Case 2:22-cv-07311-AB-RAO Document 17 Filed 12/12/22 Page 1 of 9 Page ID #:64
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`
`Konrad K. Gatien (Bar No. 221770)
`E-Mail: kg@keatsgatien.com
`Matthew E. Graham (Bar No. 308115)
`E-Mail: matt@keatsgatien.com
`KEATS GATIEN, LLP
`120 S. El Camino Drive, Suite 207
`Beverly Hills, CA 90212
`Telephone: (424) 302-0692
`
`Attorneys for Defendant
`WALMART INC.
`
`
`
`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
`WESTERN DIVISION
`Case No.: 2:22-cv-07311 AB (RAOx)
`
`
`ANSWER OF DEFENDANT
`WALMART INC.
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`PATAGONIA, INC.,
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` v.
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`WALMART INC. and ROBIN RUTH
`USA,
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`
`Plaintiff,
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`Defendants.
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`Defendant, WALMART INC. (“Defendant” or “Walmart”), by and through its
`undersigned counsel hereby files, on behalf of itself and no other defendant(s), its
`Answer to the Complaint filed by Plaintiff, PATAGONIA, INC. (“Plaintiff” or
`“Patagonia”), and in so doing, states and alleges as follows:
`Answering the prefatory paragraph of the Complaint in which Plaintiff makes
`various allegations to the effect that the filing of this “lawsuit is necessary to stop
`Defendants from copying Patagonia’s famous logo and using the mark to sell their t-
`shirts”, and concerning Plaintiff’s alleged rights and Walmart’s alleged acts, Walmart
`admits to selling items that look like the item depicted in the image in said paragraph;
`however, other than said admission, Walmart generally and specifically denies every
`such allegation.
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`-1-
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`ANSWER OF WALMART INC.
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`

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`Case 2:22-cv-07311-AB-RAO Document 17 Filed 12/12/22 Page 2 of 9 Page ID #:65
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`PARTIES, JURISDICTION, AND VENUE
`Answering paragraph 1 of the Complaint, Walmart is without sufficient
`1.
`knowledge or information to form a belief as to the truth and accuracy of the
`allegations therein, and, on that basis, denies every such allegation.
`Answering paragraph 2 of the Complaint, Walmart admits that it is a
`2.
`Delaware corporation with headquarters at 702 S.W. 8th St. Bentonville, Arkansas
`72716, that Walmart operates general retail stores throughout the country, and that
`Walmart has an online retail store at www.walmart.com. Walmart admits that it has
`an active link at https://www.walmart.com/c/kp/california-t-shirts. Other than as
`expressly so admitted, Walmart generally and specifically denies the remaining
`allegations of said paragraph, and expressly denies that it has violated any laws
`whatsoever including, but not limited to, the federal, state, and common law claims
`alleged in the Complaint.
` Answering paragraph 3 of the Complaint, Walmart is without sufficient
`3.
`knowledge or information to form a belief as to the truth and accuracy of the
`allegations therein, and, on that basis, denies every such allegation.
`Answering paragraph 4 of the Complaint, Walmart admits that the
`4.
`statutes cited by Patagonia relate to the alleged claims, and that the Court has prima
`facie jurisdiction over said claims; however, Walmart generally and specifically
`denies that there is any merit to Patagonia’s alleged claims, denies any liability to
`Plaintiff, and denies that Walmart has violated any laws whatsoever relating to said
`claims including, but not limited to, the federal, state, and common law claims alleged
`in the Complaint.
`Answering paragraph 5 of the Complaint, Walmart admits that that the
`5.
`Court has personal jurisdiction over Walmart. Except as expressly so admitted,
`Walmart generally and specifically denies every remaining allegation of said
`paragraph.
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`-2-
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`ANSWER OF WALMART INC.
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`

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`Case 2:22-cv-07311-AB-RAO Document 17 Filed 12/12/22 Page 3 of 9 Page ID #:66
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`Answering paragraph 6 of the Complaint, Defendant admits that venue
`6.
`for this action is proper in the Central District of California, Western Division. Except
`as expressly so admitted, Defendant generally and specifically denies every allegation
`of paragraph 6 of the Complaint and expressly denies that it has violated any laws
`whatsoever including, but not limited to, the federal, state, and common law claims
`alleged in the Complaint.
`FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS
`Answering paragraph 7 of the Complaint, Walmart is without sufficient
`7.
`knowledge or information to form a belief as to the truth and accuracy of the
`allegations therein, and, on that basis, denies every such allegation.
`Answering paragraph 8 of the Complaint, Walmart is without sufficient
`8.
`knowledge or information to form a belief as to the truth and accuracy of the
`allegations therein, and, on that basis, denies every such allegation.
`Answering paragraph 9 of the Complaint, Walmart is without sufficient
`9.
`knowledge or information to form a belief as to the truth and accuracy of the
`allegations therein, and, on that basis, denies every such allegation.
`10. Answering paragraph 10 of the Complaint, Walmart is without sufficient
`knowledge or information to form a belief as to the truth and accuracy of the
`allegations therein, and, on that basis, denies every such allegation.
`11. Answering paragraph 11 of the Complaint, Walmart is without sufficient
`knowledge or information to form a belief as to the truth and accuracy of the
`allegations therein, and, on that basis, denies every such allegation.
`12. Answering paragraph 12 of the Complaint, Walmart is without sufficient
`knowledge or information to form a belief as to the truth and accuracy of the
`allegations therein, and, on that basis, denies every such allegation.
`13. Answering paragraph 13 of the Complaint, Walmart is without sufficient
`knowledge or information to form a belief as to the truth and accuracy of the
`allegations therein, and, on that basis, denies every such allegation.
`-3-
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`ANSWER OF WALMART INC.
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`

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`Case 2:22-cv-07311-AB-RAO Document 17 Filed 12/12/22 Page 4 of 9 Page ID #:67
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`DEFENDANTS’ [ALLEGED] INFRINGEMENT OF PATAGONIA’S RIGHTS
`14. Answering paragraph 14 of the Complaint, Walmart admits to selling
`items that look like the item depicted in the image on page 2, lines 1-15 of the
`Complaint; however, other than as expressly so admitted, Walmart generally and
`specifically denies every allegation of said paragraph.
`15. Answering paragraph 15 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`16. Answering paragraph 16 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`17. Answering paragraph 17 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`18. Answering paragraph 18 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`19. Answering paragraph 19 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`20. Answering paragraph 20 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`FIRST CAUSE OF ACTION
`FEDERAL TRADEMARK INFRINGEMENT
`(15 U.S.C. §§ 1114-1117)
`21. Answering paragraph 21 of the Complaint, except as expressly admitted
`in the preceding paragraphs hereof, Walmart denies every such allegation.
`22. Answering paragraph 22 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`23. Answering paragraph 23 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`24. Answering paragraph 24 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`-4-
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`ANSWER OF WALMART INC.
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`

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`Case 2:22-cv-07311-AB-RAO Document 17 Filed 12/12/22 Page 5 of 9 Page ID #:68
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`25. Answering paragraph 25 of the Complaint, Walmart generally and
`specifically denies every allegation of said paragraph.
`SECOND CLAIM
`FEDERAL UNFAIR COMPETITION
`(False Designation of Origin and False Description – 15 U.S.C. § 1125(a))
`26. Answering paragraph 26 of the Complaint, except as expressly admitted
`in the preceding paragraphs hereof, Walmart denies every such allegation.
`27. Answering paragraph 27 of the Complaint, Defendant denies every such
`allegation.
`28. Answering paragraph 28 of the Complaint, Defendant denies every such
`allegation.
`29. Answering paragraph 29 of the Complaint, Defendant denies every such
`allegation.
`
`THIRD CLAIM
`FEDERAL DILUTION OF FAMOUS MARK
`(Trademark Dilution Revision Act of 2006, 15 U.S.C. § 1125(c))
`30. Answering paragraph 30 of the Complaint, except as expressly admitted
`in the preceding paragraphs hereof, Walmart denies every such allegation.
`31. Answering paragraph 31 of the Complaint, Defendant denies every such
`allegation.
`32. Answering paragraph 32 of the Complaint, Defendant denies every such
`allegation.
`33. Answering paragraph 33 of the Complaint, Defendant denies every such
`allegation.
`34. Answering paragraph 34 of the Complaint, Defendant denies every such
`allegation.
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`-5-
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`ANSWER OF WALMART INC.
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`

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`Case 2:22-cv-07311-AB-RAO Document 17 Filed 12/12/22 Page 6 of 9 Page ID #:69
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`FOURTH CLAIM
`FEDERAL COPYRIGHT INFRINGEMENT
`(17 U.S.C. §§ 101, et seq., and 17 U.S.C. §§ 501, et seq.)
`35. Answering paragraph 35 of the Complaint, except as expressly admitted
`in the preceding paragraphs hereof, Walmart denies every such allegation.
`36. Answering paragraph 36 of the Complaint, Defendant denies every such
`allegation.
`37. Answering paragraph 37 of the Complaint, Defendant denies every such
`allegation.
`38. Answering paragraph 38 of the Complaint, Defendant denies every such
`allegation.
`39. Answering paragraph 39 of the Complaint, Defendant denies every such
`allegation.
`40. Answering paragraph 40 of the Complaint, Defendant denies every such
`allegation.
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`FIFTH CLAIM
`TRADEMARK INFRINGEMENT AND UNFAIR COMPETITION
`UNDER CALIFORNIA STATUTORY LAW
`(Cal. Bus. & Prof. Code §§ 14200 et seq.;
`Cal. Bus. & Prof. Code § 17200 et seq.)
`41. Answering paragraph 41 of the Complaint, except as expressly admitted
`in the preceding paragraphs hereof, Walmart denies every such allegation.
`42. Answering paragraph 42 of the Complaint, Defendant denies every such
`allegation.
`43. Answering paragraph 43 of the Complaint, Defendant denies every such
`allegation.
`44. Answering paragraph 44 of the Complaint, Defendant denies every such
`allegation.
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`-6-
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`ANSWER OF WALMART INC.
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`Case 2:22-cv-07311-AB-RAO Document 17 Filed 12/12/22 Page 7 of 9 Page ID #:70
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`45. Answering paragraph 45 of the Complaint, Defendant denies every such
`allegation.
`46. Answering paragraph 40 of the Complaint, Defendant denies every such
`allegation.
`47. Answering paragraph 47 of the Complaint, Defendant denies every such
`allegation.
`48. Answering paragraph 48 of the Complaint, Defendant denies every such
`allegation.
`49. Answering paragraph 49 of the Complaint, Defendant denies every such
`allegation.
`50. Answering paragraph 50 of the Complaint, Defendant denies every such
`allegation.
`
`SIXTH CLAIM
`TRADEMARK DILUTION UNDER CALIFORNIA LAW
`(Cal. Bus. & Prof. Code § 14247)
`51. Answering paragraph 51 of the Complaint, except as expressly admitted
`in the preceding paragraphs hereof, Walmart denies every such allegation.
`52. Answering paragraph 52 of the Complaint, Defendant denies every such
`allegation.
`53. Answering paragraph 53 of the Complaint, Defendant denies every such
`allegation.
`54. Answering paragraph 54 of the Complaint, Defendant denies every such
`allegation.
`55. Answering paragraph 55 of the Complaint, Defendant denies every such
`allegation.
`56. Answering paragraph 56 of the Complaint, Defendant denies every such
`allegation.
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`ANSWER OF WALMART INC.
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`Case 2:22-cv-07311-AB-RAO Document 17 Filed 12/12/22 Page 8 of 9 Page ID #:71
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`SEVENTH CLAIM
`TRADEMARK INFRINGEMENT UNDER CALIFORNIA COMMON LAW
`57. Answering paragraph 57 of the Complaint, except as expressly admitted
`in the preceding paragraphs hereof, Walmart denies every such allegation.
`58. Answering paragraph 58 of the Complaint, Defendant denies every such
`allegation.
`59. Answering paragraph 59 of the Complaint, Defendant denies every such
`allegation.
`60. Answering paragraph 60 of the Complaint, Defendant denies every such
`allegation.
`61. Answering paragraph 61 of the Complaint, Defendant denies every such
`allegation.
`62. Answering paragraph 62 of the Complaint, Defendant denies every such
`allegation.
`63. Answering paragraph 63 of the Complaint, Defendant denies every such
`allegation.
`64. Answering paragraph 64 of the Complaint, Defendant denies every such
`allegation.
`65. Answering paragraph 65 of the Complaint, Defendant denies every such
`allegation.
`66. Answering paragraph 66 of the Complaint, Defendant denies every such
`allegation.
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`PLAINTIFF’S PRAYER FOR RELIEF
`With respect to Patagonia’s prayer for relief, paragraphs 1-18, and inclusive of
`all subparagraphs therein, Walmart prays that the Court deny all such relief requested
`by Patagonia and dismiss this action in its entirety.
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`-8-
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`ANSWER OF WALMART INC.
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`Case 2:22-cv-07311-AB-RAO Document 17 Filed 12/12/22 Page 9 of 9 Page ID #:72
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`AFFIRMATIVE DEFENSES
`Without alleging that Walmart has the burden of proof on the following,
`Walmart states the following facts as separate and distinct affirmative defenses to
`Plaintiff’s Complaint.
`
`FIRST AFFIRMATIVE DEFENSE
`(Failure to State a Claim Upon Which Relief May Be Granted)
`Plaintiff’s claims are barred or limited, in whole or in part, because the
`1.
`Complaint and each purported cause of action alleged therein, does not state facts
`sufficient to constitute a cause of action under applicable law.
`SECOND AFFIRMATIVE DEFENSE
`(Fair Use)
`Defendant’s alleged usage, if any, of the image depicted on page 2, lines
`2.
`1-15 of Patagonia’s Complaint, constitutes fair use.
`THIRD AFFIRMATIVE DEFENSE
`(First Amendment)
`Defendant’s alleged usage, if any, of the image depicted on page 2, lines
`3.
`1-15 of Patagonia’s Complaint, constitutes a protected First Amendment expression as
`the product involved is an expressive work.
`RESERVATION
`Walmart has not knowingly or intentionally waived any applicable affirmative
`defenses and reserves the right to assert and rely on such affirmative defenses as may
`become available or apparent during discovery proceedings or prior to trial.
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`Dated: December 12, 2022
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`
`
`By: /s/ Konrad Gatien
`Konrad Gatien
`Keats Gatien, LLP
`
`Attorneys for Defendant
`WALMART INC.
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`-9-
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`ANSWER OF WALMART INC.
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