Weather Underground, Incorporated v. Navigation Catalyst Systems, Incorporated et al

Filing 191

ANSWER to Amended Complaint with Affirmative Defenses with Jury Demand by Connexus Corporation, Epic Media Group, Incorporated, Firstlook, Incorporated, Navigation Catalyst Systems, Incorporated. (Delgado, William)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF MICHIGAN

THE WEATHER UNDERGROUND, INC.,
a Michigan corporation,
Plaintiff,
Case No. 2:09-CV-10756
Hon. Marianne O. Battani

vs.
NAVIGATION CATALYST SYSTEMS, INC.,
a Delaware corporation; CONNEXUS CORP.,
a Delaware corporation; FIRSTLOOK, INC.,
a Delaware corporation; and EPIC MEDIA
GROUP, INC., a Delaware corporation,

Defendants.
______________________________________________________________________
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
Anthony P. Patti (P43729)
BUTZEL LONG, P.C.
HOOPER HATHAWAY, PC
150 West Jefferson, Suite 100
126 South Main Street
Detroit, MI 48226
Ann Arbor, MI 48104
[phone]
734-662-4426
[e-mail]
[e-mail]
[e-mail]
Attorneys for Plaintiff
Local Counsel for Defendants
______________________________________________________________________

CONNEXUS CORPORATION, FIRSTLOOK, INC., NAVIGATION CATALYST
SYSTEMS, INC. AND EPIC MEDIA GROUP, INC.’S ANSWER TO FIRST AMENDED
COMPLAINT

Defendants Connexus Corporation, Firstlook, Inc., Navigation Catalyst Systems, Inc. and
Epic Media Group, Inc. (“Answering Defendants”) for their Answer to Plaintiff’s First Amended
Complaint state as follows:
I.

PARTIES, JURISDICTION, AND VENUE
1.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
2.

Answering Defendants admit that Navigation Catalyst Systems, Inc. (“NCS”) is a

for profit corporation organized and existing under the laws of the State of Delaware with a
principal place of business at 2141 Rosecrans Avenue, #2020, El Segundo, CA 90245. Except as
expressly admitted, the allegations in this paragraph are denied.
3.

Answering Defendants admit that Connexus Corporation is a for profit

organization organized and existing under the laws of the State of Delaware with its principal
place of business at 2141 Rosecrans Avenue, #2020, El Segundo, California 90245. Except as
expressly admitted, the allegations in this paragraph are denied.
4.

Answering Defendants admit that Firstlook, Inc. is a for profit organization

organized and existing under the laws of the State of Delaware with its principal place of
business at 2141 Rosecrans Avenue, #2020, El Segundo, California 90245 and that Firstlook is a
wholly owned subsidiary of Connexus. Except as expressly admitted, the allegations in this
paragraph are denied.

5.

Answering Defendants admit that Epic Media Group, Inc. is a for profit

organization organized and existing under the laws of the State of Delaware. Except as expressly
admitted, the allegations in this paragraph are denied.
6.

Answering Defendants admit that NCS does not pay employees, have bank

accounts or tangible assets. Except as expressly admitted, the allegations in this paragraph are
denied.
7.

Answering Defendants admit that NCS acts as a registrant for domain names.

Except as expressly admitted, the allegations in this paragraph are denied.
8.

Answering Defendants admit that Epic Media continues to operate a business

using that name. Answering Defendants admit that Connexus continues to operate a business
using that name. Except as expressly admitted, the allegations in this paragraph are denied.
9.

Denied.

10.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
11.

Denied.

12.

Denied.

13.

Denied.

14.

Denied.

15.

Denied.

16.

Denied.

17.

Denied.
2

18.

Denied.

19.

Answering Defendants admit that Plaintiff purports to bring a lawsuit pursuant to

the Trademark Act of 1946 but deny any liability thereunder or that Plaintiff is entitled to any
relief.
20.
21.

Admitted.

22.

Denied.

23.
II.

Admitted.

Denied.

PLAINTIFF’S BUSINESS AND USE OF THE INTERNET
24.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
25.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
26.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
27.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.

3

28.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
29.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
30.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
31.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
32.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
33.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
34.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.

4

35.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
36.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
37.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
38.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
III.

PLAINTIFF’S TRADEMARKS AND SERVICE MARKS
39.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
40.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
41.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
5

42.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
43.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
44.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
45.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
46.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
47.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
48.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.

6

49.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
50.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
51.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
52.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
53.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
IV.

DEFENDANTS’ BUSINESS
54.

Answering Defendants admit that “direct navigation” describes the method of

typing a domain name or URL directly into the browser address bar in order to arrive at a
specific website. Answering Defendants are without sufficient knowledge or belief as to the
truth of the remaining allegations contained in this paragraph and, on that basis, deny each and
every allegation contained in this paragraph.

7

55.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
56.

Denied.

57.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
58.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
59.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
60.

Denied.

61.

Denied.

62.

Denied.

63.

Denied.

64.

Answering Defendants admit that NCS and Firstlook used, in part, an automated

software system to register and monetize domain names. Except as expressly admitted, the
allegations of this paragraph are denied.
65.

Denied.

66.

Denied.
8

67.
V.

Denied.

DEFENDANTS’ UNLAWFUL ACTIONS

(Answering Defendants deny that any action taken by them, or any of them, was unlawful.)
A.

Registration, Trafficking, and Use of Infringing Domain Names.

(Answering Defendants deny any domain name registered or used by them infringed the rights of
any party.)
68.

Answering Defendants admit that NCS was the registrant of various domain

names that are the subject of this litigation. Except as expressly admitted, the allegations of this
paragraph are denied.
69.

Denied.

70.

Denied.

71.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
72.

Answering Defendants admit that it appears that the earliest registration of a

domain name that is at issue in this matter was on or near July 7, 2004. Except as expressly
admitted, the allegations of this paragraph are denied.
73.

Denied.

74.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.

9

75.

Answering Defendants admit that the UDRP Complaint contained the 41 domain

names listed in the paragraph. Except as expressly admitted, the allegations of this paragraph are
denied.
76.

Admitted.

77.

Admitted.

78.

Denied.

79.

Answering Defendants are without sufficient knowledge or belief as to the truth

of the allegations contained in this paragraph and, on that basis, deny each and every allegation
contained in this paragraph.
B.

Continued Mass Cybersquatting Evidences Defendants’ Unlawful Business
Model and Bad Faith Intent to Profit.

(Answering Defendants deny that they have engaged in any cybersquatting, that they have
engaged in any unlawful business practice or that they have any bad faith intent to profit.)
80.

Denied.

81.

Answering Defendants admit that NCS and Firstlook use, in part, an automated

software system to register and monetize domain names. Except as expressly admitted, the
allegations in this paragraph are denied.
82.

Answering Defendants admits that NCS has been sued in federal court, including

the lawsuits listed in this paragraph. Except as expressly admitted, the allegations in this
paragraph are denied.
83.

Denied.

84.

Denied.
10

85.

Denied.

86.

Denied.

87.

Answering Defendants admit that Domain Name Proxy provides privacy

protection against immediately public disclosure of registrant information. Except as expressly
admitted, the allegations in the paragraph are denied.
COUNT I
DIRECT & CONTRIBUTORY CYBERSQUATTING UNDER THE ANTICYBERSQUATTING CONSUMER PROTECTION ACT – 15 U.S.C. § 1125(d)
88.

Answering Defendants incorporate their responses to paragraphs 1-87 above as

though fully set forth herein.
89.

Denied.

90.

Denied.

91.

Denied.

92.

Denied.

93.

Denied.

94.

Denied.

95.

Denied.

96.

Denied.

97.

Denied.

98.

Denied.

99.

Denied.

100.

Denied.
11

101.

Denied.

102.

Denied.

103.

Denied.

104.

Denied.

105.

Denied.

106.

Denied.

107.

Denied.

108.

Denied.

109.

Denied.

110.

Denied.
COUNT II

DIRECT & CONTRIBUTORY TRADEMARK INFRINGEMENT UNDER THE
LANHAM ACT – 15 U.S.C. § 1114(1)
111.

Answering Defendants incorporate their responses to paragraphs 1-110 above as

though fully set forth herein.
112.

Denied.

113.

Denied.

114.

Denied.

115.

Denied.

116.

Denied.

117.

Denied.

118.

Denied.
12

119.

Denied.

120.

Denied.
COUNT III

DIRECT & CONTRIBUTORY FALSE DESIGNATION OF ORIGIN UNDER THE
LANHAM ACT – 15 U.S.C. § 1125(a)
121.

Answering Defendants incorporate their responses to paragraphs 1-120 above as

though fully set forth herein.
122.

Denied.

123.

Denied.

124.

Denied.

125.

Denied.

126.

Denied.

127.

Denied.

128.

Denied.

129.

Denied.
COUNT IV

DIRECT AND CONTRIBUTORY DILUATION UNDER 15 U.S.C. § 1125(c)
130.

Answering Defendants incorporate their responses to paragraphs 1-129 above as

though fully set forth herein.
131.

Denied.

132.

Denied.

133.

Denied.
13

134.

Denied.

135.

Denied.

136.

Denied.

137.

Denied.

138.

Denied.
COUNT V

UNFAIR COMPETITION AND TRADEMARK INFRINGEMENT UNDER STATE
COMMON LAW
139.

Answering Defendants incorporate their responses to paragraphs 1-138 above as

though fully set forth herein.
140.

Denied.

141.

Denied.

142.

Denied.

143.

Denied.

144.

Denied.

145.

Denied.

146.

Denied.

147.

Denied.

148.

Denied.
COUNT VI

VICARIOUS TRADEMARK INFRINGEMENT, DILUATION, AND
CYBERSQUATTING
14

149.

Answering Defendants incorporate their responses to paragraphs 1-148 above as

though fully set forth herein.
150.

Denied.

151.

Denied.

152.

Denied.

153.

Denied.

154.

Denied.

155.

Denied.

156.

Denied.

157.

Denied.

158.

Denied.
COUNT VII
CIVIL CONSPIRACY

159.

Answering Defendants incorporate their responses to paragraphs 1-158 above as

though fully set forth herein.
160.

Denied.

161.

Denied.

162.

Denied.

163.

Denied.

164.

Denied.

165.

Denied.

166.

Denied.
15

167.

Denied.
COUNT VIII
DECLARATORY JUDGMENT

168.

Answering Defendants incorporate their responses to paragraphs 1-167 above as

though fully set forth herein.
169.

Denied.

170.

Denied.

171.

Denied.
RESPONSE TO PRAYER FOR RELIEF

Wherefore Answering Defendants deny all requested relief by Plaintiff and pray for
judgment on all counts as set forth above, further requesting that they be entitled to recover for
its costs and reasonable attorneys’ fees and whatever further relief as the Court deems just in this
matter.
AFFIRMATIVE DEFENSES
For their Affirmative Defenses, Answering Defendants state as follows:
First Affirmative Defense
The complaint fails to state a claim upon which relief can be granted.
Second Affirmative Defense
The complaint has been rendered moot and not justiciable as a result of the UDRP
proceeding which preceded the filing of this lawsuit.
Third Affirmative Defense
The court lacks personal jurisdiction over Answering Defendants.
16

Fourth Affirmative Defense
This court is not the proper venue for the claims raised in the complaint.
Fifth Affirmative Defense
Plaintiff’s claims or recovery thereon are barred, in whole or in part, because
Answering Defendants believed and had reasonable grounds to believe that any use of Plaintiff’s
marks was a fair use, nominative use, comparative use, or otherwise lawful.
Sixth Affirmative Defense
Plaintiff’s claims or recovery thereon are barred, in whole or in part, because Answering
Defendants’ actions constitute fair competition.
Seventh Affirmative Defense
Plaintiff is barred from obtaining any relief from Answering Defendants in this action
because Plaintiff has suffered no injury or damage as a result of any act or conduct by Answering
Defendants.
Eighth Affirmative Defense
Plaintiff’s claims, including its request for statutory damages, are barred, in whole or in
part, because all of Answering Defendants’ actions were in good faith without malice and/or did
not result in any false or misleading statements, infringement, or confusion.
Ninth Affirmative Defense
Plaintiff’s claim for injunctive relief is barred as a matter of law because Plaintiff has not
suffered any irreparable harm as a result of the acts alleged in the complaint.
Tenth Affirmative Defense

17

Plaintiff’s claim for damages is barred, in whole or in part, because the purported
damages are too speculative or uncertain.
Eleventh Affirmative Defense
The injuries and damages alleged by Plaintiff, if any, were proximately caused by
persons or entities other than Answering Defendants, whether named or not named in this action,
over whom Answering Defendants had no authority or control.
Twelfth Affirmative Defense
Plaintiff has failed to mitigate its damages.
Thirteenth Affirmative Defense
Plaintiff does not have exclusive rights to the words WUND, WUNDER, or any words
containing these letters in this order.
Additional Affirmative Defenses
Answering Defendants reserve the right to assert such additional affirmative defenses as
necessary based on such ongoing investigation and discovery.
RESPECTFULLY SUBMITTED this 19th day of July, 2011.
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

18

DEMAND FOR JURY TRIAL

Answering Defendants hereby demand trial by jury on all issues so triable.
RESPECTFULLY SUBMITTED this 19th day of July, 2011.
/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

19

CERTIFICATE OF SERVICE
I hereby certify that on July 19, 2011, I electronically filed the foregoing paper
with the Court using the ECF system which will send notification of such filing to the
following:
Enrico Schaefer (P43506)
Brian A. Hall (P70865)
TRAVERSE LEGAL, PLC
810 Cottageview Drive, Unit G-20
Traverse City, MI 49686
231-932-0411
[e-mail]
[e-mail]
Lead Attorneys for Plaintiff

Nicholas J. Stasevich (P41896)
Benjamin K. Steffans (P69712)
BUTZEL LONG, P.C.
150 West Jefferson, Suite 100
Detroit, MI 48226
[phone]
[e-mail]
[e-mail]
Local Counsel for Defendants

Anthony P. Patti (P43729)
HOOPER HATHAWAY, PC
126 South Main Street
Ann Arbor, MI 48104
734-662-4426
[e-mail]
Attorneys for Plaintiff

William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

/s/William A. Delgado
William A. Delgado
WILLENKEN WILSON LOH & LIEB LLP
707 Wilshire Boulevard, Suite 3850
Los Angeles, CA 90017
[phone]
[e-mail]
Lead Counsel for Defendants

20