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Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 1 of 14
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`UNITED STATES DISTRICT COURT FOR THE
`SOUTHERN DISTRICT OF NEW YORK
`----------------------------------------------------------------------X
`Plymouth Beef Co., Inc.,
`
`
`Civ. Action No.1:20-cv-4029
`
`
`
`
`Plaintiff,
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`
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`
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`-against-
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`
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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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`
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`
`
`ANSWER
`
`
`
`
`Defendants.
`----------------------------------------------------------------------X
`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
`
`AS AND FOR PRELIMINARY STATEMENT
`
`1.
`
`Denies knowledge and information contained in paragraph 1 of the Complaint.
`
`AS AND FOR PARTIES
`
`2.
`
`3.
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`4.
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`5.
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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.
`
`Admits the allegations contained in paragraph 3 of the Complaint.
`
`Denies knowledge and information contained in paragraph 4 of the Complaint.
`
`Denies allegations contained in paragraph 5 of the Complaint.
`
`Denies knowledge and information contained in paragraph 6 of the Complaint.
`
`Denies knowledge and information contained in paragraph 7 of the Complaint.
`
`Denies knowledge and information contained in paragraph 8 of the Complaint.
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`AS AND FOR JURISDICTION AND VENUE
`
`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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`

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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
`
`12. Denies the allegations contained in paragraph 12 of the Complaint.
`
`13. Denies knowledge and information contained in paragraph 13 of the Complaint.
`
`14. Denies knowledge and information contained in paragraph 14 of the Complaint.
`
`15. Denies knowledge and information contained in paragraph 15 of the Complaint.
`
`16. Denies knowledge and information contained in paragraph 16 of the Complaint.
`
`17. Denies knowledge and information contained in paragraph 17 of the Complaint.
`
`18. Denies knowledge and information contained in paragraph 18 of the Complaint.
`
`19. Denies allegations contained in paragraph 19 of the Complaint.
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`AS AND FOR DEFENDANT’S UNLAWFUL ACTIVITIES
`
`20. Denies allegations contained in paragraph 20 of the Complaint.
`
`21. Denies the allegations contained in paragraph 21 of the Complaint.
`
`22. Denies the allegations contained in paragraph 22 of the Complaint.
`
`23. Denies allegations contained in paragraph 23 of the Complaint.
`
`24. Denies allegations contained in paragraph 24 of the Complaint.
`
`25. Denies the allegations contained in paragraph 25 of the Complaint.
`
`26. Denies the allegations contained in paragraph 26 of the Complaint.
`
`27. Denies the allegations contained in paragraph 27 of the Complaint.
`
`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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`

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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.
`
`AS AND FOR COUNT I
`
`Federal Trademark Information Under 15 U.S.C §1114(1)
`
`35.
`
`Defendant repeats, reiterates and realleges each and every statement above, as if
`
`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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`
`
`
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`AS AND FOR COUNT II
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`Unfair Competition Under 15 U.S.C §1125(a)
`
`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.
`
`42. Denies allegations contained in paragraph 42 of the Complaint.
`
`43. Denies allegations contained in paragraph 43 of the Complaint.
`
`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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`

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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.
`
`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
`
`50. Defendant repeats, reiterates and realleges each and every statement above, as if
`
`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
`
`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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`

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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.
`
`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
`
`WHEREFORE clause of the Complaint.
`
`DEMAND FOR A JURY TRIAL
`
`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.
`
`FIRST AFFIRMATIVE DEFENSE
`
`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.
`
`
`SECOND AFFIRMATIVE DEFENSE
`
`64. Plaintiff’s claims may be barred in whole or in part by waiver, estoppel and/or the
`doctrine of laches.
`
`THIRD AFFIRMATIVE DEFENSE
`
`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
`
`67. Plaintiff’s claims are barred by the doctrine of privilege to engage in business
`competition.
`
`SIXTH AFFIRMATIVE DEFENSE
`
`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.
`
`SEVENTH AFFIRMATIVE DEFENSE
`
`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.
`
`
`
`EIGHTH AFFIRMATIVE DEFENSE
`
`70. Plaintiff's claims are barred, in whole or in part, because Plaintiff lacks standing to
`assert them.
`
`NINTH AFFIRMATIVE DEFENSE
`
`71. Defendant asserts that it has not willfully infringed the alleged trademarks and
`service marks.
`
`TENTH AFFIRMATIVE DEFENSE
`
`72. Plaintiff's claims for injunctive relief are barred because the Plaintiff has adequate
`remedies at law.
`
`
`
`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.
`
`TWELFTH AFFIRMATIVE DEFENSE
`
`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.
`
`FIFTEENTH AFFIRMATIVE DEFENSE
`
`77. Upon information and belief, the alleged trademarks and service marks is invalid,
`unenforceable and/or void for the following reasons:
`
`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.
`
`
`
`SIXTEENTH AFFIRMATIVE DEFENSE
`
`79. The products sold by Defendant are not substantially the same as plaintiffs claimed
`trademarks and service marks.
`
`SEVENTEENTH AFFIRMATIVE DEFENSE
`
`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.
`
`EIGHTEENTH AFFIRMATIVE DEFENSE
`
`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.
`
`NINETEENTH AFFIRMATIVE DEFENSE
`
`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.
`
`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.
`
`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.
`
`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.
`
`
`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.
`
`TWENTY SEVENTH AFFIRMATIVE DEFENSE
`
`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.
`
`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.
`
`
`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
`
`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.
`
`THIRTY SECOND AFFIRMATIVE DEFENSE
`
`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.
`
`THIRTY THIRD AFFIRMATIVE DEFENSE
`
`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.
`
`THIRTY FOURTH AFFIRMATIVE DEFENSE
`
`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.
`
`The Complaint fails to state a claim upon which relief may be granted
`
`
` 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.
`
`
` THIRTY SEVENTH AFFIRMATIVE DEFENSE
`
`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.
`
`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
`
`plaintiffs' trademarks and service marks registrations in the trademarks and service
`marks.
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` THIRTY NINTH AFFIRMATIVE DEFENSE
`
`
`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.
`
`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.
`
`
`FORTY FIRST AFFIRMATIVE DEFENSE
`
`106.
`
`Plaintiff's claims are barred, in whole or in part, as the claims were filed for
`
`an improper purpose and lack a reasonable and good faith basis in fact.
`
`
`FORTY SECOND AFFIRMATIVE DEFENSE
`
`107.
`The products sold by Wonder Foods are not substantially the same as
`plaintiffs claimed trademarks and service marks.
`
`
`FORTY THIRD AFFIRMATIVE DEFENSE
`
`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.
`
`
`FORTY FOURTH AFFIRMATIVE DEFENSE
`
`109.
`
`Plaintiffs are not entitled to attorneys' fees, statutory damages, costs or
`
`expenses.
`
`
`FORTY FIFTH AFFIRMATIVE DEFENSE
`
`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
`
`FORTY SIXTH AFFIRMATIVE DEFENSE
`
`111.
`The word that is subject to the trademarks and service marks registration
`asserted by Plaintiff constitutes un-trademarkable subject matter.
`
`
`FORTY SEVENTH AFFIRMATIVE DEFENSE
`
`112.
`
`Plaintiff Asserted design cannot support trademarks and service marks by
`
`reason of merger of idea and expression.
`
`FORTY EIGTH AFFIRMATIVE DEFENSE
`
`113.
`
`Plaintiff has failed to mitigate its damages, if any.
`
`
`FORTY NINTH AFFIRMATIVE DEFENSE
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`
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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.
`
`FIFTIETH AFFIRMATIVE DEFENSE
`
`116.
`Plaintiff’s claims are barred, in whole or in part, by the equitable doctrine
`of waiver.
`
`FIFTY FIRST AFFIRMATIVE DEFENSE
`
`117.
`Plaintiff's claims are barred, in whole or in part, by the equitable doctrine of
`unclean hands.
`
`FIFTY SECOND AFFIRMATIVE DEFENSE
`
`118.
`Plaintiff's claims for injunctive relief are barred because the Plaintiff has
`adequate remedies at law.
`
`FIFTY THIRD AFFIRMATIVE DEFENSE
`
`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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`

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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 12 of 14
`
`FIFTY FOURTH AFFIRMATIVE DEFENSE
`
`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.
`
`FIFTY FIFTH AFFIRMATIVE DEFENSE
`
`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.
`
`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
`
`FIFTY SIXTH AFFIRMATIVE DEFENSE
`
`125. Plaintiff’s alleged trade dress is invalid and unenforceable.
`
`FIFTY SEVENTH AFFIRMATIVE DEFENSE
`
`126. The alleged infringing products do not infringe upon the plaintiff’s alleged trade dress.
`
`FIFTY EIGHT AFFIRMATIVE DEFENSE
`
`127. Defendants have not directly infringed Plaintiff’s alleged Trade-Dress nor have they
`contributed to the infringement of Plaintiff’s alleged Trade Dress.
`
`FIFTY NINTH AFFIRMATIVE DEFENSE
`
`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.
`
`SIXTIETH AFFIRMATIVE DEFENSE
`
`129. Plaintiff lacks personal jurisdiction to maintain this action over defendants.
`
`SIXTY FIRST AFFIRMATIVE DEFENSE
`
`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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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 13 of 14
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`SIXTY SECOND AFFIRMATIVE DEFENSE
`
`131. The alleged infringing products are not substantially the same as plaintiff’s claimed
`copyright/trademarked products.
`
`SIXTY THIRD AFFIRMATIVE DEFENSE
`
`132. The Trademark registration asserted by Plaintiff is invalid, void and without legal effect.
`
`SIXTY FOURTH AFFIRMATIVE DEFENSE
`
`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.
`
` SIXTY FIFTH AFFIRMATIVE DEFENSE
`
`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.
`
`SIXTY SIXTH AFFIRMATIVE DEFENSE
`
`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.
`
`SIXTY SEVENTH AFFIRMATIVE DEFENSE
`
`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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`

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`Case 1:20-cv-04029-PGG Document 27 Filed 08/04/20 Page 14 of 14
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`WHEREFORE, Defendants demands judgment dismissing the Complaint in its entirety,
`
`and for such other and further relief as this Honorable Court deems just and proper.
`
`Dated: Brooklyn, New York
`
`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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