STELOR PRODUCTIONS, INC. v. OOGLES N GOOGLES et al

Filing 133

Maryclaire Balko's ANSWER to 94 Amended Complaint, filed by MARY CLAIRE BALKO.(Vaughan, Stephen)

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION STELOR PRODUCTIONS, LLC ) ) Plaintiff ) ) ) v. ) ) ) OOGLES N GOOGLES FRANCHISING LLC ) et. al. Defendants. ) ) ) Case Number: 1:05-CV-0354-DFH-TAB Jury Demanded MARYCLAIRE BALKO'S ANSWER TO PLAINTIFF'S SECOND AMENDED COMPLAINT Maryclaire Balko, by counsel, for her Answer to Plaintiff's Second Amended Complaint states as follows: FIRST DEFENSE 1. Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 1. 2. Paragraph 2 makes no allegations against Maryclaire Balko. To the extent an answer is required to this paragraph, Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 2. 3. Paragraph 3 makes no allegations against Maryclaire Balko. To the extent an answer is required to this paragraph, Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 3. 4. Paragraph 4 makes no allegations against Maryclaire Balko. To the extent an answer is required to this paragraph, Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 4. 5. 6. Maryclaire Balko denies paragraph 5. Paragraph 6 makes no allegations against Maryclaire Balko. To the extent an answer is required to this paragraph, Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 6. 7. Paragraph 7 makes no allegations against Maryclaire Balko. To the extent an answer is required to this paragraph, Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 7. 8. 9. Maryclaire Balko denies paragraph 8. Maryclaire Balko admits that Plaintiff makes claims for trademark infringement, unfair competition, and dilution, but denies liability for such claims of paragraph 9. 10. Maryclaire Balko admits this Court has subject matter jurisdiction but denies any remaining allegations in paragraph 10. 11. Maryclaire Balko admits venue is proper in this district, but denies any remaining allegations of paragraph 11. 12. Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 12. 13. 14. Maryclaire Balko denies the allegations of paragraph 13. Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 14. 15. 16. Maryclaire Balko denies the allegations of paragraph 15. Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 16. 17. Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 17. 18. 19. Maryclaire Balko denies the allegations of paragraph 18. Paragraph 19 makes no allegations against Maryclaire Balko To the extent an answer is required to this paragraph, Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 19. 20. 21. 22. 23. Maryclaire Balko denies paragraph 20. Maryclaire Balko denies paragraph 21. Maryclaire Balko denies the allegations of paragraph 22. Paragraph 23 makes no allegations against Maryclaire Balko To the extent an answer is required to this paragraph, Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 23. 24. Paragraph 24 makes no allegations against Maryclaire Balko To the extent an answer is required to this paragraph, Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 24. 25. Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 25. 26. 27. 28. 29. 30. Maryclaire Balko denies of paragraph 26. Maryclaire Balko denies paragraph 27. Maryclaire Balko denies paragraph 28. Maryclaire Balko denies paragraph 29. Maryclaire Balko is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 30. 31. 32. Maryclaire Balko denies paragraph 31. Maryclaire Balko denies paragraph 32. 33 - 42. Maryclaire Balko denies paragraphs 33 through 42. 43 48. Maryclaire Balko denies paragraphs 43 through 48. 49 53. Maryclaire Balko denies paragraphs 49 through 53. 54 56. Maryclaire Balko denies paragraphs 54 through 56. 57 68. Paragraphs 57 through 68 comprise a prayer for judgment by the Plaintiff. To the extent that Maryclaire Balko is required to admit or deny such a prayer for judgment, she denies paragraphs 57 through 68. SECOND DEFENSE Plaintiff's Second Amended Complaint fails to state claim upon which relief can be granted. THIRD DEFENSE The Oogles n Googles name and trademark do not infringe Plaintiff's alleged trademarks because there is no likelihood of confusion between the Oogles n Googles name and Plaintiff's alleged trademarks or between Oogles n Googles services and any goods or services allegedly offered for sale by Plaintiff. FOURTH DEFENSE Maryclaire Balko has made no representations whatsoever regarding Plaintiff's alleged goods and services, nor has she falsely represented any facts pertaining the origin, sponsorship, approval, quality, characteristics, or geographic origin of Oogles n Googles services. FIFTH DEFENSE Plaintiff's claims are barred because Plaintiff and prior alleged owners or licensees of the alleged trademarks have not used such marks in commerce as trademarks to identify the source or origin of its alleged goods or services. SIXTH DEFENSE Plaintiff's claims are barred because Maryclaire Balko has done nothing to mislead, deceive or confuse consumers or to generate likelihood of confusion as to the source or origin of Oogles n Googles' services, or the source or origin of Plaintiff's alleged goods and services. SEVENTH DEFENSE Subject to discovery, Plaintiff's claims are barred by doctrine of unclean hands. EIGHTH DEFENSE Subject to discovery, Plaintiff's claims are barred by fair use. NINTH DEFENSE . Subject to discovery, Plaintiff's claims are barred by laches and/or statutes of limitations. TENTH DEFENSE Plaintiff's alleged trademarks are not famous except to the extent the Google, Inc., has made the word "Google" famous; Plaintiff has no right to make claims based upon the fame of Google, Inc.'s trademarks. ELEVENTH DEFENSE Oogles n Googles use of its name and trademark in commerce preceded any alleged fame of Plaintiff's alleged trademarks. TWELFTH DEFENSE Plaintiff's alleged trademarks are not distinctive or famous and in any case no dilution has occurred to Plaintiff's alleged trademarks irrespective of their lack of distinctiveness or fame. THIRTEENTH DEFENSE Plaintiff's claims are barred because Plaintiff has incurred no damages. FOURTEENTH DEFENSE Subject to discovery, Plaintiff's claims are barred because of waiver, acquiescence and/or estoppel. FIFTEENTH DEFENSE Plaintiff and/or other alleged predecessor owners of the alleged trademarks have abandoned the alleged trademarks. SIXTEENTH DEFENSE Subject to discovery, Plaintiff has failed to mitigate its damages. SEVENTEENTH DEFENSE Plaintiff and/or the prior alleged owner(s) of the alleged trademarks committed fraud on the U.S. Patent and Trademark Office. EIGHTEENTH DEFENSE Plaintiff does not have a federal registration for the word "googles" as a trademark, nor does Plaintiff have any common law or other trademark rights to the word "googles". NINETEENTH DEFENSE Maryclaire Balko had no knowledge or notice of Plaintiff, Plaintiff's alleged goods and services, or Plaintiff's alleged trademarks prior to being notified of Plaintiff's lawsuit. Wherefore, Maryclaire Balko prays for judgment in her favor, costs of this action including attorney fees, and all other just and proper relief. JURY DEMAND Maryclaire Balko demands trial by jury. Respectfully submitted by: /s/ Stephen L. Vaughan Stephen L. Vaughan, #2294-49 INDIANO VAUGHAN LLP One N. Pennsylvania Street, Suite 850 Indianapolis, IN 46204 Telephone: (317) 822-0033 Fax: (317) 822-0055 E-mail: Steve@IPLawIndiana.com CERTIFICATE OF SERVICE I hereby certify that on May 5, 2008, a copy of the foregoing Maryclaire Balko's Answer to Plaintiff's Second Amended Complaint was filed electronically on all counsel of record. Notice of this filing will be sent to all counsel of record by operation of the Court's electronic filing system. Parties may access this filing through the Court's system. /s/ Stephen L. Vaughan Stephen L. Vaughan, #2294-49 INDIANO VAUGHAN LLP One N. Pennsylvania Street, Suite 1300 Indianapolis, IN 46204 E-mail: Steve@IPLawIndiana.com

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