zynga oregon trail answer
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4. Answering Paragraph 4 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 4, and on that
basis denies each and every such allegation.
5. Answering Paragraph 5 of the Complaint, Zynga admits that The Learning
Company approached Zynga in 2010 to inquire whether Zynga would be interested in assisting
The Learning Company in developing a version of Plaintiffs The Oregon Trail game on
Facebook. Zynga further admits that after preliminary discussions, the parties decided not to
work together. Except as admitted herein, Zynga denies each and every allegation contained in
Paragraph 5.6. Answering Paragraph 6 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 6, and on that
basis denies each and every such allegation.
7. Answering Paragraph 7 of the Complaint, Zynga is without knowledge or
information as to third-party press releases and denies each and every one of the remaining
allegations contained in Paragraph 7.
8. Answering Paragraph 8 of the Complaint, Zynga admits that the referenced article
appears at the cited link. Zynga further admits that the YouTube link contains footage of Mark
Pincus, Zyngas CEO. Zynga denies each and every one of the remaining allegations contained
in Paragraph 8.
9. Answering Paragraph 9 of the Complaint, Zynga avers 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, Zynga denies each and every one
of the allegations contained in Paragraph 9.
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PARTIES
10. Answering Paragraph 10 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 10, and on
that basis denies each and every such allegation.
11. Answering Paragraph 11 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 11, and on
that basis denies each and every such allegation.
12. Answering Paragraph 12 of the Complaint, Zynga is without knowledge or information sufficient to form a belief as to the allegations contained in Paragraph 12, and on
that basis denies each and every such allegation.
13. Answering Paragraph 13 of the Complaint, Zynga admits that it is a Delaware
corporation with its principal place of business (as corrected) at 444 De Haro Street, Suite 125,
San Francisco, California 94107.
JURISDICTION AND VENUE
14. Answering Paragraph 14 of the Complaint, Zynga avers that the purported
allegations in Paragraph 14 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 14 is required, Zynga admits that Plaintiffs
purport to assert claims under the Lanham Act, 15 U.S.C. 1051 et seq., and further admits that
this Court has subject matter jurisdiction over claims arising under federal statutes. Except as
expressly admitted herein, Zynga denies each and every allegation contained in Paragraph 14.
15. Answering Paragraph 15 of the Complaint, Zynga avers that the purported
allegations in Paragraph 15 are conclusions of law or fact to which no responsive pleading is
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required. To the extent a response to Paragraph 15 is required, Zynga admits that it is subject to
personal jurisdiction in this District and denies the remainder of the allegations.
FACTS
The Learning Company and its OREGON TRAIL Brand Game
16. Answering Paragraph 16 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 16, and on
that basis denies each and every such allegation.
17. Answering Paragraph 17 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 17, and onthat basis denies each and every such allegation.
18. Answering Paragraph 18 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 18, and on
that basis denies each and every such allegation.
19. Answering Paragraph 19 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 19, and on
that basis denies each and every such allegation.
20. Answering Paragraph 20 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 20, and on
that basis denies each and every such allegation.
21. Answering Paragraph 21 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 21, and on
that basis denies each and every such allegation.
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22. Answering Paragraph 22 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 22, and on
that basis denies each and every such allegation.
23. Answering Paragraph 23 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 23, and on
that basis denies each and every such allegation.
24. Answering Paragraph 24 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 24, and on
that basis denies each and every such allegation.25. Answering Paragraph 25 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 25, and on
that basis denies each and every such allegation.
26. Answering Paragraph 26 of the Complaint, Zynga admits that the quoted text
appears at the cited link. Zynga is without knowledge or information sufficient to form a belief
as to the remaining allegations contained in Paragraph 26, and on that basis denies each and
every such allegation.
27. Answering Paragraph 27 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 27, and on
that basis denies each and every such allegation.
28. Answering Paragraph 28 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 28, and on
that basis denies each and every such allegation.
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29. Answering Paragraph 29 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 29, and on
that basis denies each and every such allegation.
30. Answering Paragraph 30 of the Complaint, Zynga admits that in the Spring of
2010, The Learning Company approached Zynga to inquire about collaborating on the
development of the Oregon Trail game for the Facebook platform and that certain introductory
information was supplied by The Learning Company in connection with that inquiry. Zynga
further admits that the parties decided not to collaborate with each other after brief discussions.
Except as expressly admitted herein, Zynga denies each and every allegation contained inParagraph 30.
31. Answering Paragraph 31 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 31, and on
that basis denies each and every such allegation.
32. Answering Paragraph 32 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 32, and on
that basis denies each and every such allegation.
33. Answering Paragraph 33 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 33, and on
that basis denies each and every such allegation.
34. Answering Paragraph 34 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 34, and on
that basis denies each and every such allegation.
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35. Answering Paragraph 35 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 35, and on
that basis denies each and every such allegation.
36. Answering Paragraph 36 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 36, and on
that basis denies each and every such allegation.
37. Answering Paragraph 37 of the Complaint, Zynga admits that HMHCC owns a
federal registration for THE OREGON TRAIL Mark, U.S. Regis. No. 1,771,617, for computer
game programs and instruction manuals therefore sold as a unit. Zynga avers that the remainingallegations 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, except as expressly admitted
herein, Zynga denies each and every allegation contained in Paragraph 37.
38. Answering Paragraph 38 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 38, and on
that basis denies each and every such allegation.
39. Answering Paragraph 39 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 39, and on
that basis denies each and every such allegation.
Zynga and its Business
40. Answering Paragraph 40 of the Complaint, Zynga admits the allegations
contained in Paragraph 40.
41. Answering Paragraph 41 of the Complaint, Zynga admits that it has more than
1,300 employees and that it raised more than $200 million in private funding to support its
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business. Zynga further admits that some of its games allow participants to make small real-
world payments for game-world goods that advance the game or allow players to overcome
obstacles. Except as expressly admitted herein, Zynga denies each and every allegation
contained in Paragraph 41.
42. Answering Paragraph 42 of the Complaint, Zynga admits that the quoted phrase
appears at the cited link. Zynga denies each and every one of the remaining allegations
contained in Paragraph 42.
43. Answering Paragraph 43 of the Complaint, Zynga admits that the quoted phrase
appears at the cited link. Zynga denies each and every one of the remaining allegationscontained in Paragraph 43.
Zyngas Knowledge of THE OREGON TRAIL Brand
44. Answering Paragraph 44 of the Complaint, Zynga admits that it received from
The Learning Company information about Plaintiffs Oregon Trail game. Except as expressly
admitted herein, Zynga denies each and every allegation contained in Paragraph 44.
45. Answering Paragraph 45 of the Complaint, Zynga admits that Zynga launched a
game called FrontierVille in 2010. Zynga further admits that Brian Reynolds, Zyngas Head
Game Designer, has participated in interviews to promote FrontierVille, and the article cited in
Paragraph 45 includes the quoted line. Except as expressly admitted herein, Zynga denies each
and every allegation contained in Paragraph 45.
46. Answering Paragraph 46 of the Complaint, Zynga admits that The Learning
Company and Zynga had brief discussions and that certain introductory information was
supplied by The Learning Company in connection with that inquiry. Zynga denies each and
every one of the allegations contained in Paragraph 46.
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47. Answering Paragraph 47 of the Complaint, Zynga avers 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, Zynga denies each and every
allegation contained in Paragraph 47.
Zyngas Adoption of the Identical Name for the Identical Goods
48. Answering Paragraph 48 of the Complaint, Zynga admits that trailers for
FrontierVille formerly appeared at the links cited. Zynga denies each and every one of the
remaining allegations contained in Paragraph 48.
49. Answering Paragraph 49 of the Complaint, Zynga denies each and every one of the allegations contained in Paragraph 49.
50. Answering Paragraph 50 of the Complaint, Zynga admits that the screenshots
included in Paragraph 50 formerly appeared in a trailer created by Zynga. Zynga avers that the
remaining allegations in Paragraph 50 are conclusions of law or fact to which no responsive
pleading is required. To the extent a response to Paragraph 50 is required, except as expressly
admitted herein, Zynga denies each and every one of the remaining allegations contained in
Paragraph 50.
51. Answering Paragraph 51 of the Complaint, Zynga admits that its games are
available via the Internet and Facebook. Zynga denies each and every one of the remaining
allegations contained in Paragraph 51.
52. Answering Paragraph 52 of the Complaint, Zynga avers that the purported
allegations in Paragraph 52 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 52 is required, Zynga denies each and every one
of the allegations contained in Paragraph 52.
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53. Answering Paragraph 53 of the Complaint, Zynga avers 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, Zynga denies each and every one
of the allegations contained in Paragraph 53.
54. Answering Paragraph 54 of the Complaint, Zynga avers 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, Zynga denies each and every one
of the allegations contained in Paragraph 54.
55. Answering Paragraph 55 of the Complaint, Zynga avers that the purportedallegations 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, Zynga denies each and every one
of the allegations contained in Paragraph 55.
56. Answering Paragraph 56 of the Complaint, Zynga admits that HMHCC has never
granted Zynga a license to use THE OREGON TRAIL Mark but denies that Zynga was required
to obtain a license to use the term Oregon Trail in its FrontierVille game.
57. Answering Paragraph 57 of the Complaint, Zynga avers 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, Zynga
denies each and every one of the allegations contained in Paragraph 57.
ANSWER TO PURPORTED FIRST CAUSE OF ACTION(Trademark Infringement 15 U.S.C. 1114)
58. Answering Paragraph 58 of the Complaint, Zynga refers to and incorporates its
answers to Paragraphs 1 through 57 as though fully set forth herein.
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59. Answering Paragraph 59 of the Complaint, Zynga admits that HMHCC is the
owner of a federal trademark registration for THE OREGON TRAIL Mark, U.S. Regis. No.
1,771,617. Zynga is without knowledge or information sufficient to form a belief as to any of
the remaining allegations contained in Paragraph 59, and on that basis denies each and every
such allegation.
60. Answering Paragraph 60 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 60, and on
that basis denies each and every such allegation.
61. Answering Paragraph 61 of the Complaint, Zynga avers that the purportedallegations in Paragraph 61 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 61 is required, Zynga denies each and every one
of the allegations contained in Paragraph 61.
62. Answering Paragraph 62 of the Complaint, Zynga denies each and every one of
the allegations contained in Paragraph 62.
63. Answering Paragraph 63 of the Complaint, Zynga avers that the purported
allegations in Paragraph 63 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 63 is required, Zynga denies each and every one
of the allegations contained in Paragraph 63.
64. Answering Paragraph 64 of the Complaint, Zynga avers that the purported
allegations in Paragraph 64 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 64 is required, Zynga denies each and every one
of the allegations contained in Paragraph 64, and further denies that Plaintiffs have been
damaged in any amount at all.
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65. Answering Paragraph 65 of the Complaint, Zynga avers that the purported
allegations in Paragraph 65 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 65 is required, Zynga denies each and every one
of the allegations contained in Paragraph 65.
66. Answering Paragraph 66 of the Complaint, Zynga avers that the purported
allegations in Paragraph 66 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 66 is required, Zynga
denies each and every one of the allegations contained in Paragraph 66, and further denies that
Plaintiffs have been damaged in any amount at all. ANSWER TO PURPORTED SECOND CAUSE OF ACTION
(False Designation of Origin 15 U.S.C. 1125(a))
67. Answering Paragraph 67 of the Complaint, Zynga refers to and incorporates its
answers to Paragraphs 1 through 66 as though fully set forth herein.
68. Answering Paragraph 68 of the Complaint, Zynga is without knowledge or
information sufficient to form a belief as to the allegations contained in Paragraph 68, and on
that basis denies each and every such allegation.
69. Answering Paragraph 69 of the Complaint, Zynga avers that the purported
allegations in Paragraph 69 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 69 is required, Zynga denies each and every one
of the allegations contained in Paragraph 69.
70. Answering Paragraph 70 of the Complaint, Zynga avers that the purported
allegations in Paragraph 70 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 70 is required, Zynga denies each and every one
of the allegations contained in Paragraph 70.
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82. Answering Paragraph 82 of the Complaint, Zynga avers that the purported
allegations in Paragraph 82 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 82 is required, Zynga
denies each and every one of the allegations contained in Paragraph 82, and further denies that
The Learning Company has been damaged in any amount at all.
ANSWER TO PURPORTED FOURTH CAUSE OF ACTION(Unfair Competition Mass. Gen Laws ch. 93A
83. Answering Paragraph 83 of the Complaint, Zynga refers to and incorporates its
answers to Paragraphs 1 through 82 as though fully set forth herein.
84. Answering Paragraph 84 of the Complaint, Zynga avers that the purported
allegations in Paragraph 84 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 84 is required, Zynga denies each and every
allegation contained in Paragraph 84.
85. Answering Paragraph 85 of the Complaint, Zynga avers that the purported
allegations in Paragraph 85 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 85 is required, Zynga denies each and every one
of the allegations contained in Paragraph 85.
86. Answering Paragraph 86 of the Complaint, Zynga avers that the purported
allegations in Paragraph 86 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 86 is required, Zynga denies each and every one
of the allegations contained in Paragraph 86.
87. Answering Paragraph 87 of the Complaint, Zynga avers that the purported
allegations in Paragraph 87 are conclusions of law or fact to which no responsive pleading is
required. To the extent a response to Paragraph 87 is required, Zynga denies each and every one
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of the allegations contained in Paragraph 87, and further denies that The Learning Company has
been damaged in any amount at all.
AFFIRMATIVE DEFENSES
Zynga asserts the following affirmative defenses and reserves the right to assert
additional defenses if and when appropriate, including without limitation based on information
disclosed in discovery. In asserting these defenses, Zynga does not assume the burden of proof
for any issue with respect to which the relevant law places the burden of proof on Plaintiffs.
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(No Actual Controversy)
The claims against Zynga, and each of them, are barred because there is no actual
controversy between the parties.
Third Affirmative Defense(Generic Trademark)
Assuming without conceding that Plaintiffs own trademark rights in THE OREGON
TRAIL, Plaintiffs claims against Zynga, and each of them, are barred because Plaintiffs
trademark has become generic.
Fourth Affirmative Defense(No Senior Rights)
Assuming without conceding that Plaintiffs alleged THE OREGON TRAIL mark has
attained secondary meaning, Plaintiffs claims against Zynga, and each of them, are barred
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because Zynga began using the term Oregon Trail on Facebook before Plaintiffs attained
secondary meaning in THE OREGON TRAIL on Facebook.
Fifth Affirmative Defense
(No Infringement)
Assuming without conceding that Plaintiffs own trademark rights in THE OREGON
TRAIL, Plaintiffs claims against Zynga, and each of them, are barred because Zynga has not
infringed Plaintiffs rights.
Sixth Affirmative Defense(Fair Use)
Plaintiffs claims against Zynga, and each of them, are barred by the doctrine of fair use.Seventh Affirmative Defense
(Laches)
Plaintiffs claims against Zynga, and each of them, are barred by the doctrine of laches.
Eighth Affirmative Defense(Estoppel)
Plaintiffs claims against Zynga, and each of them, are barred by the doctrine of estoppel.
Ninth Affirmative Defense(No Use in Commerce)
Plaintiffs claims against Zynga, and each of the, are barred because Zynga has not made
any use in commerce of the alleged mark.
Tenth Affirmative Defense(First Amendment)
Plaintiffs claims against Zynga, and each of the, are barred based on the First
Amendment.
Eleventh Affirmative Defense
(Lawful Conduct)
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Plaintiffs claims against Zynga, and each of them, are barred because Zynga at all times
acted in compliance with the law.
Twelfth Affirmative Defense
(No Willfulness)
Assuming without conceding that Zynga does not have the right to use THE OREGON
TRAIL, Plaintiffs are not entitled to any monetary relief because Zyngas adoption and use of
the term Oregon Trail was innocent and not undertaken with knowledge of, or intent to
infringe, any rights of Plaintiffs or any other party.
Thirteenth Affirmative Defense
(Mootness)
Plaintiffs claims against Zynga, and each of them, are barred because they are moot.
COUNTERCLAIMS
Zynga alleges the following counterclaims against Plaintiffs:
THE PARTIES
1. Zynga is a Delaware corporation with its headquarters located at 444 De Haro
Street, Suite 125, San Francisco, California 94107.
2. On information and belief, The Learning Company is an unincorporated division
of Houghton Mifflin Harcourt Publishing Company.
3. On information and belief, Houghton Mifflin Harcourt Publishing Company
(Houghton Mifflin Harcourt) is a Massachusetts corporation with its principal place of
business at 222 Berkeley Street, Boston, Massachusetts 02116.
4. On information and belief, HMH Consumer Company Ltd. (HMHCC) is an
Ireland company with its principal place of business at 70 Sir John Rogersons Quay, Dublin,
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Ireland 2. HMH Consumer Company Ltd. is an affiliate of Houghton Mifflin Harcourt
Publishing Company.
JURISDICTION AND VENUE
5. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C.
1331, 1338(a) and (b), and supplemental jurisdiction under 28 U.S.C. 1367.
6 Upon information and belief, venue is proper in this Court pursuant to 28 U.S.C.
1391(b) and (c) because this is the judicial district where (i) a substantial part of the events or
omissions giving rise to the claim occurred; and (ii) where Plaintiffs are subject to personal
jurisdiction.FIRST COUNTERCLAIM
(Declaratory Judgment of Non-Infringement)
7. Zynga repeats and incorporates by reference paragraphs 1 through 6 of its
Counterclaims as if fully set forth herein.
8. Plaintiffs have expressly charged Zynga with infringement of the trademark THE
OREGON TRAIL (the Mark) by filing their Complaint against Zynga.
9. Zynga has not infringed the Mark within its FrontierVille game or any marketing
or advertising for that game.
10. Zyngas references to the Oregon Trail within its FrontierVille game or within
any marketing or advertising for that game were a descriptive and fair use.
11. An actual controversy, within the meaning of 28 U.S.C. 1331, 1338, 2201, and
2202, exists between Plaintiffs and Zynga regarding the non-infringement of the Mark.
12. Zynga is entitled to judgment declaring that Zynga has not infringed Plaintiffs
Mark based on any use or appearance of the phrase Oregon Trail within its FrontierVille game
or any marketing or advertising for that game.
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PRAYER FOR RELIEF
WHEREFORE, Zynga respectfully prays for the following relief:
A. Judgment against Plaintiffs on, and dismissal with prejudice of, the claims in
Plaintiffs Complaint against Zynga;
B. Judgment declaring that Zynga has not infringed Plaintiffs trademark THE OREGON
TRAIL;
C. Judgment awarding Zynga its costs and attorneys fees; and
D. For such other relief as the Court deems just and proper.
ROPES & GRAY LLP
Dated: June 16, 2011 By: /s/ Dalila Argaez Wendlandt______ Dalila Argaez Wendlandt (BBO #639280)Randall W. Bodner (BBO#549160)Alexandra J. Roberts (BBO# 672533)ROPES & GRAY LLPPrudential Tower 800 Boylston StreetBoston, Massachusetts 02199-3600(617) [email protected]@[email protected]
Of Counsel:Dennis L. Wilson (pro hac vice pending)David K. Caplan (BBO # 672220)KEATS MCFARLAND & WILSON, LLP9720 Wilshire Blvd., PH SuiteBeverly Hills, CA 90212Telephone: (310) [email protected]@kmwlaw.com
Attorneys for Defendant ZYNGA INC.
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CERTIFICATE OF SERVICE
I hereby certify that this document filed through the ECF system will be sent
electronically to the registered participants as identified on the Notice of Electronic Filing (NEF)
on June 16, 2011.
Dated: June 16, 2011 By: /s/ Dalila Argaez Wendlandt______ Dalila Argaez Wendlandt (BBO #639280)Randall W. Bodner (BBO#549160)Alexandra J. Roberts (BBO# 672533)ROPES & GRAY LLPPrudential Tower
800 Boylston StreetBoston, Massachusetts 02199-3600(617) [email protected]@[email protected]
Attorneys for Defendant ZYNGA INC.
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