avid vs digisec and vice versa- digisec answer to complaint
DESCRIPTION
AshleyMadison.com's signature image, one that is now instantly recognizable to millions the world over, came from stock art, this legal doc shows. Shush.Take a look at an image comparison at aNewDomain.netTRANSCRIPT
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Larry W. McFarland (Bar No. 129668) E-Mail: [email protected] Christopher T. Varas (Bar No. 257080) E-Mail: [email protected] KILPATRICK TOWNSEND & STOCKTON LLP 9720 Wilshire Boulevard Penthouse Suite Beverly Hills, California 90212 Telephone: (310) 248-3830 Facsimile: (310) 860-0363 Attorneys for Defendants DIGISEC MEDIA AS and SIGURD VEDAL
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
WESTERN DIVISION AVID LIFE MEDIA, INC., an Ontario corporation, and AVID DATING LIFE, INC., an Ontario corporation dba ASHLEY MADISON, Plaintiffs, v. DIGISEC MEDIA AS dba www.victoriamilan.com, a Norway company; SIGURD VEDAL, an individual; and DOES 1 THROUGH 10, Defendants.
Case No.: 12-08602 JAK (FMOx) ANSWER TO COMPLAINT DEMAND FOR JURY TRIAL
Case 2:12-cv-08602-JAK-MAN Document 11 Filed 03/14/13 Page 1 of 18 Page ID #:76
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-2- ANSWER CASE NO. 12-08602 JAK (FMOx)
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Defendants DIGISEC MEDIA AS and SIGURD VEDAL (collectively
Defendants) jointly and severally respond to the complaint of AVID LIFE MEDIA,
INC. and AVID DATING LIFE, INC. (collectively Plaintiffs) (Plaintiffs and
Defendants are collectively referred to as Parties) as follows:
DEFENDANTS INTRODUCTORY ALLEGATIONS
Defendants make the following introductory allegations, which are incorporated
into each and every paragraph of this Answer.
A. Defendants are informed and believe that Plaintiffs have filed this lawsuit
in bad faith and with full knowledge that their claims are entirely without merit.
B. For example, and without limitation, Defendants are informed and
believe that the depiction of a woman with her finger near her sealed lips alleged in,
and attached to, Plaintiffs Complaint (the Alleged Trade Dress Image) is nothing
but a superficial modification of a third party stock image in which Plaintiffs own
no rights, and which is currently available for anyone to license from its real owner
through (and possibly other sites), as shown below. A true and
correct copy of the relevant page is attached hereto as Exhibit A. Plaintiffs Alleged Trade Dress Image Available For License From
C. The real infringer in this dispute is Avid. For example and without
limitation, as alleged in Digisec Ltd.s related lawsuit against Plaintiffs and other
related defendants (Case No. CV13-01849), Defendants are informed and believe that
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Avid has willfully infringed Digisecs rights by registering and using the domain
names (which replaces the m in milan with the letters r
and n), and with a bad faith intent to
profit from Digisecs distinctive registered VICTORIA MILAN mark, including by
creating fake Victoria Milan websites designed to trick consumers into signing up
with Avid in the mistaken belief that they are doing business with Digisec.
D. The website located at is a virtual replica of the
Ashley Madison website, and features the deceptive headline Victoriarnilan.com
presentsASHLEY MADISON. Not surprisingly, every link on this website
funnels users directly to Avids website, which is not
presented by or in any other way associated with Digisec. A true and correct copy
of this website is attached hereto as Exhibit B, and reproduced below with red ovals
added to indicate the multiple infringing uses of .
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E. Defendants are informed and believe that Avid is using
for similar deceptive purposes. That website purports to
be a blog owned and operated by Digisec, and even features text that has been copied
word for word from Digisecs copyrighted VICTORIA MILAN website, as well as
numerous unauthorized uses of the registered VICTORIA MILAN mark and an
unauthorized confusingly similar variation of Digisecs service mark RELIVE THE
PASSION FIND YOUR AFFAIR. Notwithstanding this extensive unauthorized use
of Digisecs intellectual property, the website is filled with advertisements for, and
links to, the website. Defendants are informed and believe that
Avid or someone acting under Avids direction or control created this website in order
to confuse and deceive consumers searching for Digisecs services into clicking
through to Avids own website that competes directly with Digisec. A true and
correct copy of the home page of this website (including an edited version of the
pornographic image that appears at the top of home page) is attached hereto as
Exhibit C and incorporated herein by reference.
F. In accordance with the foregoing and all other allegations and averments
contained herein, Defendants answer Plaintiffs complaint as set forth below.
DEFENDANTS RESPONSES TO THE ALLEGATIONS IN PLAINTIFFS COMPLAINT
Nature of Action
1. Answering Paragraph 1 of the Complaint, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in Paragraph 1, and on that basis deny each and every such allegation.
2. Answering Paragraph 2 of the Complaint, Defendants admit that the
Complaint purports to request damages and injunctive relief. Except as expressly
admitted herein, Defendants deny each and every allegation contained in Paragraph 2.
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The Parties
3. Answering Paragraph 3 of the Complaint, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in Paragraph 3, and on that basis deny each and every such allegation.
4. Answering Paragraph 4 of the Complaint, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in Paragraph 4, and on that basis deny each and every such allegation.
5. Answering Paragraph 5 of the Complaint, Defendants admit that Digisec
Media AS is a Norwegian company with its principal place of business located at
Martin Linges vei 25, N-1364 Fornebu, Norway. Defendants aver that Digisec Media
AS previously owned and operated the VICTORIA MILAN website located at
. Except as expressly admitted or averred herein, Defendants
deny each and every allegation contained in Paragraph 5.
6. Answering Paragraph 6 of the Complaint, Defendants aver that Sigurd
Vedal was previously the Chief Executive Officer of Digisec Media AS. Except as
expressly averred herein, Defendants deny each and every allegation contained in
Paragraph 6.
7. Answering Paragraph 7 of the Complaint, Defendants aver that Paragraph
7 of the Complaint does not contain any allegations to which a response is required.
To the extent a response to Paragraph 7 is required, Defendants deny each and every
such allegation contained in Paragraph 7.
8. Answering Paragraph 8 of the Complaint, Defendants aver that the
purported allegations in Paragraph 8 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 8 is required,
Defendants deny each and every such allegation contained in Paragraph 8.
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Jurisdiction And Venue
9. Answering Paragraph 9 of the Complaint, Defendants aver that the
purported allegations in Paragraph 9 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 9 is required,
Defendants deny each and every such allegation contained in Paragraph 9.
10. Answering Paragraph 10 of the Complaint, Defendants aver that the
purported allegations in Paragraph 10 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 10 is required,
Defendants deny each and every such allegation contained in Paragraph 10.
11. Answering Paragraph 11 of the Complaint, Defendants aver that the
purported allegations in Paragraph 11 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 11 is required,
Defendants deny each and every such allegation contained in Paragraph 11.
12. Answering Paragraph 12 of the Complaint, Defendants deny each and
every allegation contained in Paragraph 12.
13. Answering Paragraph 13 of the Complaint, Defendants admit that the
VICTORIA MILAN website that is available to United States users (hereinafter the
United States VICTORIA MILAN Website) is not a purely passive website. Except
as expressly admitted herein, Defendants deny each and every allegation contained in
Paragraph 13.
14. Answering Paragraph 14 of the Complaint, Defendants admit that the
United States VICTORIA MILAN Website is accessible by Internet users located in
this Judicial District. Except as expressly admitted herein, Defendants deny each and
every allegation contained in Paragraph 14.
15. Answering Paragraph 15 of the Complaint, Defendants admit that the
United States VICTORIA MILAN Website is accessible by Internet users located in
this Judicial District, and that it is possible for users to submit payments through the
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United States VICTORIA MILAN Website. Except as expressly admitted herein,
Defendants deny each and every allegation contained in Paragraph 15.
Factual Allegations
16. Answering Paragraph 16 of the Complaint, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in Paragraph 16, and on that basis deny each and every such allegation.
17. Answering Paragraph 17 of the Complaint, Defendants admit that Exhibit
C to the Complaint purports to be a print-out of the home page to which the domain
name resolves. Except as expressly admitted herein,
Defendants deny each and every allegation contained in Paragraph 17.
18. Answering Paragraph 18 of the Complaint, Defendants aver that the
purported allegations in Paragraph 18 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 18 is required,
Defendants deny each and every such allegation contained in Paragraph 18.
19. Answering Paragraph 19 of the Complaint, Defendants aver that the
purported allegations in the first sentence of Paragraph 19 are conclusions of law or
fact to which no responsive pleading is required. To the extent a response to the first
sentence of Paragraph 19 is required, Defendants deny each and every such allegation
contained in the first sentence of Paragraph 19. Defendants are without knowledge or
information sufficient to form a belief as to the truth of the allegations contained in the
second and third sentences of Paragraph 19, and on that basis deny each and every
such allegation.
20. Answering Paragraph 20 of the Complaint, Defendants are without
knowledge or information sufficient to form a belief as to the truth of the allegations
contained in Paragraph 20, and on that basis deny each and every such allegation.
21. Answering Paragraph 21 of the Complaint, Defendants aver that the
purported allegations in Paragraph 21 are conclusions of law or fact to which no
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responsive pleading is required. To the extent a response to Paragraph 21 is required,
Defendants deny each and every such allegation contained in Paragraph 21.
22. Answering Paragraph 22 of the Complaint, Defendants admit that the
parties are competitors. Except as expressly admitted herein, Defendants deny each
and every allegation contained in Paragraph 22.
23. Answering Paragraph 23 of the Complaint, Defendants aver that
consumers located in the United States were previously able to access the global
VICTORIA MILAN website at . Defendants further aver that
currently, consumers located in the United States who navigate to
are redirected to the United States VICTORIA MILAN Website
at . Except as expressly averred herein, Defendants deny each and
every allegation contained in Paragraph 23.
24. Answering Paragraph 24 of the Complaint, Defendants admit that both
parties provide discreet online dating services that cater to married or attached adults.
Except as expressly admitted herein, Defendants deny each and every allegation
contained in Paragraph 24.
25. Answering Paragraph 25 of the Complaint, Defendants admit that the
VICTORIA MILAN service was launched in 2010. Except as expressly admitted
herein, Defendants deny each and every allegation contained in Paragraph 25.
26. Answering Paragraph 26 of the Complaint, Defendants admit that
Digisec received correspondence from Avid regarding the European market in or
around January of 2011. Except as expressly admitted herein, Defendants deny each
and every allegation contained in Paragraph 26.
27. Answering Paragraph 27 of the Complaint, Defendants admit that they
received correspondence from Avids Swedish counsel [f]urther to Avids January,
2011 letter regarding the European market in or about March of 2011. Except as
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expressly admitted herein, Defendants deny each and every allegation contained in
Paragraph 27.
28. Answering Paragraph 28 of the Complaint, Defendants deny each and
every allegation contained in Paragraph 28.
29. Answering Paragraph 29 of the Complaint, Defendants admit that
Digisec Media AS filed United States Trademark Application Serial No. 79109849.
Except as expressly admitted herein, Defendants deny each and every allegation
contained in Paragraph 29.
30. Answering Paragraph 30 of the Complaint, Defendants deny each and
every allegation contained in Paragraph 30.
FIRST CAUSE OF ACTION
(For Federal Trade Dress Infringement/False Designation of Origin and Unfair
Competition under 15 U.S.C. 1125(a))
(Against All Defendants)
31. Answering Paragraph 31 of the Complaint, Defendants refer to and
incorporate Paragraphs A through F and 1 through 30 of this Answer as though fully
set forth herein.
32. Answering Paragraph 32 of the Complaint, Defendants admit that Exhibit
C to the Complaint purports to be a print-out of the home page to which the domain
name resolves. Except as expressly admitted herein,
Defendants deny each and every allegation contained in Paragraph 32.
33. Answering Paragraph 33 of the Complaint, Defendants aver that the
purported allegations in Paragraph 33 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 33 is required,
Defendants deny each and every such allegation contained in Paragraph 33.
34. Answering Paragraph 34 of the Complaint, Defendants aver that the
purported allegations in Paragraph 34 are conclusions of law or fact to which no
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responsive pleading is required. To the extent a response to Paragraph 34 is required,
Defendants deny each and every such allegation contained in Paragraph 34.
35. Answering Paragraph 35 of the Complaint, Defendants aver that the
purported allegations in Paragraph 35 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 35 is required,
Defendants deny each and every such allegation contained in Paragraph 35.
36. Answering Paragraph 36 of the Complaint, Defendants aver that the
purported allegations in Paragraph 36 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 36 is required,
Defendants deny each and every such allegation contained in Paragraph 36.
37. Answering Paragraph 37 of the Complaint, Defendants aver that the
purported allegations in Paragraph 37 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 37 is required,
Defendants deny each and every such allegation contained in Paragraph 37.
38. Answering Paragraph 38 of the Complaint, Defendants aver that the
purported allegations in Paragraph 38 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 38 is required,
Defendants deny each and every such allegation contained in Paragraph 38, and also
deny that Plaintiffs have suffered any injury or damages whatsoever.
39. Answering Paragraph 39 of the Complaint, Defendants aver that the
purported allegations in Paragraph 39 are conclusions of law or fact, or a prayer for
relief, to which no responsive pleading is required. To the extent a response to
Paragraph 39 is required, Defendants deny each and every such allegation contained
in Paragraph 39, and also deny that Plaintiffs have suffered any injury or damages
whatsoever.
40. Answering Paragraph 40 of the Complaint, Defendants aver that the
purported allegations in Paragraph 40 are conclusions of law or fact to which no
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responsive pleading is required. To the extent a response to Paragraph 40 is required,
Defendants deny each and every such allegation contained in Paragraph 40.
41. Answering Paragraph 41 of the Complaint, Defendants aver that the
purported allegations in Paragraph 41 are conclusions of law or fact, or a prayer for
relief, to which no responsive pleading is required. To the extent a response to
Paragraph 41 is required, Defendants deny each and every such allegation contained
in Paragraph 41, and also deny that Plaintiffs have suffered any injury or damages
whatsoever.
42. Answering Paragraph 42 of the Complaint, Defendants aver that the
purported allegations in Paragraph 42 are conclusions of law or fact, or a prayer for
relief, to which no responsive pleading is required. To the extent a response to
Paragraph 412 is required, Defendants deny each and every such allegation contained
in Paragraph 42, and also deny that Plaintiffs have suffered any injury or damages
whatsoever.
SECOND CAUSE OF ACTION
(Federal Trade Dress Dilution under 15 U.S.C. 1125(c))
(Against All Defendants)
43. Answering Paragraph 43 of the Complaint, Defendants refer to and
incorporate Paragraphs A through F and 1 through 42 of this Answer as though fully
set forth herein.
44. Answering Paragraph 44 of the Complaint, Defendants aver that the
purported allegations in Paragraph 44 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 44 is required,
Defendants deny each and every such allegation contained in Paragraph 44.
45. Answering Paragraph 45 of the Complaint, Defendants aver that the
purported allegations in Paragraph 45 are conclusions of law or fact to which no
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responsive pleading is required. To the extent a response to Paragraph 45 is required,
Defendants deny each and every such allegation contained in Paragraph 45.
46. Answering Paragraph 46 of the Complaint, Defendants aver that the
purported allegations in Paragraph 46 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 46 is required,
Defendants deny each and every such allegation contained in Paragraph 46.
47. Answering Paragraph 47 of the Complaint, Defendants aver that the
purported allegations in Paragraph 47 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 47 is required,
Defendants deny each and every such allegation contained in Paragraph 47, and also
deny that Plaintiffs have suffered any injury or damages whatsoever.
48. Answering Paragraph 48 of the Complaint, Defendants aver that the
purported allegations in Paragraph 48 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 48 is required,
Defendants deny each and every such allegation contained in Paragraph 48.
49. Answering Paragraph 49 of the Complaint, Defendants aver that the
purported allegations in Paragraph 49 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 49 is required,
Defendants deny each and every such allegation contained in Paragraph 49.
50. Answering Paragraph 50 of the Complaint, Defendants aver that the
purported allegations in Paragraph 50 are conclusions of law or fact, or a prayer for
relief, to which no responsive pleading is required. To the extent a response to
Paragraph 50 is required, Defendants deny each and every such allegation contained
in Paragraph 50, and also deny that Plaintiffs have suffered any injury or damages
whatsoever.
51. Answering Paragraph 51 of the Complaint, Defendants aver that the
purported allegations in Paragraph 51 are conclusions of law or fact, or a prayer for
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relief, to which no responsive pleading is required. To the extent a response to
Paragraph 51 is required, Defendants deny each and every such allegation contained
in Paragraph 51, and also deny that Plaintiffs have suffered any injury or damages
whatsoever.
THIRD CAUSE OF ACTION
(Common Law Unfair Competition)
(Against All Defendants)
52. Answering Paragraph 52 of the Complaint, Defendants refer to and
incorporate Paragraphs A through F and 1 through 51 of this Answer as though fully
set forth herein.
53. Answering Paragraph 53 of the Complaint, Defendants aver that the
purported allegations in Paragraph 53 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 53 is required,
Defendants deny each and every such allegation contained in Paragraph 53.
54. Answering Paragraph 54 of the Complaint, Defendants aver that the
purported allegations in Paragraph 54 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 54 is required,
Defendants deny each and every such allegation contained in Paragraph 54.
55. Answering Paragraph 55 of the Complaint, Defendants aver that the
purported allegations in Paragraph 55 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 55 is required,
Defendants deny each and every such allegation contained in Paragraph 55.
56. Answering Paragraph 56 of the Complaint, Defendants aver that the
purported allegations in Paragraph 56 are conclusions of law or fact, or a prayer for
relief, to which no responsive pleading is required. To the extent a response to
Paragraph 56 is required, Defendants deny each and every such allegation contained
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in Paragraph 56, and also deny that Plaintiffs have suffered any injury or damages
whatsoever.
57. Answering Paragraph 57 of the Complaint, Defendants aver that the
purported allegations in Paragraph 57 are conclusions of law or fact, or a prayer for
relief, to which no responsive pleading is required. To the extent a response to
Paragraph 57 is required, Defendants deny each and every such allegation contained
in Paragraph 57, and also deny that Plaintiffs have suffered any injury or damages
whatsoever.
FOURTH CAUSE OF ACTION
(For Unfair Competition under Cal. Bus. & Prof. Code 17200)
(Against All Defendants)
58. Answering Paragraph 58 of the Complaint, Defendants refer to and
incorporate Paragraphs A through F and 1 through 57 of this Answer as though fully
set forth herein.
59. Answering Paragraph 59 of the Complaint, Defendants aver that the
purported allegations in Paragraph 59 are conclusions of law or fact to which no
responsive pleading is required. To the extent a response to Paragraph 59 is required,
Defendants deny each and every such allegation contained in Paragraph 59.
60. Answering Paragraph 60 of the Complaint, Defendants aver that the
purported allegations in Paragraph 60 are conclusions of law or fact, or a prayer for
relief, to which no responsive pleading is required. To the extent a response to
Paragraph 60 is required, Defendants deny each and every such allegation contained
in Paragraph 60, and also deny that Plaintiffs have suffered any injury or damages
whatsoever.
61. Answering Paragraph 61 of the Complaint, Defendants aver that the
purported allegations in Paragraph 61 are conclusions of law or fact, or a prayer for
relief, to which no responsive pleading is required. To the extent a response to
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Paragraph 61 is required, Defendants deny each and every such allegation contained
in Paragraph 61, and also deny that Plaintiffs have suffered any injury or damages
whatsoever.
DEFENDANTS AFFIRMATIVE DEFENSES
Defendants jointly and severally assert the following affirmative defenses to
each and every one of Plaintiffs causes of action.
First Affirmative Defense: Failure To State A Claim
The Complaint and each and every cause of action asserted therein fails to state
a claim upon which relief can be granted.
Second Affirmative Defense: Lack Of Standing
Each and every cause of action asserted in the Complaint is barred because
Plaintiffs lack standing.
Third Affirmative Defense: Unclean Hands
Each and every cause of action asserted in the Complaint is barred by the
doctrine of unclean hands.
Fourth Affirmative Defense: Breach of License
Each and every cause of action asserted in the Complaint is barred because
Plaintiffs are maintaining them in breach of their non-exclusive license to use the
Alleged Trade Dress Image.
Fifth Affirmative Defense: Estoppel, Waiver & Acquiescence
Each and every cause of action asserted in the Complaint is barred by the
doctrines of estoppel, waiver and acquiescence.
Sixth Affirmative Defense: Laches
Each and every cause of action asserted in the Complaint is barred by the
doctrine of laches.
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Seventh Affirmative Defense: Fair Use
Each and every cause of action asserted in the Complaint is barred by the
doctrine of fair use.
Eighth Affirmative Defense: Functionality
Each and every cause of action asserted in the Complaint is barred because
Plaintiffs alleged trade dress is functional.
Ninth Affirmative Defense: Genericness
Each and every cause of action asserted in the Complaint is barred because
Plaintiffs alleged trade dress is generic.
Tenth Affirmative Defense: License
Each and every cause of action asserted in the Complaint is barred because
Defendants have at all times acted in conformance with the terms of the license
agreement(s) under which they obtained the image(s) alleged to be infringing.
Eleventh Affirmative Defense: No Ownership
Each and every cause of action asserted in the Complaint is barred because
Plaintiffs do not own any right to their alleged trade dress, including without
limitation the Alleged Trade Dress Image.
Twelfth Affirmative Defense: No Trademark/Trade Dress Use
Each and every cause of action asserted in the Complaint is barred because
Plaintiffs have not used the alleged trade dress as an indicator of source.
Thirteenth Affirmative Defense: Abandonment
Each and every cause of action asserted in the Compliant is barred because
Plaintiffs have abandoned any rights they may have had in their alleged trade dress.
Fourteenth Affirmative Defense: Naked Licensing
Each and every cause of action asserted in the Complaint is barred because
Plaintiffs have lost any rights they may have had in their alleged trade dress through
the uncontrolled, or inadequately controlled, licensing of such trade dress.
Case 2:12-cv-08602-JAK-MAN Document 11 Filed 03/14/13 Page 16 of 18 Page ID #:91
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-17- ANSWER CASE NO. 12-08602 JAK (FMOx)
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Fifteenth Affirmative Defense: Descriptive Use
Each and every cause of action asserted in the Complaint is barred because
Defendants use of the allegedly infringing image(s) has at all times been purely
descriptive.
Sixteenth Affirmative Defense: Contributory and/or Comparative Negligence
Each and every cause of action asserted in the Complaint is barred because any
confusion or damage that Plaintiffs have suffered was directly and proximately caused
or contributed to by Plaintiffs own negligence in failing to exercise reasonable care in
protecting their alleged rights.
Seventeenth Affirmative Defense: Failure to Mitigate
Each and every cause of action asserted in the Complaint is barred because
Plaintiffs have failed to mitigate their alleged damages.
Eighteenth Affirmative Defense: Any Confusion Was Created By Plaintiffs
Each and every cause of action asserted in the Complaint is barred because
Plaintiffs themselves have created any likelihood of confusion by their own deliberate
actions, including without limitation by associating a depiction of a woman with her
finger near her sealed lips with a confusingly similar variation of the registered
VICTORIA MILAN mark on .
Nineteenth Affirmative Defense: Lack Of Sufficient Particularity To Identify All
Defenses
The Complaint does not describe the facts or claims being alleged with
sufficient particularity to permit Defendants to ascertain what other defenses may
exist. Defendants will rely on all further defenses that become available during
discovery in this action. Defendants expressly reserve the right to amend this Answer
for purposes of asserting such additional affirmative defenses, or to assert such
additional affirmative defenses as permitted by law.
Case 2:12-cv-08602-JAK-MAN Document 11 Filed 03/14/13 Page 17 of 18 Page ID #:92
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-18- ANSWER CASE NO. 12-08602 JAK (FMOx)
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DEFENDANTS PRAYER FOR RELIEF
WHEREFORE, Defendants Digisec Media SA and Sigurd Vedal pray for relief
jointly and severally in defense against Plaintiffs claims as follows:
1. That Plaintiffs take nothing by their complaint;
2. That judgment be entered in favor of Defendants and against Plaintiffs;
3. That the Court award Defendants their reasonable costs of suit;
4. That the Court find this to be an exceptional case for purposes of 15
U.S.C. 1117(a), and award Defendants their reasonable attorneys fees
and costs of suit, together with pre-judgment and post-judgment interest.
Dated: March 14, 2013 By: /s/Christopher T. Varas
Christopher T. Varas KILPATRICK TOWNSEND &
STOCKTON LLP Attorneys for Defendants Digisec Media AS and Sigurd Vedal
DIGISEC MEDIA AS AND SIGURD VEDAL DEMAND A JURY TRIAL. Dated: March 14, 2013 By: /s/Christopher T. Varas
Christopher T. Varas KILPATRICK TOWNSEND &
STOCKTON LLP Attorneys for Defendants Digisec Media AS and Sigurd Vedal
Case 2:12-cv-08602-JAK-MAN Document 11 Filed 03/14/13 Page 18 of 18 Page ID #:93