IHOP IP, LLC et al v. International House of Prayer et al

Filing 18

ANSWER to 3 Amended Complaint, on behalf of International House of Prayer East Bay.(Waters, Diane)

IN THE UNITED STATES DISTRICT COURT FOR THE
WESTERN DISTRICT OF MISSOURI
IHOP IP, LLC and INTERNATIONAL
HOUSE OF PANCAKES, LLC

)
)
)
Plaintiffs,
)
)
vs.
)
)
INTERNATIONAL HOUSE OF
)
PRAYER; FRIENDS OF THE
)
BRIDEGROOM, INC.; SHILOH
)
MINISTRIES, INC.; MIKE BICKLE;
)
and INTERNATIONAL HOUSE OF
)
PRAYER EAST BAY,
)
)
Defendants. )

Case No: 4:11-CV-00548-JTM

ANSWER OF DEFENDANT
INTERNATIONAL HOUSE OF PRAYER EAST BAY
COMES NOW Defendant International House of Prayer East Bay, by and
through counsel, Diane L. Waters of the law firm Bennett, Bodine & Waters, P.A., 11125
Johnson Drive, Suite A, Shawnee, Kansas 66203, 913-948-7900, 913-948-7901(Fax),
and for its Answer to Plaintiff’s First Amended Complaint (hereinafter “Complaint”),
hereby states and alleges as follows:
1.

Defendant is currently without sufficient information or knowledge with

which to admit or deny the allegations contained in paragraphs 1, 2, 3, and 5 and
therefore denies the same and holds plaintiffs to strict proof thereof.
2.

Defendant denies the allegations contained in paragraph 4 and holds

plaintiffs to strict proof thereof.

1

3.

As to paragraph 6, Defendant admits plaintiff is asserting an action under

the Lanham Act. Defendant denies violation of the Lanham Act.
4.

Defendant is without sufficient information or records with which to admit

or deny the allegations contained in paragraphs 7 and 9 and therefore denies the same
and holds plaintiffs to strict proof thereof.
5.

As to paragraphs 8 and 10, this answering Defendant denies personal

jurisdiction in this judicial district and further denies in engaging in any wrongful or
infringing acts in any judicial district.

Defendant further denies any remaining

allegations contained in paragraphs 8 and 10 and holds plaintiffs to strict proof thereof.
6.

Defendant is without sufficient information or knowledge with which to

admit or deny the allegations contained in paragraphs 11, 12, 13, 14, 16, 17, 20, 21, 22,
23, 24, 25, 26, 27, 28, 29, 38, 39, 40 and 41 and therefore denies the same and holds
plaintiffs to strict proof thereof.
7.

As to paragraph 15, Defendant admits that Exhibit A attached to the

complaint appears to be copies of registered trademarks. Defendant denies that such
trademarks are enforceable and further denies violating such trademarks. Defendant is
currently without sufficient information or records with which to admit or deny the
remaining allegations contained in paragraph 15 and therefore denies the same and
holds plaintiffs to strict proof thereof.
8.

Defendant denies any and all allegations contained in paragraphs 18, 19,

30, 31, 32, 33, 34, 35, 36, 37, 42, 43, and 44 and holds plaintiffs to strict proof thereof.

2

COUNT I
9.

As to paragraph 45, Defendant hereby incorporates by reference any and

all answers and responses provided herein to paragraphs 1 through 44 as if fully set
forth herein.
10.

Paragraphs 46 – 51 are not applicable to this answering Defendant and no

answer is therefore necessary.

To the extent an answer from this Defendant is

deemed necessary, Defendant is without sufficient information or records with which to
admit or deny the allegations contained in paragraphs 46 – 51 and the same are
therefore denied and plaintiffs are held to strict proof thereof.
COUNT II
11.

As to paragraph 52, Defendant hereby incorporates by reference any and

all answers and responses provided herein to paragraphs 1 through 51 as if fully set
forth herein.
12.

Paragraphs 53 – 59 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 53 through 59 and the same
are therefore denied and plaintiffs are held to strict proof thereof.

3

COUNT III
13.

As to paragraph 60, Defendant hereby incorporates by reference any and

all answers and responses provided herein to paragraphs 1 through 59 as if fully set
forth herein.
14.

Paragraphs 61 – 66 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 61 through 66 and the same
are therefore denied and plaintiffs are held to strict proof thereof.
COUNT IV
15.

As to paragraph 67, Defendant hereby incorporates by reference any and

all answers and responses provided herein to paragraphs 1 through 66 as if fully set
forth herein.
16.

Paragraphs 68 – 73 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 68 through 73 and the same
are therefore denied and plaintiffs are held to strict proof thereof.

4

COUNT V
17.

As to paragraph 74, Defendant hereby incorporates by reference any and

all answers and responses provided herein to paragraphs 1 through 73 as if fully set
forth herein.
18.

Paragraphs 75 – 81 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 75 through 81 and the same
are therefore denied and plaintiffs are held to strict proof thereof.
COUNT VI
19.

As to paragraph 82, Defendant hereby incorporates by reference any and

all answers and responses provided herein to paragraphs 1 through 81 as if fully set
forth herein.
20.

Paragraphs 83 – 88 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 83 through 88 and the same
are therefore denied and plaintiffs are held to strict proof thereof.

5

COUNT VII
21.

As to paragraph 89, Defendant hereby incorporates by reference any and

all answers and responses provided herein to paragraphs 1 through 88 as if fully set
forth herein.
22.

Paragraphs 90 – 95 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 90 through 95 and the same
are therefore denied and plaintiffs are held to strict proof thereof.
COUNT VIII
23.

As to paragraph 96, Defendant hereby incorporates by reference any and

all answers and responses provided herein to paragraphs 1 through 95 as if fully set
forth herein.
24.

Paragraphs 97 – 103 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 97 through 103 and the same
are therefore denied and plaintiffs are held to strict proof thereof.

6

COUNT IX
25.

As to paragraph 104, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 103 as if fully
set forth herein.
26.

Paragraphs 105 – 110 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 105 through 110 and the same
are therefore denied and plaintiffs are held to strict proof thereof.
COUNT X
27.

As to paragraph 111, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 110 as if fully
set forth herein.
28.

Paragraphs 112 – 117 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 112 through 117 and the same
are therefore denied and plaintiffs are held to strict proof thereof.

7

COUNT XI
29.

As to paragraph 118, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 117 as if fully
set forth herein.
30.

Paragraphs 119 – 125 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 119 through 125 and the same
are therefore denied and plaintiffs are held to strict proof thereof.
COUNT XII
31.

As to paragraph 126, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 125 as if fully
set forth herein.
32.

Paragraphs 127 – 132 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 127 through 132 and the same
are therefore denied and plaintiffs are held to strict proof thereof.

8

COUNT XIII
33.

As to paragraph 133, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 132 as if fully
set forth herein.
34.

Defendant denies any and all allegations contained in paragraphs 134,

135, 136, 137, 138, and 139 and holds plaintiffs to strict proof thereof.
COUNT XIV
35.

As to paragraph 140, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 139 as if fully
set forth herein.
36.

Defendant denies any and all allegations contained in paragraphs 141,

142, 143, 144, 145, 146, and 147 and holds plaintiffs to strict proof thereof.
COUNT XV
37.

As to paragraph 148, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 147 as if fully
set forth herein.
38.

Defendant denies any and all allegations contained in paragraphs 149,

150, 151, 152, and 153 and holds plaintiffs to strict proof thereof.

9

COUNT XVI
39.

As to paragraph 154, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 153 as if fully
set forth herein.
40.

Paragraphs 155 – 160 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 155 through 160 and the same
are therefore denied and plaintiffs are held to strict proof thereof.
COUNT XVII
41.

As to paragraph 161, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 160 as if fully
set forth herein.
42.

Paragraphs 162 – 168 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 162 through 168 and the same
are therefore denied and plaintiffs are held to strict proof thereof.

10

COUNT XVIII
43.

As to paragraph 169, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 168 as if fully
set forth herein.
44.

Paragraphs 170 – 174 are not applicable to this answering Defendant and

therefore no response is necessary. To the extent a response from this Defendant is
deemed necessary, Defendant is without sufficient information or knowledge with which
to admit or deny the allegations contained in paragraphs 170 through 174 and the same
are therefore denied and plaintiffs are held to strict proof thereof.
COUNT XIX
44.

As to paragraph 175, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 174 as if fully
set forth herein.
45.

Defendant denies any and all allegations contained in paragraphs 176 and

177 and holds plaintiffs to strict proof thereof.
COUNT XX
46.

As to paragraph 178, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 177 as if fully
set forth herein.
47.

Defendant denies any and all allegations contained in paragraphs 179 and

180 and holds plaintiffs to strict proof thereof.
11

COUNT XXI
48.

As to paragraph 181, Defendant hereby incorporates by reference any

and all answers and responses provided herein to paragraphs 1 through 180 as if fully
set forth herein.
49.

Defendant denies any and all allegations contained in paragraphs 182 and

183 and holds plaintiffs to strict proof thereof.
RELIEF SOUGHT
50.

Defendant denies that plaintiffs are entitled to any relief as requested in

paragraphs a – k and further denies that plaintiffs are entitled to any relief whatsoever.
ADDITIONAL AND AFFIRMATIVE DEFENSES
51.

All allegations in Plaintiffs’ Complaint are hereby denied except those

expressly admitted herein.
52.

The Complaint filed herein fails to state a claim upon which relief may be

granted.
53.

Plaintiff’s Complaint herein fails to state a claim upon which relief may be

granted as to this answering Defendant in that “International House of Prayer East Bay”
is not the proper legal entity and not a proper party Defendant in this action.
54.

This Court lacks personal jurisdiction over International House of Prayer

East Bay.

12

55.

International House of Prayer East Bay has insufficient contact with this

judicial district to provide personal jurisdiction. Further, exercise of personal jurisdiction
over this answering Defendant violates the due process clauses of Missouri and the
United States Constitution.
56.

Missouri law and claims, including by not limited to claims under

Mo.Rev.Stat. 417.061, are inapplicable to International House of Prayer East Bay in that
International House of Prayer East Bay has insufficient contacts with Missouri and is not
subject to Missouri laws or jurisdiction.
57.

Defendant is not using the “IHOP” designation and use of “Ihopeastbay”

does not infringe on any rights of plaintiffs.
58.

Defendant has not used names or marks that are confusingly similar to the

“IHOP Marks” or the “International House of Pancake” designation.
59.

None of the INTERNATIONAL HOUSE OF PANCAKES or IHOP Marks

are famous.
60.

None of the INTERNATIONAL HOUSE OF PANCAKES or IHOP Marks

are exclusively famous to Plaintiffs.
61.

Plaintiffs do not have substantial exclusive use of the terms “International

House of” or “IHOP”.
62.

Further, there are significant third-party uses, including, but not limited to:
IHOP Media

13

IHOP Computer Concepts
International House of Pets
International House of Ale
International House of Philadelphia
International House of Properties
International House of Pizza
International House of Platinum
The Infinite House of Praise (IHOP)
IHOP Brewery System
IHOP.net
International House of Porn
International House of Wives
63.

Other “international house of” trademarks have been registered, including,

but not limited to:
“INTERNATIONAL HOUSE OF BLUES FOUNDATION” (US PTO)
“INTERNATIONAL HOUSE OF COFFEE” (US PTO)
“INTERNATIONAL HOUSE OF SAUCES AND SEASONINGS” (US PTO)
“IHOPE USA” (US PTO)
14

“IHOOPS” (US PTO)
“IHOOP” (US PTO)
“INTERNATIONAL HOUSE OF CATALOGS” (state trademark)
“INTERNATIONAL HOUSE OF OTIS” (state trademark)
“INTERNATIONAL HOUSE OF PRAYER” (not owned by Prayer) (state
trademark)
“INTERNATIONAL HOUSE OF WINE AND CHEESE” (state trademark)
“INTERNATIONAL HOUSE CLUB” (state trademark)
“INTERNATIONAL HOUSE.” (state trademark)
64.

Use of the “International House of” and the “IHOP” acronym is widespread

among third-parties and it is clear that Plaintiffs do not have substantial exclusive use of
such terms and the marks are not famous so as to subject them to dilution or blurring.
65.

Plaintiffs’ claims for dilution fail because the marks are not famous.

66.

Defendant has not caused dilution or tarnishment of the INTERNATIONAL

HOUSE OF PANCAKE or IHOP marks.
67.

Plaintiffs’ claims are herein barred by the doctrine of unclean hands.

68.

Plaintiffs’ claims are herein barred by the equitable doctrine of laches.

69.

Plaintiffs unreasonably delayed in bringing this suit against Co-Defendants

resulting in undue prejudice as a result of the delay.
15

70.

While defendant denies any and all allegations asserted herein, Plaintiffs

unreasonably delayed in asserting the claims against this Answering Defendant and
therefore Defendant has been unduly prejudiced as a result of the delay.
71.

Plaintiffs have had constructive and/or actual knowledge of the use of

INTERNATIONAL HOUSE OF PRAYER and IHOP since as early as 1999.
72.

Co-Defendants INTERNATIONAL HOUSE OF PRAYER was founded in

1999 and they apparently began to use the marks of INTERNATIONAL HOUSE OF
PRAYER and IHOP at that time.
73.

In 1999, Co-Defendants began using the website www.IHOPKC.om.

74.

Co-Defendants apparently filed two United States Trademark Applications

in 2000 for INTERNATIONAL HOUSE OF PRAYER, which were eventually abandoned.
Plaintiffs did not file any opposition to those applications.
75.

On information and belief, Plaintiffs monitored the use of marks including

the phrase “INTERNATIONAL HOUSE OF”.
76.

On information and belief, Plaintiffs regularly monitor PTO filings and files

oppositions to police its marks. For example, Plaintiff filed an opposition in 2008 against
“International House of Sauces and Seasoning” and an opposition in 2004 against
“International House of Coffee.”
77.

On information and belief, Plaintiff had actual knowledge of the

abandoned application for “International House of Prayer” and of Co-Defendant’s use of
the acronym “IHOP” as early as 2002.
16

78.

Co-Defendant registered the domain name http://www.ihop.org

in or

about April of 2002 and has used it continually since then.
79.

It is this Answering Defendant’s understanding that, at a minimum, as of

2002, Plaintiffs were on constructive notice of Co-Defendant’s use of INTERNATIONAL
HOUSE OF PRAYER and IHOP because a reasonable inquiry would have discovered
either the website www.ihop.org or www.IHOPKC.com.
80.

Defendant herein registered the domain name http://www.ihopeastbay.org

and http://www.ihopeastbay.com in or about September of 2006 and has used it
continually through early 2011 at which time they discontinued use of those domain
names.
81.

At a minimum, Plaintiffs were on constructive notice of Defendants’ use of

INTERNATIONAL HOUSE OF PRAYER EAST BAY, IHOPEB, IHOP EAST BAY and/or
IHOPEASTBAY because a reasonable inquiry would have discovered as such.
82.

Despite

Plaintiffs

actual

knowledge

of

Defendant’s

use

of

the

INTERNATIONAL HOUSE OF PRAYER, IHOP EAST BAY, IHOPEB and/or
IHOPEASTBAY, Plaintiffs took no action until 2011 to assert the alleged trademark and
infringements and dilution.
83.

Plaintiffs’ delay in bringing this suit was unreasonable and Defendants

have been unduly prejudiced by the delay.
84.

Plaintiffs’ claims are barred by the doctrine of equitable estoppel and

laches in that Plaintiffs failed to seek enforcement of its alleged trademarks, Defendants

17

relied on such abandonment and plaintiffs should not be entitled at this point to seek
enforcement to the extreme prejudice of the Defendants.
85.

Plaintiffs’ claims under Mo.Rev.Stat. 417.061 are barred by the applicable

statute of limitations including, but not limited to, Mo.Rev.Stat. 516.120.
WHEREFORE, having fully answered, Defendant International House of Prayer
East Bay prays that the plaintiffs take not by way of their Complaint and that this
Defendant go hence with its costs and attorneys’ fees herein incurred and expended as
allowed under 15 USC 1117(a). Defendant further prays for such other and further
relief as the Court deems just and equitable.
Respectfully Submitted,
BENNETT, BODINE & WATERS, P.A.

/s/Diane L. Waters_________________
Diane L. Waters
MO 46255
11125 Johnson Drive, Suite A
Shawnee, KS 66203
913.948.7900 (Main); 913.948.7930 (Direct)
913.948.7901 (Facsimile)
Email: [e-mail]
ATTORNEY FOR DEFENDANT
INTERNATIONAL HOUSE OF PRAYER
EAST BAY

18

CERTIFICATE OF SERVICE
I hereby certify that on November 15, 2011, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system which sent notification of such
filing to the following:
Elizabeth A. Tass:
Mark McKay Iba:
Mark D. Hinderks:
Attorneys for Plaintiffs

[e-mail]
[e-mail]
[e-mail]

Keith J. Grady:
[e-mail]
Lauren E. Tucker McCubbin: [e-mail]
John M. Challis:
[e-mail]
Attorneys for International House of Prayer;
Friends of the Bridegroom, Inc.; Shiloh Ministries, Inc.;
and Mike Bickle

/s/ Diane L. Waters_________
Diane L. Waters

19