S & L Vitamins, Inc. v. Australian Gold, Inc.

Filing 28

S & L Vitamins, Inc. v. Australian Gold, Inc.

Doc. 28

Case 2:05-cv-01217-JS-MLO

Document 28

Filed 08/18/2005

Page 1 of 12

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK

S & L VITAMINS, INC., Plaintiff, - vs. ­ AUSTRALIAN GOLD, INC., Defendant. AUSTRALIAN GOLD, INC., Third Party Plaintiff, - vs. ­ LARRY SAGARIN AND JOHN DOES 1-10, Third Party Defendants.

CIVIL ACTION NO. 05-CV-1217 (JS) (MLO) ANSWER TO AMENDED COUNTERCLAIMS AND AMENDED THIRD PARTY COMPLAINT

Plaintiff/Counterclaim

Defendant

S&L

Vitamins,

Inc.

and

Third Party Defendant Larry Sagarin (collectively herein after "S&L"), by counsel, for their Answer, hereby state as follows: THE PARTIES 1. S&L is without sufficient information or knowledge

as to the allegations contained in Paragraph 1 of the Counterclaim and therefore denies the same. 2. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 2 of the

Dockets.Justia.com

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Counterclaim and therefore denies the same. 3. S&L admits that a list of trademark-related

documents is attached.

These documents speak for themselves;

S&L is without sufficient information or knowledge as to the rest of the allegations contained in Paragraph 3 of the

Counterclaim and therefore denies the same. 4. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 4 of the

Counterclaim and therefore denies the same. 5. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 5 of the

Counterclaim and therefore denies the same. 6. a retail S&L admits that it does business on the internet and location in Lindenhurst, but denies that it does

business at the Miller Place location. 7. S&L admits that it sells Products but denies the

rest of the allegations in Paragraph 7 of the Counterclaim. 8. Vitamins. 9. 10. Admitted. Denied. JURISDICTION AND VENUE 11. 12. Admitted. Admitted. 2 S&L denies that Larry Sagarin is the owner of S&L

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AUSTRALIAN GOLD'S DISTRIBUTION SYSTEM 13. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 13 of the

Counterclaim and therefore denies the same. 14. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 14 of the

Counterclaim and therefore denies the same. 15. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 15 of the

Counterclaim and therefore denies the same. 16. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 16 of the

Counterclaim and therefore denies the same. 17. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 17 of the

Counterclaim and therefore denies the same. 18. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 18 of the

Counterclaim and therefore denies the same. 19. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 19 of the

Counterclaim and therefore denies the same. 20. S&L admits that what purports to be a Distributor

Agreement is attached as an exhibit; this document speaks for 3

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itself. to the

S&L is without sufficient information or knowledge as other allegations contained in Paragraph 20 of the

Counterclaim and therefore denies the same. 21. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 21 of the

Counterclaim and therefore denies the same. 22. for itself. The Distributor Agreement is a document that speaks Any other allegation in pargraph 22 contrary to the

document is denied. 23. for itself. The Distributor Agreement is a document that speaks S&L is without sufficient information or knowledge

as to the rest of the allegations contained in Paragraph 23 of the Counterclaim and therefore denies the same. 24. for itself. The Distributor Agreement is a document that speaks S&L is without sufficient information or knowledge

as to the rest of the allegations contained in Paragraph 24 of the Counterclaim and therefore denies the same. 25. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 25 of the

Counterclaim and therefore denies the same. 26. S&L admits that Australian Gold has sent at least

one cease and desist letter, and filed at least one lawsuit, but is without sufficient information or knowledge as to the other allegations contained in Paragraph 26 of the Counterclaim and 4

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therefore denies the same. 27. 28. 29. Denied. Admitted. S&L admits that it has a retail location in

Lindenhurst, but denies that it has a location at Miller Place. 30. 31. 32. 33. 34. 35. 36. 37. Admitted. Admitted. Admitted. ??? Admitted. Admitted. Denied. S&L admits that it used Australian Gold's Marks on

its website, but not that it used them in metatags. 38. 39. Denied. S&L admits that it advertised and displayed

Australian Gold products for sale by displaying a photograph and description of the Product. 40. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 5 of the

Counterclaim and therefore denies the same. 41. S&L admits that it displays its own photographs of

the Products on its website; the exhibits speak for themselves. S&L denies all allegations and 5 characterizations of its

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activities contained in Paragraph 41 of the Counterclaim. 42. 43. 44. 45. Admitted. Denied. Denied. S&L admits that it received a cease and desist

letter, the contents of which speak for themselves, and that its counsel received a blank copy of what purported to be a

Distributorship Agreement. 46. on its S&L admits that it purchases and sells its Products website, and that it has not disclosed proprietary

information to Defendant, but denies the other allegations in Paragraph 46 of Defendant's Counterclaim. 47. S&L admits that it has sold Products in Europe, but

denies the other allegations in Pargraph 47 of the Counterclaim. 48. Denied. COUNT I ­ TRADEMARK INFRINGEMENT 49. S&L incorporates by reference Paragraphs 1-48 of its

Answer as if fully set forth herein. 50. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 50 of the

Counterclaim and therefore denies the same. 51. S&L admits that it has used the Marks on its

website, but denies the other allegations in Paragraph 51 of the Counterclaim. 6

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52. 53.

Denied. S&L admits that it has sold Products on the

internet, but denies the other allegations in Paragraph 53 of the Counterclaim. 54. S&L admits that it has sold Products outside of the

United States, but denies the other allegations in Paragraph 54 of the Counterclaim. 55. 56. 57. Denied. Denied. Denied.

COUNT II ­ UNFAIR COMPETITION UNDER THE lANHAM ACT 58. S&L incorporates by reference Paragraphs 1-57 of its

Answer as if fully set forth herein. 59. 60. 61. Denied. Denied. Denied. COUNT III ­ TRADEMARK DILUTION 62. S&L incorporates by reference Paragraphs 1-61 of its

Answer as if fully set forth herein. 63. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 63 of the

Counterclaim and therefore denies the same. 64. S&L is without sufficient information or knowledge 7

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as

to

the

allegations

contained

in

Paragraph

64

of

the

Counterclaim and therefore denies the same. 65. 66. 67. 68. 69. Denied. Denied. Denied. Denied. Denied. COUNT IV ­ TORTIOUS INTERFERENCE WITH CONTRACT 70. S&L incorporates by reference Paragraphs 1-69 of its

Answer as if fully set forth herein. 71. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 71 of the

Counterclaim and therefore denies the same. 72. 73. 74. 75. 76. 77. 78. Denied. Denied. Denied. Denied. Denied. Denied. Denied.

COUNT V ­ TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE 79. S&L incorporates by reference Paragraphs 1-78 of its

Answer as if fully set forth herein. 8

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80. as to the

S&L is without sufficient information or knowledge allegations contained in Paragraph 80 of the

Counterclaim and therefore denies the same. 81. 82. Denied. Denied.

COUNT VI ­ UNFAIR COMPETITION AND DECEPTIVE BUSINESS PRACTICES 83. S&L incorporates by reference Paragraphs 1-82 of its

Answer as if fully set forth herein. 84. 85. 86. 87. 88. 89. 90. 91. Denied. Denied. Denied. Denied. Denied. Denied. Denied. Paragraph 91 does not state an allegation for which

response is necessary. COUNT VII ­ STATE LAW TRADEMARK INFRINGEMENT 92. S&L incorporates by reference Paragraphs 1-91 of its

Answer as if fully set forth herein. 93. 94. Denied. Denied.

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COUNT VIII ­ FALSE ADVERTISING 95. S&L incorporates by reference Paragraphs 1-94 of its

Answer as if fully set forth herein. 96. 97. Denied. Denied. COUNT IX ­ INJUNCTIVE RELIEF 98. S&L incorporates by reference Paragraphs 1-97 of its

Answer as if fully set forth herein. 99. 100. 101. Denied. Denied. Paragraph 101 of Defendant's Counterclaim does not

state allegations which require a response. 102. Paragraph 102 of Defendant's Counterclaim does not

state allegations which require a response. COUNT X ­ CONSPIRACY AND CONCERT OF ACTION 103. S&L incorporates by reference Paragraphs 1-102 of

its Answer as if fully set forth herein. 104. 105. Denied. Denied. AFFIRMATIVE DEFENSES FAILURE TO STATE A CLAIM Defendant has failed to state a claim for which relief can be granted. 10

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UNCLEAN HANDS Defendant's claims are barred by the doctrine of unclean hands. FAIR USE Any use by plaintiffs of trademarks owned by defendant was fair use and not trademark use.

WHEREFORE, plaintiffs demand that defendant's counterclaim and third party claim be dismissed, with prejudice, in their entirety, and that plaintiffs be granted their attorneys fees and costs of suit.

Dated: August 18, 2005 ____________________________________ Ronald Coleman COLEMAN LAW FIRM A Professional Corporation Ronald D. Coleman (RC 3875) David Stein (DS 2119) Attorneys for Plaintiff S & L Vitamins, Inc. and Third Party Defendant Larry Sagarin

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CERTIFICATION OF SERVICE The undersigned herewith certifies that on the date set forth below, a copy of the within Answer to Amended

Counterclaims and Amended Third Party Complaint was served via Electronic Case Filing upon plaintiff's counsel: Francis J. Earley, Esq. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. 666 Third Avenue New York, NY 10017 Dated: August 18, 2005 By: ____________________________________ Ronald Coleman (RC 3875)

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