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

Filing 267

Rene Kenney's ANSWER to 183 Amended Complaint, filed by RENE KENNEY.(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 RENE KENNEY'S ANSWER TO PLAINTIFF'S THIRD AMENDED COMPLAINT Rene Kenney, by counsel, for her Answer to Plaintiff's Third Amended Complaint states as follows: FIRST DEFENSE 1. Rene Kenney 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 Rene Kenney. To the extent an answer is required to this paragraph, Rene Kenney 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 Rene Kenney. To the extent an answer is required to this paragraph, Rene Kenney denies said allegations. 4. Paragraph 4 makes no allegations against Rene Kenney. To the extent an answer is required to this paragraph, Rene Kenney 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 Rene Kenney. To the extent an answer is required to this paragraph, Rene Kenney is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 5. 6. 7. Rene Kenney denies paragraph 6. Paragraph 7 makes no allegations against Rene Kenney 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 Rene Kenney. To the extent an answer is required to this paragraph, Rene Kenney is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 8. 9. 10. Rene Kenney denies paragraph 9. Rene Kenney admits that Plaintiff makes claims for trademark infringement, unfair competition, and dilution, but denies liability for such claims of paragraph 10. 11. Rene Kenney admits this Court has subject matter jurisdiction but denies any remaining allegations in paragraph 11. 12. Rene Kenney admits venue is proper in this district, but denies any remaining allegations of paragraph 12. 13. Rene Kenney is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 13. 14. 15. Rene Kenney denies the allegations of paragraph 14. Rene Kenney is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 15. 2 16. 17. Rene Kenney denies the allegations of paragraph 16. Rene Kenney is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 17. 18. Rene Kenney is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 18. 19. 20. Rene Kenney denies the allegations of paragraph 19. Paragraph 20 makes no allegations against Rene Kenney. To the extent an answer is required to this paragraph, Rene Kenney 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. Rene Kenney denies paragraph 21. Rene Kenney denies paragraph 22. Rene Kenney denies the allegations of paragraph 23. Paragraph 24 makes no allegations against Rene Kenney. To the extent an answer is required to this paragraph, Rene Kenney 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 Rene Kenney. To the extent an answer is required to this paragraph, Rene Kenney is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 25. 26. Rene Kenney is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 26. 27. 28. 29. Rene Kenney denies of paragraph 27. Rene Kenney denies paragraph 28. Rene Kenney denies paragraph 29. 3 30. 31. Rene Kenney denies paragraph 30. Rene Kenney is without sufficient knowledge to form a belief as to the truth of, and therefore denies the allegations of paragraph 31. 32. 33. Rene Kenney denies paragraph 32. Rene Kenney denies paragraph 33. 34 - 43. Rene Kenney denies paragraphs 34 through 43. 44 49. Rene Kenney denies paragraphs 44 through 49. 50 54. Rene Kenney denies paragraphs 50 through 54. 55 57. Rene Kenney denies paragraphs 55 through 57. 58 69. Paragraphs 58 through 69 comprise a prayer for judgment by the Plaintiff. To the extent that Rene Kenney 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. 4 FOURTH DEFENSE Rene Kenney 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 and/or licencees 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 Rene Kenney 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. 5 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. 6 FIFTEENTH DEFENSE Plaintiff and/or other alleged predecessor owners and/or licensees 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 Rene Kenney 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, Rene Kenney prays for judgment in her favor, costs of this action including attorney fees, and all other just and proper relief. 7 JURY DEMAND Rene Kenney 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 8 CERTIFICATE OF SERVICE I hereby certify that on October 10, 2008, a copy of the foregoing Rene Kenney'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 9

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