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Case 1:22-cv-24195-FAM Document 24 Entered on FLSD Docket 03/15/2023 Page 1 of 7
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`IN THE UNITED STATES DISTRICT COURT
`FOR THE SOUTHERN DISTRICT OF FLORIDA
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`CASE NO:1: 22-cv-24195-FAM
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`PREPARED FOOD PHOTOS, INC. f/k/a
`ADLIFE MARKETING &
`COMMUNICATIONS CO., INC.,
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`Plaintiff,
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`v.
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`ORIGINAL BIG TOMATO, LLC and
`MYPIZZA TECHNOLOGIES, INC. d/b/a
`SLICE,
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`Defendants.
`________________________________________/
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`DEFENDANT, ORIGINAL BIG TOMATO, LLC’S,
`ANSWER AND AFFIRMATIVE DEFENSES
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`
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`Defendant, ORIGINAL BIG TOMATO, LLC (“OBT” or “Defendant”), respectfully
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`answers the Complaint of Plaintiff, Prepared Food Photos, Inc. f/k/a Adlife Marketing &
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`Communications Co., Inc., as follows:
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`THE PARTIES
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`Paragraph 1 is admitted for jurisdictional purposes only.
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`Paragraph 2 is admitted.
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`OBT is without knowledge as to the information set forth in Paragraph 3,
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`1.
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`2.
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`3.
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`therefore, it is denied.
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`JURISDICTION & VENUE
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`4.
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`5.
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`6.
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`Paragraph 4 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 5 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 6 calls for a legal conclusion, therefore, it is denied.
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`M#23-00582
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`1
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`

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`Case 1:22-cv-24195-FAM Document 24 Entered on FLSD Docket 03/15/2023 Page 2 of 7
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`7.
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`Paragraph 7 calls for a legal conclusion, therefore, it is denied.
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`FACTS
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`8.
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`OBT is without knowledge as to the allegations contained in Paragraph 8,
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`therefore it is denied.
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`9.
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`OBT is without knowledge as to the allegations contained in Paragraph 9,
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`therefore it is denied.
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`10.
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`OBT is without knowledge as to the allegations contained in Paragraph 10,
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`therefore it is denied.
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`11.
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`OBT is without knowledge as to the allegations contained in Paragraph 11,
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`therefore it is denied.
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`12.
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`OBT is without knowledge as to the allegations contained in Paragraph 12,
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`therefore it is denied.
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`II. The Work At Issue In This Lawsuit.
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`13.
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`OBT is without knowledge as to the allegations contained in Paragraph 13,
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`therefore it is denied.
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`14.
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`OBT is without knowledge as to the allegations contained in Paragraph 14,
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`therefore it is denied.
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`15.
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`OBT is without knowledge as to the allegations contained in Paragraph 15,
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`therefore it is denied.
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`III. Defendant’s Unlawful Activities.
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`16.
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`OBT only operates one location in Pinecrest, Florida. As such, the allegations
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`contained in Paragraph 16 are denied.
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`M#23-00582
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`2
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`Case 1:22-cv-24195-FAM Document 24 Entered on FLSD Docket 03/15/2023 Page 3 of 7
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`17.
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`OBT admits that it does own and/or manage the website and social media pages
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`referenced in Paragraph 17, but has not updated its website in years, posted on Facebook since
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`2019, or posted on Instagram since 2020. As such, the remainder of the allegations contained in
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`Paragraph 17 are denied.
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`18.
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`OBT admits that Slice allows pizzeria’s like OBT to advertise its services for
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`purchase and delivery, similar to the services offered by platforms like Uber Eats or Door Dash.
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`OBT is without knowledge as to the remainder of the allegations contained in Paragraph 18,
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`therefore, they are denied.
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`19.
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`OBT is without knowledge as to the allegations contained in Paragraph 19,
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`therefore, they are denied.
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`20.
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`OBT is without knowledge as to the allegations contained in Paragraph 20,
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`therefore, they are denied.
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`21.
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`OBT is without knowledge as to the allegations contained in Paragraph 21,
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`therefore, they are denied.
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`22.
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`OBT is without knowledge as to the allegations contained in Paragraph 22,
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`therefore, they are denied.
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`23.
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`OBT is without knowledge as to the allegations contained in Paragraph 23,
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`therefore, they are denied.
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`24.
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`OBT is without knowledge as to the allegations contained in Paragraph 24,
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`therefore, they are denied.
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`25.
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`Paragraph 25 is denied.
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`26.
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`OBT is without knowledge as to the allegations contained in Paragraph 26,
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`therefore, they are denied.
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`M#23-00582
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`3
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`Case 1:22-cv-24195-FAM Document 24 Entered on FLSD Docket 03/15/2023 Page 4 of 7
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`27.
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`OBT is without knowledge as to the allegations contained in Paragraph 27,
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`therefore, they are denied.
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`Count I – Copyright Infringement
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`(Slice)
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`28.
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`OBT integrates its responses to Paragraphs 1 through 27 above as though they are
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`set forth fully herein.
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`29.
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`30.
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`31.
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`OBT denies the allegations set forth in Paragraph 29.
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`OBT denies the allegations set forth in Paragraph 30.
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`OBT is without knowledge as to the allegations set forth in Paragraph 31,
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`therefore, it is denied.
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`32.
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`OBT is without knowledge as to the allegations set forth in Paragraph 32,
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`therefore, it is denied.
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`33.
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`OBT is without knowledge as to the allegations set forth in Paragraph 33,
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`therefore, it is denied.
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`34.
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`OBT is without knowledge as to the allegations set forth in Paragraph 34,
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`therefore, it is denied.
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`35.
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`36.
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`37.
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`Paragraph 35 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 36 calls for a legal conclusion, therefore, it is denied.
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`OBT is without knowledge as to the allegations set forth in Paragraph 37,
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`therefore, it is denied.
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`38.
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`Paragraph 38 is denied.
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`39.
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`OBT is without knowledge as to the allegations set forth in Paragraph 39,
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`therefore, it is denied.
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`M#23-00582
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`4
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`Case 1:22-cv-24195-FAM Document 24 Entered on FLSD Docket 03/15/2023 Page 5 of 7
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`40.
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`OBT is without knowledge as to the allegations set forth in Paragraph 40,
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`therefore, it is denied.
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`41.
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`OBT is without knowledge as to the allegations set forth in Paragraph 41,
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`therefore, it is denied.
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`42.
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`43.
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`44.
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`45.
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`Paragraph 42 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 43 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 44 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 45 calls for a legal conclusion, therefore, it is denied.
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`Count II – Copyright Infringement
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`(Original Big Tomato)
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`46.
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`OBT integrates its responses to Paragraphs 1 through 27 above as though they are
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`set forth fully herein.
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`47.
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`Paragraph 47 is denied.
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`48.
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`OBT is without knowledge as to the allegations set forth in Paragraph 48,
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`therefore, it is denied.
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`49.
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`Paragraph 49 is denied.
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`50.
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`Paragraph 50 is denied.
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`51.
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`Paragraph 51 is denied.
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`52.
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`Paragraph 52 is denied.
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`53.
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`54.
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`Paragraph 53 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 54 calls for a legal conclusion, therefore, it is denied.
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`55.
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`Paragraph 55 is denied.
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`56.
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`Paragraph 56 is denied.
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`M#23-00582
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`5
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`Case 1:22-cv-24195-FAM Document 24 Entered on FLSD Docket 03/15/2023 Page 6 of 7
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`57.
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`Paragraph 57 is denied.
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`58.
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`59.
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`60.
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`61.
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`Paragraph 58 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 59 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 60 calls for a legal conclusion, therefore, it is denied.
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`Paragraph 61 calls for a legal conclusion, therefore, it is denied.
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`Any allegations not specifically admitted above in Paragraphs 1 through 61 are denied.
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`JURY TRIAL REQUEST
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`OBT requests a trial by jury for all issues so triable.
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`AFFIRMATIVE DEFENSES
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`1st Affirmative Defense
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`Plaintiff has failed to state a claim upon which relief may be granted.
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`2nd Affirmative Defense
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`Plaintiff has sustained no harm, irreparable or otherwise, due to any action by Defendant.
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`3rd Affirmative Defense
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`Plaintiff’s claims fail for the work’s lack of copyrightability.
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`4th Affirmative Defense
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`Plaintiff’s demand related to its licensing fee is not the fair market value of the Work.
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`5th Affirmative Defense
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`Plaintiff’s claims fail because the work at issue is based solely on an expression that
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`flows from an idea.
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`6th Affirmative Defense
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`Plaintiff’s claims fail because, to the extent that OBT infringed, its use was de minimus.
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`7th Affirmative Defense
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`6
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`M#23-00582
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`Case 1:22-cv-24195-FAM Document 24 Entered on FLSD Docket 03/15/2023 Page 7 of 7
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`To the extent that OBT is found to have infringed on Plaintiff’s works, such infringement
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`was not willful, and was unintentional.
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`8th Affirmative Defense
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`To the extent that Plaintiff’s works are found to be copyrightable, it’s claims are barred
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`by the doctrine of laches.
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`9th Affirmative Defense
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`OBT is entitled to attorneys’ fees under the Copyright Act because Plaintiff’s claims are
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`objectively unreasonable.
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`CERTIFICATE OF SERVICE
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`I hereby certify that on March 15, 2023, I electronically filed the foregoing document
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`with the Clerk of Court using CM/ECF, which will electronically serve all counsels of record.
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`By: _/s/ Michelle K. Suarez, Esq._
`Michelle K. Suarez, Esq.
`Florida Bar No.: 104826
`Counsel for Original Big Tomato, LLC.
`FLORIDA ENTREPRENEUR LAW, P.A.
`101 N.E. 3rd Avenue, Suite 1500
`Fort Lauderdale, FL 33301
`Direct: (954) 882-4119
`Office: (954) 800-0484
`Email: MSuarez@FloridaEntrepreneurLaw.com
`Email: Eservice@FloridaEntrepreneurLaw.com
`Email : Aprila@FloridaEntrepreneurLaw.com
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`M#23-00582
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`7
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