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

Filing 146

Elizabeth and Winston Lin's ANSWER to 94 Amended Complaint, filed by ELIZABETH LIN, WINSTON LIN.(Vaughan, Stephen)

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

ELIZABETH AND WINSTON LIN'S ANSWER TO PLAINTIFF'S SECOND AMENDED COMPLAINT Elizabeth and Winston Lin, by counsel, for their Answer to Plaintiff's Second Amended Complaint states as follows: FIRST DEFENSE 1. Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to

the truth of, and therefore deny the allegations of paragraph 1. 2. Paragraph 2 makes no allegations against Elizabeth and Winston Lin. To the

extent an answer is required to this paragraph, Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to the truth of, and therefore deny the allegations of paragraph 2. 3. Paragraph 3 makes no allegations against Elizabeth and Winston Lin. To the

extent an answer is required to this paragraph, Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to the truth of, and therefore deny the allegations

of paragraph 3. 4. Paragraph 4 makes no allegations against Elizabeth and Winston Lin. To the

extent an answer is required to this paragraph, Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to the truth of, and therefore deny the allegations of paragraph 4. 5. 6. Elizabeth and Winston Lin deny paragraph 5. Paragraph 6 makes no allegations against Elizabeth and Winston Lin To the

extent an answer is required to this paragraph, Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to the truth of, and therefore deny the allegations of paragraph 6. 7. Paragraph 7 makes no allegations against Elizabeth and Winston Lin. To the

extent an answer is required to this paragraph, Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to the truth of, and therefore deny the allegations of paragraph 7. 8. 9. Elizabeth and Winston Lin deny paragraph 8. Elizabeth and Winston Lin admit that Plaintiff makes claims for trademark

infringement, unfair competition, and dilution, but deny liability for such claims of paragraph 9. 10. Elizabeth and Winston Lin admit this Court has subject matter jurisdiction but

deny any remaining allegations in paragraph 10. 11. Elizabeth and Winston Lin admit venue is proper in this district, but deny any

remaining allegations of paragraph 11. 12. Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to

the truth of, and therefore deny the allegations of paragraph 12. 13. 14. Elizabeth and Winston Lin deny the allegations of paragraph 13. Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to

the truth of, and therefore deny the allegations of paragraph 14. 15. 16. Elizabeth and Winston Lin deny the allegations of paragraph 15. Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to

the truth of, and therefore deny the allegations of paragraph 16. 17. Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to

the truth of, and therefore deny the allegations of paragraph 17. 18. 19. Elizabeth and Winston Lin deny the allegations of paragraph 18. Paragraph 19 makes no allegations against Elizabeth and Winston Lin. To the

extent an answer is required to this paragraph, Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to the truth of, and therefore deny the allegations of paragraph 19. 20. 21. 22. 23. Elizabeth and Winston Lin deny paragraph 20. Elizabeth and Winston Lin deny paragraph 21. Elizabeth and Winston Lin deny the allegations of paragraph 22. Paragraph 23 makes no allegations against Elizabeth and Winston Lin To the

extent an answer is required to this paragraph, Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to the truth of, and therefore deny the allegations of paragraph 23. 24. Paragraph 24 makes no allegations against Elizabeth and Winston Lin To the

extent an answer is required to this paragraph, Elizabeth and Winston Lin are without

sufficient knowledge to form a belief as to the truth of, and therefore deny the allegations of paragraph 24. 25. Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to

the truth of, and therefore deny the allegations of paragraph 25. 26. 27. 28. 29. 30. Elizabeth and Winston Lin deny the allegations of paragraph 26. Elizabeth and Winston Lin deny paragraph 27. Elizabeth and Winston Lin deny paragraph 28. Elizabeth and Winston Lin deny paragraph 29. Elizabeth and Winston Lin are without sufficient knowledge to form a belief as to

the truth of, and therefore deny the allegations of paragraph 30. 31. 32. Elizabeth and Winston Lin deny paragraph 31. Elizabeth and Winston Lin deny paragraph 32. Elizabeth and Winston Lin deny paragraphs 33 through 42. Elizabeth and Winston Lin deny paragraphs 43 through 48. Elizabeth and Winston Lin deny paragraphs 49 through 53. Elizabeth and Winston Lin deny paragraphs 54 through 56. Paragraphs 57 through 68 comprise a prayer for judgment by the Plaintiff. To

33 - 42. 43 ­ 48. 49 ­ 53. 54 ­ 56. 57 ­ 68.

the extent that Elizabeth and Winston Lin are required to admit or deny such a prayer for judgment, they deny 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 Elizabeth and Winston Lin have made no representations whatsoever regarding Plaintiff's alleged goods and services, nor have they falsely represented any facts pertaining the origin, sponsorship, approval, quality, characteristics, or geographic origin Oogles n Googles own 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 Elizabeth and Winston Lin have 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 Elizabeth and Winston Lin 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, Elizabeth and Winston Lin pray for judgment in their favor, costs of this action including attorney fees, and all other just and proper relief.

JURY DEMAND Elizabeth and Winston Lin demand 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: [phone] Fax: [phone] E-mail: [e-mail]

CERTIFICATE OF SERVICE I hereby certify that on May 5, 2008, a copy of the foregoing Elizabeth and Winston Lin'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: [e-mail]