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

Filing 18

Defendants' ANSWER to Complaint with Jury Demand by XYZ CORPORATIONS, OOGLES N GOOGLES, KEVIN MENDELL, DANYA MENDELL.(Redding, Bryan)

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

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Case 1:05-cv-00354-DFH-TAB

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UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF INDIANA INDIANAPOLIS DIVISION STELOR PRODUCTIONS, INC., a Delaware corporation, ) ) ) Plaintiff, ) ) v. ) ) OOGLES N GOOGLES, an Indiana ) corporation; KEVIN MENDELL, an ) individual; DANYA MENDELL, an ) individual; and X, Y, Z CORPORATIONS, ) ) Defendants. )

Case Number: 1:05-CV-0354-DFH-TAB

ANSWER TO COMPLAINT, AFFIRMATIVE DEFENSES AND JURY DEMAND Come now the Defendants, Oogles N Googles, Kevin Mendell, Danya Mendell, and X, Y, and Z Corporations (collectively referred to as "Oogles N Googles"), by counsel, and responds to Plaintiff's Complaint for (1) Federal Trademark Infringement; (2) Unfair Competition; and (3) Dilution as follows: 1. Defendants, Oogles N Googles, are without sufficient information to either admit or deny

the allegations found in Plaintiff's Complaint in Paragraph 1. 2. Paragraph 2. 3. Defendants, Oogles N Googles, admit that Kevin Mendell is an individual residing in Defendants, Oogles N Googles, admit the allegations found in Plaintiff's Complaint in

Indianapolis but denies generally that he is an owner of Oogles, rather he is a shareholder of Oogles, as alleged in Plaintiff's Complaint in Paragraph 3. 4. Defendants, Oogles N Googles, admit that Danya Mendell is an individual residing in

Indianapolis but denies generally that he is an owner of Oogles, rather she is a shareholder of Oogles and is married to Kevin Mendell, as alleged in Plaintiff's Complaint in Paragraph 4.

Dockets.Justia.com

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5.

Defendants, Oogles N Googles, deny the overbroad and general allegations found in

Plaintiff's Complaint in Paragraph 5. 6. Defendants, Oogles N Googles, admit that it has franchisees but denies all other

allegations found in Plaintiff's Complaint in Paragraph 6. 7. Paragraph 7. 8. Defendants, Oogles N Googles, admit subject matter jurisdiction and diversity but denies Defendants, Oogles N Googles, admit the allegations found in Plaintiff's Complaint in

that the amount in controversy exceeds $75,000.00 as found in Plaintiff's Complaint in Paragraph 8. 9. Paragraph 9. 10. Defendants, Oogles N Googles, are without sufficient information to either admit or deny Defendants, Oogles N Googles, admits the allegations found in Plaintiff's Complaint in

the allegations found in Plaintiff's Complaint in Paragraph 10. 11. Defendants, Oogles N Googles, are without sufficient information to either admit or deny

the allegations found in Plaintiff's Complaint in Paragraph 11. 12. Defendants, Oogles N Googles, are without sufficient information to either admit or deny

the allegations found in Plaintiff's Complaint in Paragraph 12. 13. Defendants, Oogles N Googles, are without sufficient information to either admit or deny

the allegations found in Plaintiff's Complaint in Paragraph 13. 14. Defendants, Oogles N Googles, are without sufficient information to either admit or deny

the allegations found in Plaintiff's Complaint in Paragraph 14. 15. Defendants, Oogles N Googles, are without sufficient information to either admit or deny

the allegations found in Plaintiff's Complaint in Paragraph 15. 2

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16. Paragraph 16. 17.

Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in

Defendants, Oogles N Googles, admit that it provides party services but denies that those

services are directed exclusively to young children as found in Plaintiff's Complaint in Paragraph 17. 18. Paragraph 18. 19. Paragraph 19. 20. Defendants, Oogles N Googles, admits the existence and ownership of the website Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in

"ooglesngoogles.com" but denies the remaining allegations found in Plaintiff's Complaint in Paragraph 20. 21. Paragraph 21. 22. Defendants, Oogles N Googles, admits to having franchisees, but denies the remaining Defendants, Oogles N Googles, admit the allegations found in Plaintiff's Complaint in

allegations found in Plaintiff's Complaint in Paragraph 22. 23. Defendants, Oogles N Googles, admits to having franchisees, but denies the remaining

allegations found in Plaintiff's Complaint in Paragraph 23. 24. Paragraph 24. 25. Defendants, Oogles N Googles, denies the claims of joint and several liability found in Defendants, Oogles N Googles, denies the allegations found in Plaintiff's Complaint in

Plaintiff's Complaint in Paragraph 25. 26. Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in 3

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Paragraph 26. 27. Paragraph 27. 28. Defendants, Oogles N Googles, are without sufficient information to either admit or deny Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in

the allegations found in Plaintiff's Complaint in Paragraph 28. 29. Paragraph 29. 30. Paragraph 30. 31. Paragraph 31. 32. Defendants, Oogles N Googles, are without sufficient information to either admit or deny Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in

the allegations found in Plaintiff's Complaint in Paragraph 32. 33. Paragraph 33. 34. Paragraph 34. 35. Paragraph 35. 36. Paragraph 36. 37. Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in 4 Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in

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Paragraph 37. 38. Paragraph 38. 39. Paragraph 39. 40. Paragraph 40. 41. Defendants, Oogles N Googles, are without sufficient information to either admit or deny Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in

the allegations found in Plaintiff's Complaint in Paragraph 41. 42. Paragraph 42. 43. Paragraph 43. 44. Paragraph 44. 45. Paragraph 45. 46. Paragraph 46. 47. Paragraph 47. 48. Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in 5 Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in

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Paragraph 48. 49. Paragraph 49. 50. Paragraph 50. 51. Paragraph 51. 52. Paragraph 52. 53. Paragraph 53. 54. Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in Defendants, Oogles N Googles, deny the allegations found in Plaintiff's Complaint in

Paragraphs 54 through, and including, Paragraph 64 (titled Prayer for Judgment). WHEREFORE, Defendants, Oogles N Googles, Kevin Mendell, Danya Mendell, and X, Y, and Z Corporations, pray that Plaintiff take nothing by way of their Complaint and for all relief just and proper in the premises. AFFIRMATIVE DEFENSES 55. 56. 57. 58. 59. Plaintiff's Complaint fails to state claims upon which relief can be granted; Plaintiff's claims are barred because there is no likelihood of confusion; Plaintiff's claims are barred because there is no false designation or description; Plaintiff's claims are barred by non-use regarding alleged goods and services; Plaintiff's claims are barred because Defendants have done nothing to mislead, deceive or 6

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confusing consumers or to generate likelihood of confusion; 60. 61. 62. 63. 64. Plaintiff's claims are barred by the doctrine of unclean hands; Plaintiff's claims are barred by fair use; Plaintiffs' claims are barred by laches and estoppel; Plaintiff's claims are barred by the fact that Plaintiff's mark is not famous; Plaintiff's claims are barred by the fact that even if famous, Defendant's use of the mark

preceeded such infamy; 65. 66. 67. Plaintiff's claims are barred because no dilution has occurred; Plaintiff's claims are barred because they have suffered no damages; Defendants reserve the right to add additional affirmative defenses relevant to this

litigation or that may arise through the course of this litigation. JURY DEMAND Defendants pray that all matters triable before a jury be heard as such. COHEN GARELICK & GLAZIER

By:

s/ Bryan S. Redding Bryan S. Redding, #18127-49 Attorneys for Defendants

Bryan S. Redding COHEN GARELICK & GLAZIER 8888 Keystone Crossing, Suite 800 Indianapolis, Indiana 46240 [phone]

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CERTIFICATE OF SERVICE I hereby certify that a copy of the foregoing Answer was served upon John David Hoover, Hoover Hull Baker & Heath, LLP, 111 Monument Circle, Suite 4400, Post Office Box 44989, Indianapolis, Indiana 44989 and Kevin C. Kaplan, Burlington, Weil, Schwiep, Kaplan & Blonsky, P.A. 2699 S. Bayshore Drive -PH, Miami, Florida 33133 by depositing a copy of same in the United States Mail, postage prepaid, this 4 day of May, 2005. s/ Bryan S. Redding Bryan S. Redding Bryan S. Redding COHEN GARELICK & GLAZIER 8888 Keystone Crossing, Suite 800 Indianapolis, Indiana 46240 [phone]

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