`
`UNITED STATES DISTRICT COURT
`DISTRICT COURT OF COLORADO
`
`
`PREDATOR INTERNATIONAL, INC.,
`a Colorado corporation,
`
`
`
`
`
`
`
`
`
`Plaintiff/Counter-Defendant,
`
`
`
`
`
`
`vs.
`
`
`
`
`
`
`
`
`
`
`
`GAMO OUTDOOR USA, INC.,
`
`a Florida corporation, and
`
`INDUSTRIALS EL GAMO, S.A.,
`a Spanish corporation,
`
`
`
`
`
`
`
`
`
`Defendants/Counter-Plaintiff.
`
`
`)
`)
`)
`)
`)
`) Case No. 09 cv 00970-PAB-KMT
`)
`) DEMAND FOR JURY TRIAL
`)
`)
`)
`)
`)
`
`
`DEFENDANT GAMO OUTDOOR USA, INC.’S and DEFENDANT INDUSTRIAS EL
`GAMO S.A. n/k/a GAMO OUTDOOR S.L.’S
`ANSWER AND AFFIRMATIVE DEFENSES TO
`FOURTH AMENDED COMPLAINT AND COUNTERCLAIMS
`
`
`
`
`
`Defendants, GAMO OUTDOOR USA, INC. (“GAMO USA”) and INDUSTRIAS EL
`
`GAMO S.A., now known as, GAMO OUTDOOR S.L., a Spanish corporation (“GAMO
`
`SPAIN”) (hereinafter collectively referred to as “GAMO”), by counsel, SWANSON,
`
`MARTIN & BELL, LLP and PATTON BOGGS LLP, for their Answer and Affirmative
`
`Defenses to Plaintiff PREDATOR INTERNATIONAL, INC.‟s (“PREDATOR”) Fourth
`
`Amended Complaint (“the Complaint”), state as follows:
`
`THE PARTIES
`
`
`
`1.
`
`Plaintiff Predator International, Inc. (“Predator”) is a corporation organized
`
`under the laws of the State of Colorado having a principal place of business at 4401 S.
`
`Broadway, Suite 201, Englewood, Colorado, 80113.
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`
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 2 of 29
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`
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`ANSWER: GAMO is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in Paragraph 1 of the Complaint
`
`and therefore denies the same.
`
`
`
`2.
`
`Upon information and belief, Defendant Gamo Outdoor USA, Inc.
`
`(“Gamo”) is a corporation organized under the laws of the State of Florida having a
`
`principal place of business at 3911 SW 47th Avenue, Suite 194, Fort Lauderdale,
`
`Florida, 33314.
`
`
`
`ANSWER: GAMO admits the allegations contained in Paragraph 2 of the
`
`Complaint.
`
`
`
`3.
`
`Upon information and belief, Defendant Industrias El Gamo, S.A. is a
`
`corporation organized and existing under the laws of Spain having a principal place of
`
`business at Santa Creu Calafell KM 10, Sant Boi de Llobregat, Barcelona, 08830.
`
`Defendants are hereinafter collectively referred to as “Gamo.”
`
`
`
`ANSWER: GAMO admits
`
`that
`
`INDUSTRIAS EL GAMO S.A. was
`
`extinguished and merged into GAMO OUTDOOR S.L., a Spanish corporation, in
`
`2009. GAMO OUTDOOR S.L. has a principal place of business at Santa Creu
`
`Calafell KM 10, Sant Boi de Llobregat, Barcelona, 08830.
`
`4.
`
`Predator is in the business of manufacturing, distributing, and selling high
`
`performance air gun pellets in interstate commerce and internationally.
`
`
`
`ANSWER: GAMO is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in Paragraph 4 of the Complaint
`
`and therefore denies the same.
`
`
`
`2
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`
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`5.
`
`Upon information and belief, Defendants are in the business of designing,
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`manufacturing, distributing, and selling airguns and airgun pellets in interstate
`
`commerce and internationally.
`
`
`
`ANSWER: GAMO admits that GAMO SPAIN is in the business of
`
`manufacturing, distributing and selling airguns and airgun pellets internationally.
`
`GAMO admits that GAMO USA it is in the business of distributing and selling
`
`airguns and airgun pellets in interstate commerce. GAMO denies the remaining
`
`allegations contained in Paragraph 5 of the Complaint.
`
`JURISDICTION
`
`
`
`6.
`
`This action arises under the Lanham Act, 15 U.S.C. §1051, et seq., the
`
`Copyright Act, Colorado Consumer Protection Act, C.R.S. §6-1-101, et seq., and the
`
`principles of common law in the State of Colorado and pertaining to trade dress
`
`infringement, unjust enrichment, and unfair competition.
`
`
`
`ANSWER: GAMO admits that this action arises under the Lanham Act, 15
`
`U.S.C. §1051, et seq., and the Copyright Act, but denies that the claims asserted
`
`in the Fourth Amended Complaint are valid and denies the remaining allegations
`
`contained in Paragraph 6 of the Complaint.
`
`
`
`7.
`
`This is a civil action for federal trade dress infringement, copyright
`
`infringement, violation of the Colorado Consumer Protection Act, and common law
`
`unfair competition, trade dress infringement, and unjust enrichment.
`
`
`
`ANSWER: GAMO admits that this is a civil action for federal trade dress
`
`infringement and copyright infringement, but denies that the claims asserted in
`
`
`
`3
`
`
`
`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 4 of 29
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`the Complaint are valid and denies the remaining allegations contained in
`
`Paragraph 7 of the Complaint.
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`
`
`8.
`
`This Court has jurisdiction over the counts of this action based on 28
`
`U.S.C. §§1331, 1338, and 1367.
`
`
`
`ANSWER: GAMO admits the allegations contained in Paragraph 8 of the
`
`Complaint.
`
`
`
`9.
`
`Upon information and belief, this Court has personal jurisdiction over the
`
`Defendants by virtue of the Defendants‟ acts of offering products for sale in this District.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 9 of the
`
`Complaint.
`
`
`
`
`
`10. Venue is proper in this District pursuant to 28 U.S.C. §1391(b) and (c).
`
`ANSWER: GAMO denies the allegations contained in Paragraph 10 of the
`
`Complaint.
`
`FACTUAL BACKGROUND OF CLAIMS
`
`
`
`11. Since at least as early as 2002, Predator has been manufacturing,
`
`distributing, and selling a polymer tipped airgun pellet in the United States and
`
`internationally. At that time, the pellets were called Predator Premium Hunting Pellets.
`
`Since 2007, they‟ve been sold under the mark POLYMAG. See POLYMAG product
`
`image and description attached hereto as Exhibit 1.
`
`
`
`ANSWER: GAMO is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in Paragraph 11 of the
`
`Complaint and therefore denies the same.
`
`
`
`4
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`
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`17.[sic]1 On its website and in its brochure, the Predator describes the POLYMAG
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`as follows: “The Predator PolymagTM (polymer tip pellet) was designed specifically to
`
`be the most effective and efficient airgun hunting ammunition available. See Exhibit 1.
`
`ANSWER: GAMO admits a document labeled Exhibit 1 is attached to the
`
`Complaint and states that the document speaks for itself. GAMO otherwise
`
`denies the allegations contained in Paragraph 17 of the Complaint.
`
`
`
`18. On its website, Predator also describes the POLYMAG as follows:
`
`Experience better accuracy, deeper penetration and higher velocity with
`Predator‟s revolutionary new hunting PolymagsTM (polymer tip pellet).
`Hollow point design creates instant expansion on impact allowing for the
`taking of larger animals. Hard polymer tip provides excellent flight
`characteristics. See Exhibit 1.
`
`ANSWER: GAMO admits a document labeled Exhibit 1 is attached to the
`
`Complaint and states that the document speaks for itself. GAMO otherwise
`
`denies the allegations contained in Paragraph 18 of the Complaint.
`
`
`
`19. Elsewhere on Predator‟s website, the features of the POLYMAG are
`
`described by Predator as follows:
`
`The Predator PolymagTM (polymer tip pellet) features a traditional hollow
`point design in a standard airgun application. The aerodynamic shape
`and hard polymer tip provide excellent flight characteristics. Other
`features include:
`
`
` Higher Velocity & Flat Trajectory
` Very Accurate and Efficient
` Allows for Deeper Penetration
`
`Instant Expansion on Impact
` Light Weight (.177 cal weighs 8gr., 22 weighs 16 gr)
`
`
`
`
`1 GAMO notes that paragraphs 12 through and including 16 are omitted from Predator‟s Fourth Amended
`Complaint.
`
`
`
`5
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`
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`ANSWER: GAMO is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in Paragraph 19 of the
`
`Complaint and therefore denies the same.
`
`
`
`20. Predator is the author and owner of all right, title, and interest to the rights
`
`afforded by the U.S. Copyright Act of the product description and ad copy described
`
`above and found on its website at www.predatorpellets.com. See Exhibit 1. The
`
`product description and ad copy described above will hereinafter be referred to as the
`
`“Copyrighted Work.”
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 20 of the
`
`Complaint.
`
`
`
`21.
`
`The Copyrighted is an original work of authorship and was created in may
`
`2000. It was first published on Predator‟s website located at www.predatorpellets.com
`
`in June 2000.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 21 of the
`
`Complaint.
`
`22. Predator‟s brochure was created in 2006. This brochure was first
`
`distributed at the Shot Show in the beginning of 2007. It has also been distributed at
`
`the 2008 and 2009 Shot Shows.
`
`ANSWER: GAMO is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in Paragraph 22 of the
`
`Complaint and therefore denies the same.
`
`
`
`23. Predator has complied in all respects with 17 U.S.C. §§ 101 et seq., and
`
`secured the exclusive rights and privileges in and to the copyright of the Copyrighted
`
`
`
`6
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`
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`Work. The Copyrighted Work is the subject of U.S. Copyright registration No. TX-6-
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`913-217, issued on April 16, 2009.
`
`
`
`ANSWER: GAMO admits that Predator has attached a copy of U.S.
`
`Copyright Registration No. TX-6-913-217, issued on April 16, 2009, as Exhibit 4 to
`
`the Complaint, and states that the document speaks for itself. GAMO denies the
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`remaining allegations contained in Paragraph 23 of the Complaint.
`
`
`
`24.
`
`The POLYMAG features a distinctive, nonfunctional red colored tip that is
`
`well known to consumers and has become associated with Predator and the
`
`POLYMAG. This red tip will hereinafter be referred to as the “POLYMAG trade dress.”
`
`ANSWER: GAMO denies the allegations contained in Paragraph 24 of the
`
`Complaint.
`
`25. Predator has expended considerable resources
`
`in promoting
`
`the
`
`POLYMAG and the POLYMAG trade dress through various media, including trade
`
`publications, trade shows, brochures, and on the internet.
`
`ANSWER: GAMO denies the allegations contained in Paragraph 25 of the
`
`Complaint.
`
`26.
`
`The POLYMAG is available for sale at sporting goods retailers such as
`
`Cabelas, Pyramydair, Gander Mountain, Bass Pro Shops, and Morgan Dees. A tin of
`
`200 retails for $15.99 or $16.99 depending on the caliber.
`
`ANSWER: GAMO is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in Paragraph 26 of the
`
`Complaint and therefore denies the same.
`
`
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`7
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`27.
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`In the past three years, annual sales of the POLYMAG have jumped from
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`$100,000 to $365,000.
`
`ANSWER: GAMO is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in Paragraph 27 of the
`
`Complaint and therefore denies the same.
`
`28.
`
`In 2007, Predator created a five-year plan for growth that leads to gross
`
`profits of $500,000 in 2010 based on its plans to consolidate manufacturing and
`
`increase production. This increase of production would allow Predator to introduce the
`
`POLYMAG to retailers that they had previously been unable to use because of their
`
`limited production capacity.
`
`ANSWER: GAMO is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in Paragraph 28 of the
`
`Complaint and therefore denies the same.
`
`29.
`
`In furtherance of five year plan, Predator spent most of 2008 adding
`
`tipping machines in Hungary and increasing production in the Czech Republic. It is now
`
`poised for a new surge of growth.
`
`ANSWER: GAMO is without knowledge or information sufficient to form a
`
`belief as to the truth of the allegations contained in Paragraph 29 of the
`
`Complaint and therefore denies the same.
`
`30. By reason of the adoption and longstanding continuous use of the
`
`POLYMAG trade dress, the POLYMAG trade dress has acquired special and particular
`
`significance and very valuable goodwill as identifying the POLYMAG, so that when
`
`
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`8
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`
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 9 of 29
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`members of the public in the United States and elsewhere see or hear it, they
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`automatically think of Predator.
`
`ANSWER: GAMO denies the allegations contained in Paragraph 30 of the
`
`Complaint.
`
`31. Consequently, through such usage and recognition, the POLYMAG trade
`
`dress is protected under the laws of the United States and numerous other countries,
`
`granting Predator the right to prevent others from using any mark, trade dress, or other
`
`designation which is confusingly similar thereo.
`
`ANSWER: GAMO denies the allegations contained in Paragraph 31 of the
`
`Complaint.
`
`32. On November 13, 2008, Gamo, the largest air gun manufacturer in
`
`Europe, issued a press release announcing its expected release of the RED FIRE
`
`airgun pellet. The RED FIRE looks almost identical to the POLYMAG, and specifically,
`
`features the POLYMAG‟s non-functional, distinctive red colored tip. It also weighs the
`
`exact same as the POLYMAG, even though the grain weight of an air gun pellet such as
`
`the RED FIRE could range anywhere from 6.5 gr. to 10.5 gr. To announce its newest
`
`product to the world, Gamo said the following regarding the RED FIRE:
`
`You will experience better accuracy, deeper penetration and higher
`velocity with these revolutionary new hunting polymer tipped pellets. The
`hollow point design creates instant expansion on impact allowing for the
`taking of larger animals. The hard polymer tip provides excellent flight
`characteristics as well. This will be one of the air industries signature
`pellets.
`
`The Red FireTM is designed specifically to be the most effective and
`efficient air gun hunting ammunition available.
`
`Specifications:
`
`
`
`
`9
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`
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`Higher Velocity & Flat Trajectory
`Accurate and Efficient
`Allows for Deeper Penetration
`Instant Expansion of Impact
`Light Weight
`.177 cal weighs 8gr., .22 weights 16gr
`
`See Exhibit 2 attached for Gamo Press Release.
`
`
`ANSWER: GAMO admits a document labeled Exhibit 2 is attached to the
`
`Complaint and states that the document speaks for itself. GAMO denies the
`
`remaining allegations contained in Paragraph 32 of the Complaint.
`
`33. Predator immediately contacted Gamo informing Gamo that the RED
`
`FIRE appeared to be a direct copy of the POLYMAG. Gamo denied any infringement.
`
`ANSWER: GAMO admits Predator contacted GAMO prior to the RED FIRE
`
`being commercially available, prior to its initiation of this lawsuit and prior to
`
`Predator having seen the RED FIRE. GAMO denies the remaining allegations
`
`contained in Paragraph 33 of the Complaint.
`
`34. Gamo further showed the RED FIRE in January 2009 at the annual Shot
`
`Show, where Predator also had a booth featuring the POLYMAG. The RED FIRE was
`
`not available for purchase at the Shot Show.
`
`ANSWER: GAMO admits that GAMO showed the RED FIRE in January
`
`2009 at the annual Shot Show, and that the RED FIRE was not available for
`
`purchase at the Shot Show. GAMO is without knowledge or information sufficient
`
`to form a belief as to the truth of the remaining allegations contained in
`
`Paragraph 34 of the Complaint and therefore denies the same.
`
`
`
`10
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`
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`35. Sales of the RED FIRE in the United States have just recently
`
`commenced. A tin of 150 pellets retails for $9.99. The RED FIRE and POLYMAG are
`
`both sold by Cabelas.
`
`ANSWER: GAMO admits that sales of the RED FIRE® commenced in the
`
`United States in April 2009. GAMO denies the allegations contained in the
`
`second sentence of Paragraph 31 of the Complaint. GAMO is without knowledge
`
`or information sufficient to form a belief as to the third sentence in Paragraph 34
`
`of the Complaint.
`
`36. Gamo‟s website located at www.gamousa.com , describes the RED FIRE
`
`as follows:
`
`Experience better accuracy, deeper penetration and higher velocity with
`GAMO‟s revolutionary new hunting Red Fire TM (polymer tip pellet). The
`hollow point design creates instant expansion on impact allowing for the
`taking of larger animals. The hard polymer tip provides excellent flight
`characteristics as well.
`
`
`
`
`
`
`
`
`Higher Velocity & Flat Trajectory
`Accurate and Efficient
`Allows for Deeper Penetration
`Instant Expansion on Impact
`Light Weight
`
`
`See Red Fire image and product description attached hereto at Exhibit 3.
`
`
`ANSWER: GAMO admits a document labeled Exhibit 3 is attached to the
`
`Complaint and states that the document speaks for itself. GAMO otherwise
`
`denies the allegations contained in Paragraph 36 of the Complaint.
`
`37. Moreover, even after the very short period of time during which the RED
`
`FIRE has been commercially available, Predator has become aware of numerous
`
`instances of actual confusion between the two products. Consumers are also reporting
`
`
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`11
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 12 of 29
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`the inferior quality of Gamo‟s RED FIRE compared to the POLYMAG, which leads to
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`further damage of Predator‟s goodwill and reputation.
`
`
`
`ANSWER: GAMO specifically denies
`
`the allegation contained
`
`in
`
`Paragraph 37 of the Complaint that there have been “numerous instances of
`
`actual confusion between the two products”. GAMO further specifically denies
`
`that there has been damage to Predator’s goodwill and reputation. GAMO is
`
`without knowledge or information sufficient to form a belief as to the truth of the
`
`remaining allegations contained in Paragraph 37 of the Complaint and therefore
`
`denies the same.
`
`
`
`38. Despite Predator‟s notice to Gamo of Gamo‟s blatant copying of
`
`Predator‟s Copyrighted Work and the POLYMAG trade dress, Gamo continues to sell
`
`the RED FIRE, causing damage and irreparable harm to Predator.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 38 of the
`
`Complaint.
`
`FIRST CLAIM:
`TRADE DRESS INFRINGEMENT UNDER 15 U.S.C. 1125(a)
`
`39. Predator incorporates by reference all of the averments set forth in
`
`
`
`Paragraphs 1 through 38, inclusive, with the same effect as though fully rewritten in this
`
`Count for trade dress infringement by Defendants.
`
`
`
`ANSWER:
`
`In the event that a response to Paragraph 39 of the Complaint
`
`is required, GAMO repeats, re-alleges and
`
`incorporates by reference
`
`its
`
`responses to Paragraph 1-38 as though set forth fully herein. To the extent, if
`
`any, that the foregoing does not respond to any facet of the allegations of
`
`
`
`12
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`
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`Paragraph 39 of the Complaint, GAMO denies the remaining allegation of
`
`Paragraph 39.
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`
`
`40. By virtue of the facts herein averred, Gamo has been and is engaging in
`
`trade dress infringement by manufacturing, packaging, and selling the RED FIRE in
`
`violation of 15 U.S.C. §1125(a) in a manner likely to cause confusion, or to cause
`
`mistake, or to deceive consumers.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 40 of the
`
`Complaint.
`
`
`
`41.
`
`To identify the POLYMAG, Predator has extensively advertised, and
`
`caused to be advertised, throughout the United States the POLYMAG with the
`
`POLYMAG trade dress. As a result of marketing manufacturing, and sales of the
`
`POLYMAG for many years using the non-functional POLYMAG trade dress, the
`
`POLYMAG trade dress has become distinctive and/or has obtained secondary meaning
`
`as a means to identify the source of the POLYMAG.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 41 of the
`
`Complaint.
`
`
`
`42. Predator is the owner of the POLYMAG trade dress and was the first to
`
`adopt and use, or cause to be used, the POLYMAG trade dress in connection with air
`
`gun pellets.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 42 of the
`
`Complaint.
`
`
`
`43. By virtue of the widespread use and recognition of the POLYMAG trade
`
`dress by the public, the POLYMAG has come to be, and now is, well and favorably
`
`
`
`13
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`
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`known to the public as a high quality, unique good sold and provided exclusively by
`
`Predator.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 43 of the
`
`Complaint.
`
`
`
`44. Use of the POLYMAG trade dress in conjunction with the POLYMAG is
`
`distinctive and represents a highly valuable source indicator for consumers who are
`
`seeking in purchase and consume the POLYMAG. Plaintiff has thereby built up and
`
`now owns valuable goodwill in the POLYMAG trade dress.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 44 of the
`
`Complaint.
`
`
`
`45. Defendants have been and continue
`
`to unfairly
`
`trade upon and
`
`appropriate the longstanding prestige, reputation, notoriety, and goodwill of Predator as
`
`represented by the POLYMAG trade dress, and are thereby deceiving the public.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 45 of the
`
`Complaint.
`
`
`
`46. Upon information and belief, Defendants‟ infringing use of the POLYMAG
`
`trade dress has been deliberate and willful and has been committed with the intent to
`
`cause confusion and mistake, and to deceive and defraud the public into believing that
`
`their goods are affiliated with, sponsored by, or in some manner associated with
`
`Predator.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 46 of the
`
`Complaint.
`
`
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`14
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`
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`47. Predator has been and will continue to be damaged and irreparably
`
`harmed by Defendants‟ actions of trade dress infringement unless Gamo‟s trade dress
`
`infringement is enjoined preliminary and permanently by this Court.
`
`
`
`ANSWER: GAMO denies the allegations contained in Paragraph 47 of the
`
`Complaint.
`
`SECOND CLAIM:
`COPYRIGHT INFRINGEMENT
`
`48. Predator incorporates by reference all of the averment set forth in
`
`
`
`Paragraphs 1 through 47, inclusive, with the same effect as though fully rewritten in this
`
`Count for copyright infringement by Defendants.
`
`
`
`ANSWER:
`
`In the event that a response to Paragraph 48 of the Complaint
`
`is required, GAMO repeats, re-alleges and
`
`incorporates by reference
`
`its
`
`responses to Paragraph 1-47 as though set forth fully herein. To the extent, if
`
`any, that the foregoing does not respond to any facet of the allegations of
`
`Paragraph 48 of the Complaint, GAMO denies the remaining allegation of
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`Paragraph 48.
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`49. By virtue of the facts herein averred, Gamo has been and continues to
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`infringe Predator‟s exclusive rights to the Copyrighted Work granted by 17 U.S.C. §106.
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`Through Gamo‟s use of the Copyrighted Work to sell the RED FIRE in violation of 17
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`U.S.C. §501.
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`ANSWER: GAMO denies the allegations contained in Paragraph 49 of the
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`Complaint.
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`15
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 16 of 29
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`50. Predator is the owner of all title, right, and interest to the Copyrighted
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`Work and has obtained U.S. Copyright Registration No. TX-6-913-217, issued on April
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`16, 2009. See Exhibit 4.
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`ANSWER: GAMO admits a document labeled Exhibit 4 is attached to the
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`Complaint and states that the document speaks for itself. GAMO denies the
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`remaining allegations contained in Paragraph 50 of the Complaint.
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`51. Predator has not granted Gamo a license or any right to copy, reproduce,
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`distribute, publish, exploit, or use the Copyrighted Work in any manner.
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`ANSWER: GAMO admits that Predator has not granted GAMO a license.
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`GAMO denies the remaining allegations contained in Paragraph 51 of the
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`Complaint.
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`52. Gamo has unlawfully and willfully copied the Copyrighted Work to use in
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`its own press release and product description for the RED FIRE.
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`
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`ANSWER: GAMO denies the allegations contained in Paragraph 52 of the
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`Complaint.
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`53. Predator has been and continues to be damaged by Gamo‟s infringement
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`of the Copyrighted Work.
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`ANSWER: GAMO denies the allegations contained in Paragraph 53 of the
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`Complaint.
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`54. Predator is suffering, and will continue to suffer, irreparable harm from
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`Gamo‟s infringement of the Copyrighted Work unless Gamo‟s copyright infringement is
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`enjoined preliminarily and permanently by this Court.
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`16
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 17 of 29
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`ANSWER: GAMO denies the allegations contained in Paragraph 54 of the
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`Complaint.
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`THIRD CLAIM:
`VIOLATION OF COLORADO’S CONSUMER PROTECTION ACT,
`C.R.S. §6-1-101 et seq.
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`GAMO makes no response to the allegations contained in the Third Claim of the
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`
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`Complaint, as said claim is subject to the Motion to Dismiss filed simultaneously
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`herewith. In the event that a response is required, GAMO denies the allegations
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`contained in the Third Claim of the Complaint.
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`FOURTH CLAIM
`UNJUST ENRICHMENT
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`GAMO makes no response to the allegations contained in the Fourth Claim of
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`
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`the Complaint, as said claim is subject to the Motion to Dismiss filed simultaneously
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`herewith. In the event that a response is required, GAMO denies the allegations
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`contained in the Fourth Claim of the Complaint.
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`FIFTH CLAIM
`COMMON LAW UNFAIR COMPETITION
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`GAMO makes no response to the allegations contained in the Fifth Claim of the
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`Complaint, as said claim is subject to the Motion to Dismiss filed simultaneously
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`herewith. In the event that a response is required, GAMO denies the allegations
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`contained in the Fifth Claim of the Complaint.
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`AFFIRMATIVE DEFENSES
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`First Affirmative Defense
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`
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`PREDATOR INTERNATIONAL, INC. fails to state a claim upon which relief
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`really granted against GAMO.
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`17
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 18 of 29
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`Second Affirmative Defense
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`
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`PREDATOR INTERNATIONAL, INC.‟s claims are barred by the equitable
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`doctrines of consent, waiver, unclean hands and laches.
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`Third Affirmative Defense
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`GAMO does not infringe the alleged trademarks and is not subject to liability for
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`infringement of the alleged marks.
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`Fourth Affirmative Defense
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`There is no likelihood of confusion between the alleged marks and the asserted
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`use of the alleged marks. PREDATOR INTERNATIONAL, INC. has not pled any facts,
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`such as actual confusion to substantiate likelihood of confusion and GAMO is not aware
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`of any consumer confusion.
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`Fifth Affirmative Defense
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`At all times, GAMO‟s conduct was lawful, justified, reasonable, in good faith, and
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`with innocent intent based upon the facts known at the time it acted, thereby precluding
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`PREDATOR INTERNATIONAL, INC., even if it prevails, from recovering treble
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`damages, attorneys‟ fees and/or costs, or any other enhanced damages.
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`Sixth Affirmative Defense
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`The alleged trade dress of the POLYMAG is not famous.
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`Seventh Affirmative Defense
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`The alleged trade dress of the POLYMAG is functional.
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`Eighth Affirmative Defense
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`The alleged is trade dress of the POLYMAG has not acquired secondary
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`meaning and is not distinctive.
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`
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`18
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 19 of 29
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`Ninth Affirmative Defense
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`The alleged trade dress of the POLYMAG is generic.
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`Tenth Affirmative Defense
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`PREDATOR INTERNATIONAL, INC.‟s claims are barred by the Fair Use
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`Doctrine.
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`Eleventh Affirmative Defense
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`PREDATOR INTERNATIONAL, INC.‟s claims are barred by the Merger Doctrine.
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`Twelfth Affirmative Defense
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`PREDATOR INTERNATIONAL, INC. lacks standing to bring a claim for patent
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`infringement.
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`Thirteenth Affirmative Defense
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`Any damages assignable to PREDATOR INTERNATIONAL, INC. are limited
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`under 17 U.S.C. § 504(b), (c) and 17 U.S.C. § 505.
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`Fourteenth Affirmative Defense
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`
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`PREDATOR INTERNATIONAL, INC. failed to perform the necessary due
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`diligence on patent ownership prior to initiating this lawsuit.
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`WHEREFORE, Defendants, GAMO OUTDOOR USA, INC. and INDUSTRIAS EL
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`GAMO S.A., now known as, GAMO OUTDOOR S.L., respectfully request this Court
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`dismiss the Fourth Amended Complaint at Plaintiff‟s cost and enter a judgment as
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`follows:
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`(a) That U.S. Copyright Registration No. TX-6-913-217 is invalid and
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`unenforceable.
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`19
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 20 of 29
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`(b) That U.S. Copyright Registration No. TX-6-913-217 has not been and
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`is not infringed by GAMO.
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`(c) The alleged Polymag Trade Dress is unprotectable.
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`(d) GAMO has not and is not infringing any intellectual property in
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`Predator‟s POLYMAG pellets.
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`(e) That GAMO is awarded its costs and attorneys‟ fees associated with
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`the defense of this matter.
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`(f) That GAMO is granted all other relief this Honorable Court deems just
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`and appropriate.
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`GAMO’S COUNTERCLAIM FOR DECLARATORY JUDGMENT
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`
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`Defendants, GAMO OUTDOOR USA, INC. (“GAMO USA”) and INDUSTRIAS EL
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`GAMO S.A., now known as, GAMO OUTDOOR S.L., a Spanish corporation (“GAMO
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`SPAIN”) (hereinafter collectively referred to as “GAMO”), by counsel SWANSON,
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`MARTIN & BELL, LLP and PATTON BOGGS LLP, pursuant to Rule 13(c) of the
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`Federal Rules of Civil Procedure, hereby assert their counterclaims for declaratory
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`judgment on patent infringement, trade dress infringement and copyright infringement
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`against Plaintiff/Counter-Defendant PREDATOR INTERNATIONAL, INC.‟s (“Predator”).
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`FACTUAL BACKGROUND
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`1.
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`GAMO is in the business of manufacturing, distributing and selling airguns
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`and airgun pellets internationally.
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`2.
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`Among other airgun and airgun pellet products, GAMO SPAIN
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`manufacturers, distributes and sells internationally an airgun pellet with a polymer tip
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`under the federally registered trademark RED FIRE®, Registration No. 3632918 (“RED
`
`
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`20
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 21 of 29
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`FIRE® pellets”). GAMO USA distributes and sells the RED FIRE® within the United
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`States. GAMO‟s RED FIRE® pellets feature a red tip and involve a unique
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`manufacturing process, which is the subject of international patent rights and a pending
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`U.S. patent application.
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`3.
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`In approximately 2000, Thomas May (“May”) and Lee Phillips (“Phillips”)
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`formed Predator. Predator is also in the business of manufacturing, distributing and
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`selling airgun pellets.
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`4.
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`Predator alleges that it sells an airgun pellet with a hard polymer ballistic
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`tip under the trade name POLYMAG (“POLYMAG pellets”).
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`5.
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`On January 26, 2001, May and Phillips filed U.S. Patent Application No.
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`09/770,816 for Polymer Ballistic Tip Pellets as the inventors of the POLYMAG, which
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`matured into United States Patent No. 6,526,893 (the “„893 Patent”) on March 4, 2003.
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`6.
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`On or about January 1, 2007, Jay Cogswell and Richard Dixon allegedly
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`purchased Predator from May without paying Phillips or obtaining his consent.
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`7.
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`On or about December 2, 2008, May assigned his rights, title and interest
`
`in the „893 Patent to Predator.
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`8.
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`At no time did Phillips assign his rights, title and interest the „893 Patent to
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`Predator or to May.
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`9.
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`In July 2010, GAMO obtained an assignment from Lee Phillips in his
`
`rights, title and interest to and in the „893 Patent.
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`10. Predator‟s POLYMAG pellets are manufactured and sold with red tips that
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`one attaches with adhesives. The shade of red featured on the POLYMAG pellets is
`
`distinguishable from the shade of red implemented by GAMO on its RED FIRE® pellets.
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`
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`21
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`Case 1:09-cv-00970-PAB-KMT Document 164 Filed 09/23/10 USDC Colorado Page 22 of 29
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`11. Predator has alleged that the red tip feature of the POLYMAG pellets is
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`distinctive and well-