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

Filing 72

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

Doc. 72

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

Document 72

Filed 04/07/2006

Page 1 of 13

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 SECOND 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. as to the S&L is without sufficient information or knowledge 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. S&L admits that a list of copyright registration These documents speak for themselves;

documents is attached.

S&L is without sufficient information or knowledge as to the rest of the allegations contained in Paragraph 6 of the

Counterclaim and therefore denies the same. 7. 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. 8. S&L admits that it sells Products but denies the

rest of the allegations in Paragraph 7 of the Counterclaim. 9. Vitamins. 2 S&L denies that Larry Sagarin is the owner of S&L

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10. 11.

Admitted. Denied. JURISDICTION AND VENUE

12. 13.

Admitted. Admitted. AUSTRALIAN GOLD'S DISTRIBUTION SYSTEM

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. 3

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20. as to the

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

Counterclaim and therefore denies the same. 21. S&L admits that what purports to be a Distributor

Agreement is attached as an exhibit; this document speaks for itself. to the S&L is without sufficient information or knowledge as other allegations contained in Paragraph 21 of the

Counterclaim and therefore denies the same. 22. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 22 of the

Counterclaim and therefore denies the same. 23. for itself. The Distributor Agreement is a document that speaks Any other allegation in pargraph 23 contrary to the

document is denied. 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. for itself. The Distributor Agreement is a document that speaks Any other allegation in pargraph 25 contrary to the

document is denied. 26. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 26 of the

Counterclaim and therefore denies the same. 4

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27.

S&L admits that Australian Gold has sent cease and

desist letters, terminated distributors, and filed lawsuits, but denies that the parties to these lawsuits "interfered" with

defendant's distribution system. 28. 29. 30. Denied. Admitted. S&L admits that it has a retail location in

Lindenhurst, but denies that it has a location at Miller Place. The website printout is a document which speaks for itself, and S&L denies any document. 31. 32. 33. 34. 35. the Admitted. Admitted. Admitted. Admitted. Admitted that S&L Vitamin's website is identified in Results" speaks on for Yahoo! itself, The and website S&L printout any is a other allegation in pargraph 30 contrary to the

"Sponsor

document

which

denies

other

allegation in pargraph 35 contrary to the document. 36. the Admitted that S&L Vitamin's website is identified in Results" speaks on for Yahoo! itself, The and website S&L printout any is a

"Sponsor

document

which

denies

other

allegation in pargraph 35 contrary to the document. 37. Admitted that plantiffs are using Australian Gold's 5

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ntellectual property on their website, but any allegation that this is to sell lotions that compete with defendant's products is denied. 38. S&L admits that it used Australian Gold's Marks on

its website, but not that it used them in metatags. 39. 40. Denied. S&L admits that it advertised and displayed

Australian Gold products for sale by displaying a photograph and description of the Product, but denied that this is "Australian Gold's artwork." 41. 42. Denied. 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 characterizations of its

activities contained in Paragraph 42 of the Counterclaim. 43. 44. 45. 46. 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. 47. S&L admits that it purchases and sells its Products

on its website, but denies that it has refused to disclose its 6

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sources, and denies the other allegations and characterizations of its activities in Paragraph 47 of Defendant's Counterclaim. 48. S&L admits that it has sold Products in Europe, but

denies the other allegations in Pargraph 48 of the Counterclaim. 49. Denied. COUNT I ­ COPYRIGHT INFRINGEMENT 50. S&L incorporates by reference Paragraphs 1-49 of its

Answer as if fully set forth herein. 51. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 51 of the

Counterclaim and therefore denies the same, except to the extent that the documents provided speak for themselves. 52. 53. 54. 55. 56. Denied. Denied. Denied. Denied. Denied. COUNT II ­ TRADEMARK INFRINGEMENT 57. S&L incorporates by reference Paragraphs 1-56 of its

Answer as if fully set forth herein. 58. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 58 of the

Counterclaim and therefore denies the same. 7

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59.

S&L

admits

that

it

has

used

the

Marks

on

its

website, but denies the other allegations in Paragraph 59 of the Counterclaim. 60. 61. Denied. S&L admits that it has sold Products on the

internet, but denies the other allegations in Paragraph 53 of the Counterclaim. 62. S&L admits that it has sold Products outside of the

United States, but denies the other allegations in Paragraph 54 of the Counterclaim. 63. 64. 65. Denied. Denied. Denied.

COUNT II ­ UNFAIR COMPETITION UNDER THE lANHAM ACT 66. S&L incorporates by reference Paragraphs 1-65 of its

Answer as if fully set forth herein. 67. 68. 69. Denied. Denied. Denied. COUNT IV ­ TRADEMARK DILUTION 70. S&L incorporates by reference Paragraphs 1-69 of its

Answer as if fully set forth herein. 71. S&L is without sufficient information or knowledge 8

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as

to

the

allegations

contained

in

Paragraph

71

of

the

Counterclaim and therefore denies the same. 72. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 72 of the

Counterclaim and therefore denies the same. 73. 74. 75. 76. 77. Denied. Denied. Denied. Denied. Denied. COUNT V ­ TORTIOUS INTERFERENCE WITH CONTRACT 78. S&L incorporates by reference Paragraphs 1-77 of its

Answer as if fully set forth herein. 79. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 79 of the

Counterclaim and therefore denies the same. 80. Plaintiffs admit that they are currently aware of

defendant's Distributorship Agreements, but deny that they were when this lawsuit commenced. 81. 82. 83. 84. 85. Denied. Denied. Denied. Denied. Denied. 9

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86.

Denied.

COUNT VI ­ TORTIOUS INTERFERENCE WITH PROSPECTIVE ECONOMIC ADVANTAGE 87. S&L incorporates by reference Paragraphs 1-86 of its

Answer as if fully set forth herein. 88. as to the S&L is without sufficient information or knowledge allegations contained in Paragraph 88 of the

Counterclaim and therefore denies the same. 89. 90. Denied. Denied.

COUNT VII ­ UNFAIR COMPETITION AND DECEPTIVE BUSINESS PRACTICES 91. S&L incorporates by reference Paragraphs 1-90 of its

Answer as if fully set forth herein. 92. 93. 94. 95. 96. 97. Denied. Denied. Denied. Denied. Denied. No response is required, because this count was

dismissed by the Court. 98. 99. Denied. Paragraph 91 does not state an allegation for which

response is necessary.

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COUNT VII ­ STATE LAW TRADEMARK INFRINGEMENT 100. S&L incorporates by reference Paragraphs 1-99 of its

Answer as if fully set forth herein. 101. 102. Denied. Denied. COUNT VIII ­ FALSE ADVERTISING 103. S&L incorporates by reference Paragraphs 1-103 of

its Answer as if fully set forth herein. 104. 105. Denied. No response is required, because this count was

dismissed by the Court. COUNT X ­ INJUNCTIVE RELIEF 106. S&L incorporates by reference Paragraphs 1-105 of

its Answer as if fully set forth herein. 107. 108. 109. Denied. Denied. Paragraph 109 of Defendant's Counterclaim does not

state allegations which require a response. 110. Paragraph 110 of Defendant's Counterclaim does not

state allegations which require a response. 111. Paragraph 111 of Defendant's Counterclaim does not

state allegations which require a response.

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COUNT XI ­ CONSPIRACY AND CONCERT OF ACTION 112. S&L incorporates by reference Paragraphs 1-111 of

its Answer as if fully set forth herein. 113. 114. Denied. Denied. AFFIRMATIVE DEFENSES FAILURE TO STATE A CLAIM Defendant has failed to state a claim for which relief can be granted. 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.

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Dated: April 7, 2006 R ____________________________________ onald Coleman COLEMAN LAW FIRM R Professional Corporation A onald D. Coleman (RC 3875) David Stein (DS 2119) Attorneys for Plaintiff S & L Vitamins, Inc. and Third Party Defendant Larry Sagarin

CERTIFICATION OF SERVICE The undersigned herewith certifies that on the date set forth below, a copy of the within Answer to Second 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: April 7, 2006 By: R ____________________________________ onald Coleman (RC 3875)

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