, or even generic, for services such as those provided by Counterdefendant.
ANSWER:

Denied. Timelines further denies any implication that the actions of a

specific third-party not a party to this lawsuit affects Timelines rights in the TIMELINES
trademark. Finally, this paragraph is further denied to the extent this paragraph implies that third
parties have used the TIMELINES mark to identify the same goods and services offered by
Timelines.
18.
Given the generic or at least merely descriptive nature of the term “timeline”
when used to identify chronologies of events and related information (or tools for their creation),
as well as the prior and widespread use of the term by third parties, Counterdefendant does not
own exclusive rights in the term “timelines” as used in connection with timeline creation and
collection services.

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ANSWER:

Denied. Timelines further denies any implication that the actions of a

specific third-party not a party to this lawsuit affects Timelines rights in the TIMELINES
trademark. Finally, this paragraph is further denied to the extent this paragraph implies that third
parties have used the TIMELINES mark to identify the same goods and services offered by
Timelines.
COUNTERDEFENDANT’S USE OF THE TERM “TIMELINES” TO DESCRIBE ITS
SERVICES
19.
On information and belief, Counterdefendant operates the website located at
www.timelines.com.
ANSWER:
20.
following:

Admitted.

Counterdefendant’s website has featured timelines organized by topic, such as the

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ANSWER:

Admitted as to the existence of the image. Denied as to Facebook’s use of

the word “timelines” in a generic sense in its allegation in this paragraph. TIMELINES is the
trademark that Timelines, Inc. uses to identify its goods and services.
21.
On information and belief, users of Counterdefendant’s website can open
accounts and begin recording events to any timeline that already exists or they can create a new
timeline.
ANSWER:

Admitted as to the ability of Timelines’ users’ ability to open accounts and

record events. Denied as to Facebook’s use of the word “timelines” in a generic sense in its
allegation in this Paragraph. TIMELINES is the trademark that Timelines, Inc. uses to identify
its goods and services.
22.
Counterdefendant has routinely emphasized the chronological aspects of its
timeline creation and collection services. For example, Counterdefendant has specifically
described its website as “a site where people and entities can discover and record events, and
then share and connect them with other events. It’s . . . a place . . . to discover what happened
where and when.”
ANSWER:

Admitted as to the use of the quotation in this paragraph by Timelines.

Denied otherwise, including as to Facebook’s use of the word “timelines” in a generic sense in
its allegation in this Paragraph. TIMELINES is the trademark that Timelines, Inc. uses to
identify its goods and services.
23.
On the FAQ page found on its website, Counterdefendant has stated that its
services allow users to “record the details of events, connect them in space and through time to
other related events, and contribute to a better collective understanding of what occurred at a
particular place and time.” In a recent version of the FAQ page, Counterdefendant further
explained that:
We launched Timelines with the belief that regular people, not just designated
“historians” – whoever these people are – should be able to record and piece
together history easily – local history, recent history, ancient history, world
history, business history... any history. What’s unique about out [sic] site is how it
is structured – Timelines.com enables people to understand how events relate to
each other in time, place and topic.
ANSWER:

Admitted as to the use of the quotation in this paragraph by Timelines.

Denied otherwise, including as to Facebook’s use of the word “timelines” in a generic sense in

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its allegation in this Paragraph. TIMELINES is the trademark that Timelines, Inc. uses to
identify its goods and services.
24.
Recent versions of Counterdefendant’s website have contained several generic or
descriptive uses of the term “timelines”, including but not limited to the following:
•
•
•

The link “Popular Timelines” led to Plaintiff’s most popular chronologies;
Descriptive references to specific timelines and categories of timelines
such as “American History Timelines”; and
Counterdefendant’s blog used “timelines” descriptively, as in “Our Civil
Rights Movement Timeline provides a great overview of the struggle and
progress of the movement.”

ANSWER:

Denied.

25.
Shortly after Counterdefendant filed its original Complaint and this Court denied
its motion for a temporary restraining order, Counterdefendant engaged in a significant overhaul
of its website in an attempt to mask its generic and descriptive uses of the term “timelines” to
describe its services – a transparent litigation tactic that constitutes an acknowledgement by
Counterdefendant that the term is generic or merely descriptive.
ANSWER:

Denied.

COUNTERDEFENDANT’S EFFORTS TO REGISTER TERM “TIMELINES” AS A
TRADEMARK
26.
Despite the generic or descriptive nature of the term “timelines” when used in
connection with Counterdefendant’s services, on information and belief, Counterdefendant
obtained three U.S. trademark registrations for marks incorporating the term – U.S. Registration
No. 3,684,074 for TIMELINES; U.S. Registration No. 3,764,134 for TIMELINES.COM; and
U.S. Registration No. 3,784,720 for TIMELINES (stylized) (collectively, the “TIMELINES
Registrations”).
ANSWER :

Admitted that Timelines has received three separate trademark

registrations from the United States Patent and Trademark Office that deemed the mark
TIMELINES as not generic or even descriptive for the goods and services listed in Timelines’
trademark applications. Denied as to the characterization of the TIMELINES marks as generic
or descriptive.
27.
The TIMELINES Registrations each identify the following services: “Providing a
web site that gives users the ability to create customized web pages featuring user-defined
information about historical, current and upcoming events; and application service provider,

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namely, managing web sites of others in the fields of historical, current and upcoming events” in
Class 42.
ANSWER:

Admitted.

28.
The TIMELINES Registrations have each been registered for less than five years
and thus may be cancelled if the Court finds that the term “timelines” is either generic or merely
descriptive of the services identified in the registrations.
ANSWER:

Timelines admits only that the registration was granted fewer than five

years ago and that marks may be cancelled if they are conclusively found to be generic by a court
of law. Denied as to the rest of the paragraph and the implications within.
29.
On information and belief, Counterdefendant filed an application on September
26, 2011, four days after it claims to have learned of Facebook’s new “timeline” user interface
feature, to register the TIMELINES mark in connection with a variety of Class 42 services,
including “computer services, namely, providing online services featuring genealogical
information, images, records and other data relating to historical, current and future life events”
(the “TIMELINES Application”).
ANSWER:

Admitted.

30.
On November 12, 2011, the PTO issued an office action refusing to register the
TIMELINES Application on the ground that the term “timelines” merely describes a feature,
characteristic and function of Counterdefendant’s services.
ANSWER:

Admitted that there was a preliminary PTO Office Action preliminarily

denying the newest TIMELINES Application. Denied as to the specific grounds on which the
PTO preliminarily denied the application.
31.
The PTO Examining Attorney based the refusal of the TIMELINES Application
in large part on evidence demonstrating that “the term ‘timeline’ refers to interactive, often webbased, visual chronologies” and that “[w]ords or terms that describe the function or purpose of a
product or service may be merely descriptive or generic.” The Examining Attorney supported the
refusal with evidence of additional third party uses of the term “timelines” to describe various
types and uses of chronologies, including:
•
•
•

An interactive timeline created using TikiToki timeline software offered at
www.tiki-toki.com;
Timelines created using the “Timeline Maker Professional” offered at
www.timelinemaker.com;
Software used to created timelines at www.timelinesoftware.com, which
states: “Generally, a timeline shows a sequence of events or projects over
a period of time”;
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•
•
•
•
•
•

ANSWER:

A timeline described as a “Web Widget for Visualizing Temporal Data”
offered at www.simile-widgets.org/timeline/;
“Easy Timeline Software” available as a free download at
www.smartdraw.com/specials/timelines.asp;
A web-based timeline software for “creating and sharing history and
project planning” at www.timeglider.com;
A timeline interactive teaching tool offered to students by the International
Reading Association (www.readwritethink.org/classroomresources/student¬interactives/timeline-300007);
An interactive timeline tool allowing users to “travel through time” of
Google’s company history (see
www.google.com/corporate/timeline/#start); and
Web-based tools made available by the Massachusetts Institute of
Technology to create “Timeline and Map Timedata” (see
www.demoscience.org/resources/ category/28).
Admitted that there was a preliminary PTO Office Action preliminarily

denying the newest TIMELINES Application and that the specific quotes in this Counterclaim
paragraph were in the Office Action. Denied as to the specific grounds or basis on which the
PTO preliminarily denied the application, Facebook’s categorization of the PTO Office Action,
Facebook’s statements or implications of any legal conclusions made in the PTO Office Action,
or that any individual quoted material above specifically contributed or was the basis of the PTO
Office Action or the preliminary denial of the newest—and only the newest—trademark
application.
32.
In the office action, the PTO Examining Attorney explained that descriptive
marks like “timelines” are not afforded protection in order “(1) to prevent the owner of a
descriptive mark from inhibiting competition in the marketplace and (2) to avoid the possibility
of costly infringement suits brought by the trademark or service mark owner.”
ANSWER:

Admitted that there was a preliminary PTO Office Action preliminarily

denying the newest TIMELINES Application and that the specific quotes in this Counterclaim
paragraph were in the Office Action. Denied that the PTO specifically found or held as a final
action that Timelines was a generic or descriptive mark. Also denied as to the specific grounds
or basis on which the PTO preliminarily denied the application, Facebook’s categorization of the
PTO Office Action, Facebook’s statements or implications of any legal conclusions made in the
PTO Office Action, or that any individual quoted material above specifically contributed or was
the basis of the PTO Office Action or the preliminary denial of the newest—and only the
newest—trademark application.
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LAUNCH OF THE “TIMELINE” FEATURE BY FACEBOOK
33.
Facebook is a preeminent provider of online networking services and is dedicated
to helping people connect and share information. Facebook’s website at www.facebook.com
allows its users to create individual “profiles,” where they can post personal information about
themselves in the form of pictures, text, links, video, audio and other digital media. User profiles
include a display of the user’s activity on Facebook in reverse chronological order.
ANSWER:

Timelines lacks knowledge or information sufficient to form a belief as to

the truth of this allegation, and on that basis, denies the same.
34.
Facebook recently announced and began rolling out an update to Facebook user
profiles, which enables users to record, display and share the most memorable events in their
lives along a graphed chronological timeline. Facebook fairly and accurately describes this user
interface as a “timeline.” An example of a Facebook timeline, and a video explanation, can be
found at http://www.facebook.com/about/timeline.
ANSWER:

Timelines lacks knowledge or information sufficient to form a belief as to

the truth of this allegation, and on that basis, denies the same. Timelines further denies that
Facebook fairly and accurately describes what it does as a “timeline,” especially in the generic
way implied in this paragraph.
35.
Facebook publicly announced and launched the timeline feature on September 22,
2011, at Facebook’s annual “f8” developer conference, and via live internet stream and blog
posts.
ANSWER:

Admitted as to the dates and place of the announcement. Denied as to the

implication that timeline is merely as a generic feature since Facebook used the mark
TIMELINES in a clear trademark-way in this announcement and since.
CAUSES OF ACTION
FIRST CAUSE OF ACTION
DECLARATION OF NON-INFRINGEMENT
36.
Facebook realleges and incorporates herein by reference its allegations in
Paragraphs 1-35 of its Counterclaims.
ANSWER:

Timelines hereby incorporates as though fully set forth herein its

responses to the allegations in Paragraphs 1-35.

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37.
An actual case or controversy exists between Facebook and Counterdefendant as
to whether Facebook’s use of the term “timeline” infringes Counterdefendant’s alleged rights in
the term “timelines” or otherwise constitutes any act of unfair competition under the Lanham
Act, Illinois statutory law, or common law.
ANSWER:

Admitted.

38.
The term “timelines” as used by Counterdefendant in connection with its timeline
creation and collection services is generic or at the very least merely descriptive (and lacking any
acquired secondary meaning); therefore, the term does not function as a trademark and
Counterdefendant does not own exclusive rights in the term.
ANSWER:

Denied.

39.
To the extent Counterdefendant is found to have any rights in the term
“timelines,” there is no likelihood of confusion between the parties’ respective uses of the term
because of, among other reasons: (a) the exceptionally weak nature of Counterdefendant’s
alleged mark; (b) differences in the parties’ respective services; and (c) the prominent use of the
famous FACEBOOK house mark to identify the source of Facebook’s services.
ANSWER:

Denied.

40.
Further, Facebook uses “timeline” to fairly and accurately describe a feature of its
new user interface and thus is neither infringing any of Counterdefendant’s alleged rights nor
committing any related act of unfair competition.
ANSWER:

Denied.

41.
A judicial declaration that Facebook neither has infringed Counterdefendant’s
alleged rights in “timelines” nor committed any related act of unfair competition under the
Lanham Act, Illinois statutory law, or common law is necessary and appropriate so that
Facebook may continue to fairly use the term “timeline” to describe a feature of its new user
interface.
ANSWER:

Denied.
SECOND CAUSE OF ACTION

CANCELLATION OF U.S. REGISTRATION NOS. 3,684,074, 3,764,134, AND 3,784,720
AND EXPRESS ABANDONMENT OF U.S. SERIAL NO. 85/432,026
42.
Facebook realleges and incorporates herein by reference its allegations in
Paragraphs 1-41 of its Counterclaims.

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ANSWER:

Timelines hereby incorporates as though fully set forth herein its

responses to the allegations in Paragraphs 1-41.
43.
Counterdefendant relies on its alleged ownership of its TIMELINES Registrations
(U.S. Registration Nos. 3,684,074, 3,764,134, and 3,784,720) and TIMELINES Application
(Serial No. 85/432,026) as evidence of the distinctiveness of the term “timelines.”
ANSWER:

Admitted in part. Among other things, Timelines also relies on its long-

standing use of the marks, the public’s identification of Timelines with the TIMELINES marks
and the goods and services associated with those marks, and the natural strength of those marks
as an identifier, and to the extent that this paragraph is intended to allege that Timelines does not
rely on these other matters, then such allegations are denied.
44.
Facebook will be harmed by the continued registration of the TIMELINES
Registrations, the registration of the TIMELINES Application, and any other attempts by
Counterdefendant to obtain registrations for “timelines.”
ANSWER:

Denied.

45.
The term “timelines” as used by Counterdefendant does not function as a
trademark because it is a generic term for, or at the very least merely descriptive of (i.e.,
descriptive without any acquired secondary meaning), the timeline creation and collection
services offered by Counterdefendant; therefore, Counterdefendant does not own exclusive rights
to the term.
ANSWER:

Denied.

46.
Pursuant to 15 U.S.C. § 1064, the Court should order the cancellation of the
TIMELINES Registrations. Further, the Court should order Counterdefendant to expressly
abandon its pending TIMELINES Application and enjoin Counterdefendant from seeking the
registration of any mark incorporating the term “timelines” as used in connection with
Counterdefendant’s timeline creation and collection services in the future.
ANSWER:

Denied.
PRAYER FOR RELIEF ON COUNTERCLAIMS

WHEREFORE, Facebook requests that judgment be entered in its favor and against
Counterdefendant as follows:
a.

A judgment in favor of Facebook on all Counterclaims;

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b.

A declaration that Facebook’s use of the term “timeline” does not infringe any

rights owned by Counterdefendant in the term and that Facebook has not committed any related
act of unfair competition under the Lanham Act, Illinois statutory law, or common law;
c.

That the Court order the cancellation of U.S. Registration Nos. 3,684,074,

3,764,134, and 3,784,720 and the express abandonment of Serial No. 85/432,026;
d.

That the Court enjoin Counterdefendant from attempting to register any mark

incorporating “timeline” or “timelines” in the future in connection with its timeline creation and
collection services;
e.

That the Court award Facebook its costs and expenses incurred in this action and

attorneys’ fees as permitted by law; and
f.

That the Court award Facebook such other and further relief that it deems

appropriate.
ANSWER:

These requests for relief do not require an answer. To the extent any

answer is required, Timelines denies that any such relief is appropriate.
AFFIRMATIVE DEFENSES
Timelines asserts the following separate and additional defenses to Facebook’s
Counterclaims, without assuming the burden of proof on such defenses that would otherwise fall
on Facebook. Timelines reserves the right to seek leave to amend these defenses based on its
ongoing investigation and discovery into the matters alleged in the Counterclaims. Timelines
does not knowingly or intentionally waive any applicable defense.
FIRST AFFIRMATIVE DEFENSE
(Unclean Hands)
1.

With full knowledge of Timelines’ registered trademarks—as admitted in

Facebook’s Answer to the First Amended Complaint—Facebook went forward with a massive
launch of a product using the term TIMELINE in a trademark-way. Facebook did not attempt to
contact Timelines in any way or avoid infringement of the TIMELINES marks. Facebook has
operated in bad faith and cannot bring its counterclaims due to its unclean hands.

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SECOND AFFIRMATIVE DEFENSE
(No Damage)
2.

Timelines is informed and believes, and therefore alleges without admitting that

the Counterclaims state a claim, that as Timeline’s Complaint was brought before Facebook even
officially launched their product, Facebook could have changed its mark away from
TIMELINES and as such, will sustain no loss, damage, harm, or detriment in any amount as a
result of the existence of the TIMELINES marks.
THIRD AFFIRMATIVE DEFENSE
(Failure to Mitigate Damage)
3.

Timelines is informed and believes, and therefore alleges without admitting that

the Counterclaims state a claim, that as Timeline’s Complaint was brought before Facebook even
officially launched their product, Facebook could have changed its mark away from
TIMELINES and as such, any loss, damage, harm, or detriment in any amount as a result of the
existence of the TIMELINES marks has been caused by Facebook’s actions alone.

PRAYER FOR RELIEF ON FACEBOOK’S COUNTERCLAIMS
WHEREFORE, Timelines prays for relief and judgment as follows:
a.

That the Court deny Facebook’s prayer for relief in its entirety and that the Court

dismiss the Counterclaims with prejudice and enter judgment in Timelines’ favor;
b.

That the Court award Timelines its costs and expenses incurred in this action and

attorneys’ fees as permitted by law; and
c.

That the Court award Timelines such other and further relief that it deems

appropriate.

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JURY DEMAND
A trial by jury is hereby demanded by Timelines on all issues related to both the First
Amended Complaint as well as Facebook’s Counterclaims that are triable to a jury.
Dated: December 27, 2011

By:

/s/ Douglas A. Albritton
One of its Attorneys

James T. Hultquist (#6204320)
Douglas Alan Albritton (#6228734)
REED SMITH LLP
10 South Wacker Drive, 40th Floor
Chicago, Illinois 60606-7507
[phone]
[phone] (facsimile)
[e-mail]
[e-mail]
Attorneys for Plaintiff and Counterclaim-Defendant
TIMELINES, INC.

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CERTIFICATE OF SERVICE
The undersigned, an attorney, hereby certifies that, on December 27, 2011, he caused a
true and correct copy of TIMELINES, INC.’S ANSWER TO FACEBOOK, INC.’S
COUNTERCLAIMS AGAINST TIMELINES to be served upon counsel for Facebook, Inc. by
electronically filing the same in the CM/ECF system, which automatically transmitted a Notice
of Electronic Filing to all ECF registrants.
Dated: December 27, 2011
By:

/s/ Douglas A. Albritton
An Attorney