Johnson & Johnson et al v. The American National Red Cross et al

Filing 32

Johnson & Johnson et al v. The American National Red Cross et al

Doc. 32

Roger L. Zissu (RZ 0973) Richard Z. Lehv (RL 6097) FROSS ZELNICK LEHRMAN & ZISSU, P.C. 866 United Nations Plaza New York, NY 10017 Tel: [phone] Gregory L. Diskant Rachael Kuilema Klein Ravi Sitwala Patterson Belknap Webb & Tyler LLP 1133 Avenue of the Americas New York, New York 10036 Tel: [phone] Fax: [phone] Attorneys for Plaintiffs UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK JOHNSON & JOHNSON and JOHNSON & JOHNSON CONSUMER COMPANIES, INC., Plaintiffs -againstTHE AMERICAN NATIONAL RED CROSS, LEARNING CURVE INTERNATIONAL, INC., MAGLA PRODUCTS, LLC, WATER-JEL TECHNOLOGIES, INC., and FIRST AID ONLY, INC., Defendants.

Civil Action No. 07-CV-07061 (JSR) PLAINTIFFS' REPLY TO COUNTERCLAIMS OF DEFENDANT WATER-JEL TECHNOLOGIES

Dockets.Justia.com

Plaintiffs Johnson & Johnson ("J&J") and Johnson & Johnson Consumer Companies ("JJCC" or collectively "Plaintiffs"), by their attorneys Fross Zelnick Lehrman & Zissu, P.C. and Patterson Belknap Webb & Tyler LLP, reply to the counterclaims ( the "Counterclaims") of Defendant Water-Jel Technologies, LLC ("Water-Jel") included with its Answer, Affirmative Defenses and Counterclaims as follows: RESPONSE TO PARTIES 1. 2. 3. Plaintiffs admit the allegations in paragraph 1 of the Counterclaims. Plaintiffs admit the allegations in paragraph 2 of the Counterclaims. Plaintiffs admit the allegations of paragraph 3 of the Counterclaims. RESPONSE TO JURISDICTION 4. 5. Plaintiffs admit the allegations in paragraph 4 of the Counterclaims. Plaintiffs do not contest this Court's personal jurisdiction over J&J. Plaintiffs

admit personal jurisdiction over JJCC Plaintiffs do not currently contest supplement jurisdiction. All other allegations in paragraph 5 are denied. RESPONSE TO VENUE 6. Plaintiffs admit the allegations in paragraph 6 of the Counterclaims. RESPONSE TO STATEMENT OF FACTS 7. Plaintiffs admit the allegations in the first sentence of paragraph 7 of the

Counterclaims, refer the Court to the Hearings cited in the second sentence of paragraph 7 for the text thereof, and deny the allegations in the third sentence of paragraph 7. 8. Plaintiffs deny the allegations of paragraph 8 of the Counterclaims, except

admit that there were other users of the red cross symbol, in addition to J&J, prior to 1905. 9. Plaintiffs deny the allegations of paragraph 9 of the Counterclaims.

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10. 11.

Plaintiffs deny the allegations of paragraph 10 of the Counterclaims. Plaintiffs deny the allegations of paragraph 11 of the Counterclaims.

RESPONSE TO FIRST COUNTERCLAIM Declaratory Judgment of Violation of 18 U.S.C. § 706 Pursuant to 28 U.S.C.§ 2201 12. Plaintiffs hereby repeat and reallege their answers to paragraphs 1 through

11 of the Counterclaims above as if fully set forth herein. 13. 14. 15. 16. 17. 18. Plaintiffs admit the allegations of paragraph 13 of the Counterclaims. Plaintiffs admit the allegations of paragraph 14 of the Counterclaims. Plaintiffs admit the allegations of paragraph 15 of the Counterclaims. Plaintiffs deny the allegations in paragraph 16 of the Counterclaims. Plaintiffs deny the allegations of paragraph 17 of the Counterclaims. Plaintiffs deny the allegations of paragraph 18 of the Counterclaims, and

aver that WaterJel is barred by 18 U.S.C. § 706 from using the red cross symbol and therefore cannot be harmed by J&J's assertion of rights in the red cross symbol. 19. Plaintiffs deny the allegations of paragraph 19 of the Counterclaims.

RESPONSE TO SECOND COUNTERCLAIM Cancellation of Trademark Under 15 U.S.C.§ 1119 and 15 U.S.C.1064(3) 20. Plaintiffs hereby repeat and reallege their answers to paragraphs 1 through

19 of the Counterclaims above as if fully set forth herein. 21. 22. 23. Plaintiffs admit the allegations of paragraph 21 of the Counterclaims. Plaintiffs admit the allegations of paragraph 22 of the Counterclaims. Plaintiffs admit that Water-Jel brings certain claims in paragraph 23 of the

Counterclaim, but deny that Water-Jel is entitled to the order it seeks. 24. Plaintiffs deny the allegations of paragraph 24 of the Counterclaims.

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25. 26.

Plaintiffs deny the allegations of paragraph 25 of the Counterclaims. Plaintiffs admit that J&J has asserted its rights against Water-Jel, as alleged

in paragraph 26 of the Counterclaims, but denies that Water-Jel is entitled to the relief it seeks. 27. Plaintiffs deny the allegations of paragraph 27 of the Counterclaims. AFFIRMATIVE DEFENSES First Affirmative Defense 28. The counterclaims fail to state a claim upon which relief can be granted. Second Affirmative Defense 29. Water-Jel's counterclaims are barred by the doctrine of unclean hands. Third Affirmative Defense 30. Defendant Water-Jel's claims are barred by the doctrines of acquiescence

and equitable estoppel. Fourth Affirmative Defense 31. Defendant Water-Jel's claims are barred by the doctrine of estoppel. Fifth Affirmative Defense 32. Defendant Water-Jel's claims are barred by the doctrine of laches. Sixth Affirmative Defense 33. Defendant Water-Jel has failed to mitigate their damages, if any. Seventh Affirmative Defense 34. limitations. The Counterclaims are barred by one or more applicable statutes of

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