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

Filing 208

ANSWER to 183 Amended Complaint, filed by KECHIA LAKE.(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 KECHIA LAKE'S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT Kechia Lake, by counsel, for her Answer to Plaintiff's Third Amended Complaint states as follows: FIRST DEFENSE 1. Kechia Lake 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 Kechia Lake. To the extent an answer is required to this paragraph, Kechia Lake 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 Kechia Lake. To the extent an answer is required to this paragraph, Kechia Lake denies said allegations. 4. Paragraph 4 makes no allegations against Kechia Lake. To the extent an answer is required to this paragraph, Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 4. 5. Paragraph 5 makes no allegations against Kechia Lake. To the extent an answer is required to this paragraph, Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 5. 6. 7. Kechia Lake denies paragraph 6. Paragraph 7 makes no allegations against Kechia Lake. To the extent an answer is required to this paragraph, Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 7. 8. Paragraph 8 makes no allegations against Kechia Lake. To the extent an answer is required to this paragraph, Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 8. 9. 10. Kechia Lake denies paragraph 9. Kechia Lake admits that Plaintiff makes claims for trademark infringement, unfair competition, and dilution, but denies liability for such claims of paragraph 10. 11. Kechia Lake admits this Court has subject matter jurisdiction but denies any remaining allegations in paragraph 11. 12. Kechia Lake admits venue is proper in this district, but denies any remaining allegations of paragraph 12. 13. Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 13. 14. 15. Kechia Lake denies the allegations of paragraph 14. Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 15. 16. 17. Kechia Lake denies the allegations of paragraph 16. Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 17. 18. Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 18. 19. 20. Kechia Lake denies the allegations of paragraph 19. Paragraph 20 makes no allegations against Kechia Lake. To the extent an answer is required to this paragraph, Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 20. 21. 22. 23. 24. Kechia Lake denies paragraph 21. Kechia Lake denies paragraph 22. Kechia Lake denies the allegations of paragraph 23. Paragraph 24 makes no allegations against Kechia Lake. To the extent an answer is required to this paragraph, Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 24. 25. Paragraph 25 makes no allegations against Kechia Lake. To the extent an answer is required to this paragraph, Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 25. 26. Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 26. 27. 28. 29. Kechia Lake denies paragraph 27. Kechia Lake denies paragraph 28. Kechia Lake denies paragraph 29. 30. 31. Kechia Lake denies paragraph 30. Kechia Lake is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 31. 32. 33. Kechia Lake denies paragraph 31. Kechia Lake denies paragraph 33. 34 - 43. Kechia Lake denies paragraphs 34 through 43. 44 49. Kechia Lake denies paragraphs 44 through 49. 50 54. Kechia Lake denies paragraphs 50 through 54. 55 57. Kechia Lake denies paragraphs 55 through 57. 58 69. Paragraphs 58 through 69 comprise a prayer for judgment by the Plaintiff. To the extent that Kechia Lake is required to admit or deny such a prayer for judgment, she denies paragraphs 58 through 69. SECOND DEFENSE Plaintiff's Third 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 Kechia Lake 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 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 Kechia Lake 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 Kechia Lake 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. TWENTIETH DEFENSE Process and service of process is insufficient with respect to Kechia Lake. Wherefore, Kechia Lake prays for judgment in her favor, costs of this action including attorney fees, and all other just and proper relief. JURY DEMAND Kechia Lake demands trial by jury. Respectfully submitted by: /s/ Stephen L. Vaughan Stephen L. Vaughan, #2294-49 INDIANO VAUGHAN LLP One N. Pennsylvania Street, Suite 1300 Indianapolis, IN 46204 Telephone: (317) 822-0033 Fax: (317) 822-0055 E-mail: Steve@IPLawIndiana.com CERTIFICATE OF SERVICE I hereby certify that on August 28, 2008, a copy of the foregoing Kechia Lake's Answer to Plaintiff's Third 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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