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`UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF NEW YORK
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`Plymouth Beef Co., Inc.,
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`Civ. Action No.1:20-cv-4029
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`Plaintiff,
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`-against-
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`Wonder Food Distributors, David Hamedan, Jack
`Hamedan, Nations Best Meat Wholesalers, Inc.,
`James Hyland and Guy Robinson,
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`ANSWER
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`Defendants.
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`Wonder Food Distributors, David Hamadani, and Jack Hamadani (the “Defendants”), through
`their attorneys, the Law Offices of Morris Fateha, as and for their answer to the Complaint (the
`“Complaint”) of Plaintiff, respectfully alleges as follows:
`And
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`AS AND FOR PRELIMINARY STATEMENT
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`1.
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`Denies knowledge and information contained in paragraph 1 of the Complaint.
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`AS AND FOR PARTIES
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`2.
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`3.
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`6.
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`7.
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`8.
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`Denies knowledge and information contained in paragraph 2 of the Complaint.
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`Admits the allegations contained in paragraph 3 of the Complaint.
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`Denies knowledge and information contained in paragraph 4 of the Complaint.
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`Denies allegations contained in paragraph 5 of the Complaint.
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`Denies knowledge and information contained in paragraph 6 of the Complaint.
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`Denies knowledge and information contained in paragraph 7 of the Complaint.
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`Denies knowledge and information contained in paragraph 8 of the Complaint.
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`AS AND FOR JURISDICTION AND VENUE
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`9.
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`Denies knowledge and information contained in paragraph 9 of the Complaint.
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`10.
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`Denies knowledge and information contained in paragraph 10 of the Complaint.
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 2 of 14
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`11.
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`Denies knowledge and information contained in paragraph 11 of the Complaint.
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`AS AND FOR BACKGROUND OF PLAINTIFF AND THE TRADEMARKS AT ISSUE
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`12. Denies the allegations contained in paragraph 12 of the Complaint.
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`13. Denies knowledge and information contained in paragraph 13 of the Complaint.
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`14. Denies knowledge and information contained in paragraph 14 of the Complaint.
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`15. Denies knowledge and information contained in paragraph 15 of the Complaint.
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`16. Denies knowledge and information contained in paragraph 16 of the Complaint.
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`17. Denies knowledge and information contained in paragraph 17 of the Complaint.
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`18. Denies knowledge and information contained in paragraph 18 of the Complaint.
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`19. Denies allegations contained in paragraph 19 of the Complaint.
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`AS AND FOR DEFENDANT’S UNLAWFUL ACTIVITIES
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`20. Denies allegations contained in paragraph 20 of the Complaint.
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`21. Denies the allegations contained in paragraph 21 of the Complaint.
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`22. Denies the allegations contained in paragraph 22 of the Complaint.
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`23. Denies allegations contained in paragraph 23 of the Complaint.
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`24. Denies allegations contained in paragraph 24 of the Complaint.
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`25. Denies the allegations contained in paragraph 25 of the Complaint.
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`26. Denies the allegations contained in paragraph 26 of the Complaint.
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`27. Denies the allegations contained in paragraph 27 of the Complaint.
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`28. Denies allegations contained in paragraph 28 of the Complaint.
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`29. Denies allegations contained in paragraph 29 of the Complaint.
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`30. Denies allegations contained in paragraph 30 of the Complaint.
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`31. Denies allegations contained in paragraph 31 of the Complaint.
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 3 of 14
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`32. Denies allegations contained in paragraph 32 of the Complaint.
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`33. Denies allegations contained in paragraph 33 of the Complaint.
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`34. Denies allegations contained in paragraph 34 of the Complaint.
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`AS AND FOR COUNT I
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`Federal Trademark Information Under 15 U.S.C §1114(1)
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`35.
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`Defendant repeats, reiterates and realleges each and every statement above, as if
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`fully set forth al length herein.
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`36. Denies allegations contained in paragraph 36 of the Complaint.
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`37. Denies allegations contained in paragraph 37 of the Complaint.
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`38. Denies allegations contained in paragraph 38 of the Complaint.
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`39. Denies allegations contained in paragraph 39 of the Complaint.
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`AS AND FOR COUNT II
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`Unfair Competition Under 15 U.S.C §1125(a)
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`40. Defendant repeats, reiterates and realleges each and every statement above, as if
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`fully set forth al length herein.
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`41. Denies allegations contained in paragraph 41 of the Complaint.
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`42. Denies allegations contained in paragraph 42 of the Complaint.
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`43. Denies allegations contained in paragraph 43 of the Complaint.
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`44. Denies allegations contained in paragraph 44 of the Complaint.
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`45. Denies allegations contained in paragraph 45of the Complaint.
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`46. Denies allegations contained in paragraph 46 of the Complaint.
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 4 of 14
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`AS AD FOR COUNT III
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`Deceptive Practices and Acts Under New York GBL §349
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`47. Defendant repeats, reiterates and realleges each and every statement above, as if
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`fully set forth al length herein.
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`48. Denies allegations contained in paragraph 48 of the Complaint.
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`49. Denies allegations contained in paragraph 49 of the Complaint.
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`AS AND FOR COUNT V
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`Common Law Trademark Infringement and Unfair Competition
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`50. Defendant repeats, reiterates and realleges each and every statement above, as if
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`fully set forth al length herein.
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`51. Denies allegations contained in paragraph 51 of the Complaint.
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`52. Denies allegations contained in paragraph 52 of the Complaint.
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`53. Denies allegations contained in paragraph 53 of the Complaint.
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`AS AND FOR COUNT VI
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`Common Law Tortious Interference With Economic Relations
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`54. Defendant repeats, reiterates and realleges each and every statement above, as if
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`fully set forth al length herein.
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`55. Denies allegations contained in paragraph 55 of the Complaint.
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`56. Denies allegations contained in paragraph 56 of the Complaint.
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 5 of 14
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`57. Denies allegations contained in paragraph 57 of the Complaint.
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`58. Denies allegations contained in paragraph 58 of the Complaint.
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`59. Denies allegations contained in paragraph 59 of the Complaint.
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`60. Denies allegations contained in paragraph 60 of the Complaint.
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`AS AND FOR PARYER FOR RELIEF
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`61. The allegations contained in the WHEREFORE clause of the Complaint
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`constitute legal conclusions to which no response is required and, to the extent a
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`response is required, the Defendant denies the allegations contained in the
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`WHEREFORE clause of the Complaint.
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`DEMAND FOR A JURY TRIAL
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`62. The Defendants hereby demand a trial by jury as to any and all issues raised in
`the Complaint and this Answer which are triable before a jury.
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`FIRST AFFIRMATIVE DEFENSE
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`63. The Complaint should be dismissed for failure to state a claim upon which relief
`can be granted pursuant to FRCP 12(b)(6) and for Plaintiff’s failure to properly
`serve the Summons and Complaint in the manner provided by the Federal Rules of
`Civil Procedure or the New York Civil Law and Practice Law and Rules.
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`SECOND AFFIRMATIVE DEFENSE
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`64. Plaintiff’s claims may be barred in whole or in part by waiver, estoppel and/or the
`doctrine of laches.
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`THIRD AFFIRMATIVE DEFENSE
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`65. Plaintiff’s claims may be illegal or in violation of public policy.
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`FOURTH AFFIRMATIVE DEFENSE
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`66. Plaintiff’s claims are barred in whole or in part by the doctrine of unclean hands.
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 6 of 14
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`FIFTH AFFIRMATIVE DEFENSE
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`67. Plaintiff’s claims are barred by the doctrine of privilege to engage in business
`competition.
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`SIXTH AFFIRMATIVE DEFENSE
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`68. Defendant has not directly infringed any claim of plaintiff’s trademarks and service
`marks, nor have it induced or contributed to the infringement of any claim of the
`referenced trademarks and service marks.
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`SEVENTH AFFIRMATIVE DEFENSE
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`69. Upon information and belief, Plaintiff’s claims for relief and prayer for damages
`are barred, in whole or in part, by failure of Plaintiff to comply with the marking
`and/or notice provisions of 35 U.S.C. § 287.
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`EIGHTH AFFIRMATIVE DEFENSE
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`70. Plaintiff's claims are barred, in whole or in part, because Plaintiff lacks standing to
`assert them.
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`NINTH AFFIRMATIVE DEFENSE
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`71. Defendant asserts that it has not willfully infringed the alleged trademarks and
`service marks.
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`TENTH AFFIRMATIVE DEFENSE
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`72. Plaintiff's claims for injunctive relief are barred because the Plaintiff has adequate
`remedies at law.
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`ELEVENTH AFFIRMATIVE DEFENSE
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`73. Plaintiff has suffered no damages and/or the damages claimed by Plaintiff are
`speculative and, therefore, are not recoverable.
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`TWELFTH AFFIRMATIVE DEFENSE
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`74. Plaintiff has not alleged facts, and defendant has not engaged in conduct, that
`entitles Plaintiff to an award of attorneys' fees.
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`THIRTEENTH AFFIRMATIVE DEFENSE
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`75. Plaintiff has not alleged facts, and Defendant has not engaged in conduct, that
`entitles Plaintiff to treble damages if requested.
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 7 of 14
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`FOURTEENTH AFFIRMATIVE DEFENSE
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`76. Defendant has never manufactured, imported, sold or offered for sale any products,
`or used any methods, that infringe any valid claims of alleged trademarks and
`service marks.
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`FIFTEENTH AFFIRMATIVE DEFENSE
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`77. Upon information and belief, the alleged trademarks and service marks is invalid,
`unenforceable and/or void for the following reasons:
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`78. Upon information and belief, the alleged trademarks and service marks was made
`by another person in this or a foreign country before the Plaintiff’s alleged use of
`the trademarks and service marks, and such other person had not abandoned,
`suppressed, or concealed it.
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`SIXTEENTH AFFIRMATIVE DEFENSE
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`79. The products sold by Defendant are not substantially the same as plaintiffs claimed
`trademarks and service marks.
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`SEVENTEENTH AFFIRMATIVE DEFENSE
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`80. Plaintiff’s claims for trademarks and service marks infringement are barred in
`whole or in part because an ordinary observer would not consider Defendant’s
`product to be substantially the same as the mark of the Plaintiffs’ product.
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`EIGHTEENTH AFFIRMATIVE DEFENSE
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`81. Plaintiff has no protectable Trademarks and service marks in its product or in the
`configuration of its product.
`82. The Trademarks and service marks of Plaintiff is not inherently distinctive, nor has
`it acquired secondary meaning.
`83. The Trademarks and service marks of Plaintiff is functional, and thus not
`protectable as Trademarks and service marks.
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`NINETEENTH AFFIRMATIVE DEFENSE
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`84. Defendant has acted at all times with innocent intent, and if plaintiff's rights have
`been violated, which defendant Denies, such violation was entirely innocent, and
`defendant did not intentionally, knowingly, recklessly, maliciously, or by gross or
`ordinary negligence participate in any such alleged violation of plaintiffs' rights.
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 8 of 14
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`TWENTIETH AFFIRMATIVE DEFENSE
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`85. Plaintiff’s alleged trademarks and service marks is invalid and unenforceable.
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`TWENTY FIRST AFFIRMATIVE DEFENSE
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`86. The alleged infringing products do not infringe upon the plaintiff’s alleged
`trademarks and service marks.
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`TWENTY SECOND AFFIRMATIVE DEFENSE
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`87. Plaintiff’s injuries are due solely, or in part, to a third-party over which the
`Defendant has no control.
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`TWENTY THIRD AFFIRMATIVE DEFENSE
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`88. The Defendant's conduct is privileged and justified as legitimate, lawful
`competition.
`TWENTY FORTH AFFIRMATIVE DEFENSE
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`89. The alleged trademarks and service marks design is functional.
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`TWENTY FIFTH AFFIRMATIVE DEFENSE
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`90. The alleged trademarks and service marks has been in common use by third parties
`unrelated to defendant.
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`TWENTY SIXTH AFFIRMATIVE DEFENSE
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`91. Plaintiff fails to state an adequate basis for injunctive relief.
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`TWENTY SEVENTH AFFIRMATIVE DEFENSE
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`92. Plaintiff's claims are barred, in whole or in part, as a result of Plaintiff's failure to
`include necessary parties, without which there cannot be complete relief.
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`TWENTY EIGHT AFFIRMATIVE DEFENSE
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`93. Plaintiff suffered no actual damage, financial or otherwise, as a result of the alleged
`actions complained of.
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`TWENTY NINTH AFFIRMATIVE DEFENSE
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`94. Defendants acted in good faith at all times.
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`THIRTIETH AFFIRMATIVE DEFENSE
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`95. Plaintiff's damages are barred, in whole or in part, because they are too remote and
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 9 of 14
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`speculative.
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`THIRTY FIRST AFFIRMATIVE DEFENSE
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`96. If the Plaintiff sustained any damages as alleged in the Verified Complaint, which
`allegations are expressly denied, then same were sustained because of the culpable
`conduct of parties or non-parties over whom defendants are not obligated to
`exercise supervision or control.
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`THIRTY SECOND AFFIRMATIVE DEFENSE
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`97. The damages suffered by Plaintiff, if any, were the direct and proximate result of
`the acts, omissions, or negligence of persons or entities other than the Defendant.
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`THIRTY THIRD AFFIRMATIVE DEFENSE
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`98. Plaintiff, or Plaintiff’s predecessor in interest, failed to protect and/or enforce its
`alleged rights, and/or engaged in conduct and activities sufficient to constitute
`waiver of any alleged breach of duty, negligent act, omission or any other conduct,
`if any, as set forth in the Complaint.
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`THIRTY FOURTH AFFIRMATIVE DEFENSE
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`99. Defendants reserve the right to assert other affirmative defenses as may be
`warranted as discovery proceeds as well as any counterclaims or cross claims.
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`THIRTY FIFTH AFFIRMATIVE DEFENSE
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`100.
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`The Complaint fails to state a claim upon which relief may be granted
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` THIRTY SIXTH AFFIRMATIVE DEFENSE
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`101.
`The Trademarks and service marks lack the originality required to obtain
`protection under the Trademarks and service marks laws of the United States.
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` THIRTY SEVENTH AFFIRMATIVE DEFENSE
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`102.
`Upon information and belief, Plaintiffs' trademarks and service marks
`registrations are invalid and unenforceable for failure to disclose other existing
`similar marks.
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`THIRTY EIGTH AFFIRMATIVE DEFENSE
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`103.
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`The products sold by Wonder Foods do not infringe upon any of the
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 10 of 14
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`plaintiffs' trademarks and service marks registrations in the trademarks and service
`marks.
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` THIRTY NINTH AFFIRMATIVE DEFENSE
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`104.
`Plaintiff is not the rightful owner of the trademarks and service
`marks/trademarks in question.
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`FORTIETH AFFIRMATIVE DEFENSE
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`105.
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`Upon information and belief, Plaintiff's claimed trademarks and service
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`marks are invalid and unenforceable because they are not original or creative.
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`FORTY FIRST AFFIRMATIVE DEFENSE
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`106.
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`Plaintiff's claims are barred, in whole or in part, as the claims were filed for
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`an improper purpose and lack a reasonable and good faith basis in fact.
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`FORTY SECOND AFFIRMATIVE DEFENSE
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`107.
`The products sold by Wonder Foods are not substantially the same as
`plaintiffs claimed trademarks and service marks.
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`FORTY THIRD AFFIRMATIVE DEFENSE
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`108.
`The plaintiffs’ claimed trademarks and service marks are invalid because
`the designs were in public use for more than one year before filing of plaintiffs'
`trademarks and service marks application.
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`FORTY FOURTH AFFIRMATIVE DEFENSE
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`109.
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`Plaintiffs are not entitled to attorneys' fees, statutory damages, costs or
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`expenses.
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`FORTY FIFTH AFFIRMATIVE DEFENSE
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`110.
`The trademarks and service marks registration asserted by Plaintiff is
`invalid, void and without legal effect.
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 11 of 14
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`FORTY SIXTH AFFIRMATIVE DEFENSE
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`111.
`The word that is subject to the trademarks and service marks registration
`asserted by Plaintiff constitutes un-trademarkable subject matter.
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`FORTY SEVENTH AFFIRMATIVE DEFENSE
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`112.
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`Plaintiff Asserted design cannot support trademarks and service marks by
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`reason of merger of idea and expression.
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`FORTY EIGTH AFFIRMATIVE DEFENSE
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`113.
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`Plaintiff has failed to mitigate its damages, if any.
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`FORTY NINTH AFFIRMATIVE DEFENSE
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`114.
`Plaintiff’s work in suit was unlawfully derived from antecedent designs
`without license or other permission from the prior design’s trademarks and service
`marks owner(s), such that the trademarks and service marks, if any, in Plaintiff’s
`work is invalid.
`115.
`Plaintiff's claims are barred, in whole or in part, because Plaintiff lacks
`standing to assert them.
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`FIFTIETH AFFIRMATIVE DEFENSE
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`116.
`Plaintiff’s claims are barred, in whole or in part, by the equitable doctrine
`of waiver.
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`FIFTY FIRST AFFIRMATIVE DEFENSE
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`117.
`Plaintiff's claims are barred, in whole or in part, by the equitable doctrine of
`unclean hands.
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`FIFTY SECOND AFFIRMATIVE DEFENSE
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`118.
`Plaintiff's claims for injunctive relief are barred because the Plaintiff has
`adequate remedies at law.
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`FIFTY THIRD AFFIRMATIVE DEFENSE
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`119.
`Plaintiff has not alleged facts, and defendants have not engaged in conduct,
`that entitles Plaintiff to an award of attorneys' fees.
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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 12 of 14
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`FIFTY FOURTH AFFIRMATIVE DEFENSE
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`120.
`Plaintiff has no protectable Trade Dress in its product or in the configuration
`of its product.
`121.
`The Trade Dress of Plaintiff is not inherently distinctive, nor has it acquired
`secondary meaning.
`122.
`The Trade Dress of Plaintiff is functional, and thus not protectable as Trade
`Dress.
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`FIFTY FIFTH AFFIRMATIVE DEFENSE
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`123. To the extent that Plaintiff has any protectable Trade Dress, Defendants products in
`question do not infringe that Trade Dress, because their sale, distribution, or advertising is
`not likely to cause confusion.
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`124. Defendants’ products are sold in distinctive packaging and contain clear markings to
`differentiate Defendants as the source. There can be no Trade Dress infringement as a matter
`of law
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`FIFTY SIXTH AFFIRMATIVE DEFENSE
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`125. Plaintiff’s alleged trade dress is invalid and unenforceable.
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`FIFTY SEVENTH AFFIRMATIVE DEFENSE
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`126. The alleged infringing products do not infringe upon the plaintiff’s alleged trade dress.
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`FIFTY EIGHT AFFIRMATIVE DEFENSE
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`127. Defendants have not directly infringed Plaintiff’s alleged Trade-Dress nor have they
`contributed to the infringement of Plaintiff’s alleged Trade Dress.
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`FIFTY NINTH AFFIRMATIVE DEFENSE
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`128. Plaintiff’s claims for trade dress infringement are barred in whole or in part because an
`ordinary observer would not consider Defendants’ product and/or packaging to be
`substantially the same as the design of the Plaintiffs’ product and/or packaging.
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`SIXTIETH AFFIRMATIVE DEFENSE
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`129. Plaintiff lacks personal jurisdiction to maintain this action over defendants.
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`SIXTY FIRST AFFIRMATIVE DEFENSE
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`130. Plaintiff's claims are barred, in whole or in part, as a result of Plaintiff's failure to include
`necessary parties, without which there cannot be complete relief.
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`SIXTY SECOND AFFIRMATIVE DEFENSE
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`131. The alleged infringing products are not substantially the same as plaintiff’s claimed
`copyright/trademarked products.
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`SIXTY THIRD AFFIRMATIVE DEFENSE
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`132. The Trademark registration asserted by Plaintiff is invalid, void and without legal effect.
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`SIXTY FOURTH AFFIRMATIVE DEFENSE
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`133. If the Plaintiff sustained any damages as alleged in the Verified Complaint, which
`allegations are expressly denied, then same were sustained because of the culpable conduct
`of parties or non-parties over whom defendants are not obligated to exercise supervision or
`control.
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` SIXTY FIFTH AFFIRMATIVE DEFENSE
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`134. The damages suffered by Plaintiff, if any, were the direct and proximate result of the acts,
`omissions, or negligence of persons or entities other than the Defendants.
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`SIXTY SIXTH AFFIRMATIVE DEFENSE
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`135. Plaintiff, or Plaintiff’s predecessor in interest, failed to protect and/or enforce its alleged
`rights, and/or engaged in conduct and activities sufficient to constitute waiver of any alleged
`breach of duty, negligent act, omission or any other conduct, if any, as set forth in the
`Complaint.
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`SIXTY SEVENTH AFFIRMATIVE DEFENSE
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`136. Defendants reserve the right to assert other affirmative defenses as may be warranted as
`discovery proceeds as well as any counterclaims or cross claims.
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`WHEREFORE, Defendants demands judgment dismissing the Complaint in its entirety,
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`and for such other and further relief as this Honorable Court deems just and proper.
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`Dated: Brooklyn, New York
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`August 4th, 2020
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`/S/ Morris Fateha
`___________________________________
`Morris Fateha
`Attorney for Defendant
`Law Offices of Morris Fateha
`911 Avenue U
`Brooklyn, New York 11223
`718-627-4600
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