`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`Plaintiff,
`
`HONG KONG LEYUZHEN TECHNOLOGY
`CO., LTD.,
`
`
`
`
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`v.
`
`THE INDIVIDUALS, CORPORATIONS,
`LIMITED LIABILITY COMPANIES,
`PARTNERSHIPS AND UNINCORPORATED
`ASSOCIATIONS IDENTIFIED IN
`SCHEDULE “A” HERETO,
`
`
`
`
`
`Defendants.
`
`
`
`Case No. 1:24-CV-02939-MFK-BWJ
`
`
`
`Honorable Matthew F. Kennelly
`
`Magistrate Beth W. Jantz
`
`
`
`
`
`
`
`
`PLAINTIFF’S ANSWER TO DEFENDANT’S COUNTERCLAIMS AND
`AFFIRMATIVE DEFENSES
`
`Plaintiff Hong Kong Leyuzhen Technology Co., Ltd. (“Plaintiff” or “Counterclaim
`
`Defendant”) hereby answers the following Counterclaims by Defendants Floerns, Verdusa, and
`
`Sweatyrocks (the “Dykema Defendants,” or “Defendants”).
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`COUNTERCLAIMS
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`As counterclaims against Plaintiff, the Dykema Defendants hereby alleges as follows:
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`ANSWER: Denied.
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`PARTIES
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`1.
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`Defendants
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`and Counterclaimants
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`Floerns, Verdusa,
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`SweatyRocks
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`(“Counterclaimants” or “Dykema Defendants”) are Chinese business entities. The Dykema
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`Defendants promote and sell clothing products via their respective internet stores.
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`ANSWER: Admitted in part and denied in part. Plaintiff admits that the Dykema
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`Defendants promote and sell clothing products through the internet. Plaintiff lacks sufficient
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`1
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 2 of 23 PageID #:2387
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`information and belief as to all remaining allegations in Paragraph 1 and on that basis denies them.
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`2.
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` Counterclaim Defendant admitted in its Complaint that it is a corporation
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`organized under the laws of the People’s Republic of China.
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`ANSWER: Admitted.
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`JURISDICTION AND VENUE
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`3.
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`By these counterclaims, the Dykema Defendants seek declarations pursuant to the
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`Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
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`ANSWER: Counterclaim Defendant admits that the Dykema Defendants seek such relief,
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`but deny that they are entitled to entry of the relief requested.
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`4.
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`This Court has jurisdiction over the subject matter of these counterclaims under 28
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`U.S.C. §§ 1331, 1338(a), 2201 and 2202.
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`ANSWER: Denied.
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`5.
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`By commencing this action in this Court, Plaintiff/Counter-Defendant consented to
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`this Court’s exercise of personal jurisdiction over it.
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`ANSWER: Admitted.
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`6.
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`An actual controversy exists under the Declaratory Judgment Act because
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`Plaintiff/Counter-Defendant filed an action for copyright infringement, false designation of origin
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`under the Lanham Act, and violation of the Illinois Uniform Deceptive Trade Practices Act against
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`the Dykema Defendants, amongst other defendants, alleging infringement and counterfeiting of
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`certain photographs. The Dykema Defendants deny these assertions, deny that Plaintiff/Counter-
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`Defendant lawfully owns the asserted copyrights, deny they have infringed Plaintiff/Counter-
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`Defendant’s alleged copyrights, and deny they violated 15 U.S.C. § 1125(a) and the Illinois
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`Uniform Deceptive Trade Practices Act.
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`2
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 3 of 23 PageID #:2388
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`ANSWER: Admitted to the extent the Dykema Defendants have asserted viable claims for
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`non-infringement and contest ownership of the copyright protected images asserted against them.
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`To the extent the Dykema Defendants seek relief beyond the scope of what has been asserted
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`against them by Plaintiff, Plaintiff denies the allegations of Paragraph 6.
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`FACTS
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`7.
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`The Dykema Defendants repeat, reallege and incorporate by reference herein its
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`allegations contained in paragraphs 1 through 7, above.
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`ANSWER: Plaintiff/Counter-Defendant incorporates by reference its answers to the
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`preceding paragraphs. 1 through 7 as though fully incorporated herein.
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`8.
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`Plaintiff/Counter-Defendant filed an application, with the United States Copyright
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`Office (the “Copyright Office”), titled “Rotita8-2023” for the group registration of certain
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`published photographs. With respect to its “Rotita8-2023” application, Plaintiff/Counter-
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`Defendant represented to the Copyright Office that it is the author and copyright claimant of the
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`569 submitted photographs. On November 12, 2023, the Copyright Office approved the “Rotita8-
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`2023” application and issued Copyright Registration No. VA0002379907 for a “Group
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`Registration Of Published Photographs.568 Photographs. 2023-01-04 To 2023-08-22.” See Dkt.
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`35-1, pp. 9-10.
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`ANSWER: Admitted.
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`9.
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`Plaintiff/Counter-Defendant also filed an application, with the Copyright Office,
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`titled “Rotita7-2023” for the group registration of certain published photographs. With respect to
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`its “Rotita7-2023” application, Plaintiff/Counter-Defendant represented to the Copyright Office
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`that it is the author and copyright claimant of the 534 submitted photographs. On November 12,
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`2023, the Copyright Office approved “Rotita7-2023” application and issued Copyright
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`3
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 4 of 23 PageID #:2389
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`Registration No. VA0002379899 for a “Group registration of published photographs.534
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`photographs. 2023-07-28 to 2023-11-08. See Dkt. 35-1, pp. 19-20.
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`ANSWER: Admitted.
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`10.
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`In the Complaint, Plaintiff/Counter-Defendant accused Defendant Floerns of
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`infringing one photo in a group of 568 photos in Copyright Registration No. VA0002379907.
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`Plaintiff/Counter-Defendant also accused Defendants Verdusa of infringing one photo and
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`SweatyRocks of infringing two additional photos in a group of 534 photos in Copyright
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`Registration No. VA0002379899.
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`ANSWER: Admitted.
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`11.
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`Plaintiff/Counter-Defendant claims
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`it has exclusive rights
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`to Copyright
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`Registration Nos. VA0002379899 and VA0002379907 (the “Asserted Copyright Registrations”).
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`ANSWER: Admitted.
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`12.
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`On information and belief, the accused infringing photos of the Dykema
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`Defendants were created prior to the creation date of the asserted photos in Plaintiff’s Asserted
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`Copyright Registrations and some or all were published on the Dykema Defendants’ respective
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`online stores to promote clothing products for sale before the asserted photos were published by
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`Plaintiff. The Dykema Defendants do not sell counterfeit Rotita Brand products, and
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`Plaintiff/Counter-Defendant does not claim to have intellectual property rights in those products,
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`only in the photos of such products.
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`ANSWER: Denied. Plaintiff/Counter-Defendant
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`lacks knowledge or
`
`information
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`sufficient to form a belief as to the truth of the allegations contained in Paragraph 12 of the
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`Counterclaims, and therefore deny the same.
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`13.
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`The Dykema Defendants did not copy Plaintiff/Counter-Defendant’s photographs
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`4
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 5 of 23 PageID #:2390
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`from the Rotita website or otherwise, but rather obtained the photographs from their clothing
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`suppliers. The clothing suppliers obtained the photographs from photography businesses who are
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`the photographers of the photos and provided them to the suppliers; the suppliers assigned
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`ownership of the copyrights in the accused photos to the Dykema Defendants.
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`ANSWER: Denied. Plaintiff/Counter-Defendant
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`lacks knowledge or
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`information
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`sufficient to form a belief as to the truth of the allegations in Paragraph 13 of the Counterclaims,
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`and therefore deny the same.
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`14.
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`Zhou Hongyi is a photographer who works for NEW STAR Photography Base
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`located at Shatou Daping Industrial Street, Panyu District, Guangzhou, China (the “First
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`Photography Business”). Part of Zhou Hongy’s job involves taking photographs of models wearing
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`clothing products supplied by clothing suppliers. These clothing suppliers hire the First
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`Photography Business to take such photographs for them. These clothing suppliers supply clothing
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`products to online stores and provide such photographs to these stores so that the stores can display
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`the photographs in connection with the stores’ listings of the clothing products for sale. The
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`Declaration of Zhou Hongyi is attached hereto as Exhibit A.
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`ANSWER: Denied. Plaintiff/Counter-Defendant
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`lacks knowledge or
`
`information
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`sufficient to form a belief as to the truth of the allegations in Paragraph 14 of the Counterclaims,
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`and therefore deny the same. In addition, Plaintiff/Counter-Defendant denies the admissibility
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`and/or the veracity of the statements contained in Exhibit A.
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`15.
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`Zhou Hongyi was the photographer of the following three (3) photographs that were
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`provided to a clothing supplier who hired the Photography Business.
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`///
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`///
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`5
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 6 of 23 PageID #:2391
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`“Photograph 1” “Photograph 2” “Photograph 3”
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`ANSWER: Denied. Plaintiff/Counter-Defendant lacks knowledge or information sufficient
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`to form a belief as to the truth of allegations in Paragraph 15 of the Counterclaims, and therefore
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`deny the same.
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`16.
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`The Photography Business did not assign, license, or otherwise authorize use of these
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`photographs to the Plaintiff/Counter-Defendant. Based on the First Photography Business’ business
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`records, the file properties for the originals of Photographs 1, 2 and 3, and/or Zhou Hongyi’s
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`recollection, Zhou Hongyi took Photograph 1 on July 28, 2023, Photograph 2 on August 1, 2023, and
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`Photograph 3 on August 3, 2023. See Exhibit C.
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`ANSWER: Denied. Plaintiff/Counter-Defendant lacks knowledge or information sufficient
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`to form a belief as to the truth of the allegations in Paragraph 16 of the Counterclaims, and therefore
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`deny the same. In addition, Plaintiff/Counter-Defendant denies the admissibility and/or the
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`veracity of the statements contained in Exhibit C.
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`17.
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`Xu Yujie is a photographer who works for Guangzhou Zihe Culture Media Co.,
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`Ltd. located at Dashi Street, Panyu District, Guangzhou China (“Second Photography Business”).
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`Part of Xu Yujie’s job involves taking photographs of models wearing clothing products supplied
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`by clothing suppliers. These clothing suppliers hire the Second Photography Business to take such
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`photographs for them. These clothing suppliers supply clothing products to online stores and
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`provide such photographs to these stores so that the stores can display the photographs in
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`6
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 7 of 23 PageID #:2392
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`connection with the stores’ listings of the clothing products for sale. The Declaration of Xu Yujie
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`is attached hereto as Exhibit B.
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`ANSWER: Denied. Plaintiff/Counter-Defendant
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`lacks knowledge or
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`information
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`sufficient to form a belief as to the truth of the allegations in Paragraph 17 of the Counterclaims,
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`and therefore deny the same. In addition, Plaintiff/Counter-Defendant denies the admissibility
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`and/or the veracity of the statements contained in Exhibit B.
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`18.
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`Xu Yujie was the photographer of the following photograph that was provided to a
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`clothing supplier who hired the Second Photography Business:
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`
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`“Photograph 4” see Exhibit B
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`ANSWER: Denied. Plaintiff/Counter-Defendant
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`lacks knowledge or
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`information
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`sufficient to form a belief as to the truth of the allegations in Paragraph 18 of the Counterclaims,
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`and therefore deny the same. In addition, Plaintiff/Counter-Defendant denies the admissibility
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`and/or the veracity of the statements contained in Exhibit B.
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`19.
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`The Second Photography Business did not assign, license, or otherwise authorize
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`use of this photograph to Plaintiff/Counter-Defendant. Based on the Second Photography
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`Business’ business records, the file properties for the original of Photograph 4 and/or Xu Yujie’s
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`recollection indicate it was taken on October 10, 2022. See Exhibit B.
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`ANSWER: Denied. Plaintiff/Counter-Defendant
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`lacks knowledge or
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`information
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`7
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 8 of 23 PageID #:2393
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`sufficient to form a belief as to the truth of the allegations in Paragraph 19 of the Counterclaims,
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`and therefore deny the same. In addition, Plaintiff/Counter-Defendant denies the admissibility
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`and/or the veracity of the statements contained in Exhibit B.
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`FIRST COUNTERCLAIM
`(Declaratory Judgment of Invalid Copyrights for Fraud on the Copyright Office)
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`The Dykema Defendants repeat, reallege and incorporate by reference herein its
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`20.
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`allegations contained in paragraphs 1 through 19, above.
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`ANSWER: Counterclaim Defendant incorporates by reference its answers to preceding
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`paragraphs 1 through 19 as though fully incorporated herein.
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`21.
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`Plaintiff/Counter-Defendant accused Defendant Floerns of infringing one photo in
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`a group of 568 photos in Copyright Registration No. VA0002379907; accused Defendant Verdusa
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`of infringing one photo in a group of 534 photos in Copyright Registration No. VA0002379899;
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`and accused SweatyRocks of infringing two other photos in the group of 534 photos in Copyright
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`Registration No. VA0002379899 (collectively, the “Asserted Copyright Registrations”).
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`ANSWER: Admitted.
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`22.
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`Specifically, Plaintiff/Counter-Defendant accused Defendant SweatyRocks of
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`infringing the left photographs depicted below by Defendant SweatyRocks’ publication of
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`Photograph 1 and Photograph 2.
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`8
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 9 of 23 PageID #:2394
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
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`on, among other things, the unauthorized display of copyright protected images that are contained
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`in the thumbnail images included in the above depiction.
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`23.
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`In addition, Plaintiff/Counter-Defendant accused Defendant Verdusa of infringing
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`the left photograph depicted below by Defendant Verdusa’s publication of Photograph 3.
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`
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
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`on, among other things, the unauthorized display of copyright protected images that are contained
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`in the thumbnail images included in the above depiction.
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`24.
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`Plaintiff/Counter-Defendant accused Defendant Floerns of infringing the left
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`photograph depicted below by Defendant Floerns’ publication of Photograph 4.
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`9
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 10 of 23 PageID #:2395
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
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`on, among other things, the unauthorized display of copyright protected images that are contained
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`in the thumbnail images included in the above depiction.
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`25.
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`The subject matter of the Asserted Copyright Registrations appear to depict the
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`same articles of clothing as that depicted in Photograph 1, Photograph 2, Photograph 3, and
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`Photograph 4, respectively.
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`ANSWER: Denied.
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`26.
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`The subject matter of the Asserted Copyright Registrations appear to depict the
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`same models wearing the same clothing as that depicted in Photograph 1, Photograph 2,
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`Photograph 3, and Photograph 4, respectively. On information and belief, the Dykema Defendants’
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`clothing suppliers obtained the photographs that are the subject of the Asserted Copyright
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`Registrations from the photography businesses and photographers who took Photograph 1,
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`Photograph 2, Photograph 3, and Photograph 4.
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
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`on, among other things, the unauthorized display of copyright protected images that are contained
`
`in the thumbnail images included in the above depiction. Moreover, Plaintiff/Counter-Defendant
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`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations in Paragraph 26 of the Counterclaims, and therefore deny the same.
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`27.
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`Thus, on
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`information and belief,
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`these photography businesses and/or
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`photographers are the original authors of the photographs that are the subject of the Asserted
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`10
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 11 of 23 PageID #:2396
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`Copyright Registrations.
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
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`on, among other things, the unauthorized display of copyright protected images that are contained
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`in the thumbnail images included in the above depiction. Moreover, Plaintiff/Counter-Defendant
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`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
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`allegations in Paragraph 27 of the Counterclaims, and therefore deny the same.
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`28.
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`Accordingly, on information and belief, Plaintiff/Counter-Defendant is not the
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`author or owner of the photographs that are the subject of the Asserted Copyright Registrations.
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`ANSWER: Denied.
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`29.
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`On information and belief, the Asserted Copyright Registrations are invalid and
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`unenforceable because Plaintiff/Counter-Defendant wrongfully obtained the registrations through
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`fraud upon the Copyright Office and because Plaintiff/Counter-Defendant wrongfully claims
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`ownership of the Asserted Copyright Registrations.
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`ANSWER: Denied.
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`30.
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`On
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`information and belief, Plaintiff/Counter-Defendant made various
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`misrepresentations to the Copyright Office within its applications for the Asserted Copyright
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`Registrations including:
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`(a) Plaintiff/Counter-Defendant’s assertion that it is the author of the Asserted Copyright
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`Registrations;
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`(b) Plaintiff/Counter-Defendant’s assertion that it is the owner of Asserted Copyright
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`Registrations;
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`(c) Plaintiff/Counter-Defendant’s failure to identify the true author of the Asserted
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`Copyright Registrations;
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`11
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 12 of 23 PageID #:2397
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`(d) Plaintiff/Counter-Defendant’s failure to identify the true owner or co-owner of the
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`Asserted Copyright Registrations;
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`ANSWER: Denied as to all (a) through (d).
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`31.
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`On information and belief, in its applications for the Asserted Copyright
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`Registrations, Plaintiff/Counter-Defendant knowingly and willfully misrepresented that it was the
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`author and owner of the Asserted Copyright Registrations, intending to mislead the Copyright
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`Office, such that the Copyright Office would rely on this material information, approve the
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`application, and issue a copyright registration.
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`ANSWER: Denied.
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`32.
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`Had
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`the Copyright Office known
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`that
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`the
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`information submitted by
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`Plaintiff/Counter-Defendant in its applications for the Asserted Copyright Registrations regarding
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`authorship and ownership was false, the applications would have been refused and the Asserted
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`Copyright Registrations would not have been issued.
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`ANSWER: Denied.
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`33.
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`Therefore, Plaintiff/Counter-Defendant committed fraud on the Copyright Office
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`by falsely representing that it is the author and owner of the Asserted Copyright Registrations with
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`the intent to deceive.
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`ANSWER: Denied.
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`34.
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`Based on the foregoing, the Dykema Defendants are entitled to a declaratory
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`judgment pursuant to 28 U.S.C. § 2201 that the Asserted Copyright Registrations are invalid and
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`unenforceable.
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`ANSWER: Denied.
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`35.
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`In addition, the Dykema Defendants are entitled to an order the directing the
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`12
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 13 of 23 PageID #:2398
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`Plaintiff/Counter-Defendant and/or Copyright Office to cancel
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`the Asserted Copyright
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`Registrations because they were fraudulently procured.
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`ANSWER: Denied.
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`SECOND COUNTERCLAIM
`(Declaratory Judgment of Invalid Copyrights)
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`The Dykema Defendants repeat, reallege and incorporate by reference herein its
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`36.
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`allegations contained in paragraphs 1 through 35, above.
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`ANSWER: Counterclaim Defendant incorporates by reference its answers to preceding
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`paragraphs 1 through 35 as though fully incorporated herein.
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`37.
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`There is an actual and justiciable controversy between the parties regarding the
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`alleged copyright infringement.
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`ANSWER: Admitted.
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`38.
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`Plaintiff/ Counter-Defendant accused Defendant Floerns of infringing one photo in
`
`a group of 568 photos in Copyright Registration No. VA0002379907; accused Defendant Verdusa
`
`of infringing one photo in a group of 534 photos in Copyright Registration No. VA0002379899;
`
`and accused SweatyRocks of infringing two other photos in the group of 534 photos in Copyright
`
`Registration No. VA0002379899 (collectively, the “Asserted Copyright Registrations”).
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`ANSWER: Admitted.
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`39.
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`Specifically, Plaintiff/Counter-Defendant accused Defendant SweatyRocks of
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`infringing the left photographs depicted below by Defendant SweatyRocks’ publication of
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`Photograph 1 and Photograph 2.
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`13
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 14 of 23 PageID #:2399
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
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`on, among other things, the unauthorized display of copyright protected images that are contained
`
`in the thumbnail images included in the above depiction.
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`40.
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`In addition, Plaintiff/Counter-Defendant accused Defendant Verdusa of infringing
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`the left photograph depicted below by Defendant Verdusa’s publication of Photograph 3.
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`
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
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`on, among other things, the unauthorized display of copyright protected images that are contained
`
`in the thumbnail images included in the above depiction.
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`41.
`
`Plaintiff/Counter-Defendant accused Defendant Floerns of infringing the left
`
`photograph depicted below by Defendant Floerns’ publication of Photograph 4.
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`14
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`Case No. 1:24-CV-02939-MFK-BWJ
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 15 of 23 PageID #:2400
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
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`on, among other things, the unauthorized display of copyright protected images that are contained
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`in the thumbnail images included in the above depiction.
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`42.
`
`The subject matter of the Asserted Copyright Registrations appear to depict the
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`same articles of clothing as that depicted in Photograph 1, Photograph 2, Photograph 3, and
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`Photograph 4, respectively.
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`ANSWER: Denied.
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`43.
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`The subject matter of the Asserted Copyright Registrations appear to depict the
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`same models wearing the same clothing as that depicted in Photograph 1, Photograph 2,
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`Photograph 3, and Photograph 4, respectively. On information and belief, the Dykema Defendants’
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`clothing suppliers obtained the photographs that are the subject of the Asserted Copyright
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`Registrations from the photography businesses and photographers who took Photograph 1,
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`Photograph 2, Photograph 3, and Photograph 4.
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`ANSWER: Denied.
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`44.
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`Thus, on
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`information and belief,
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`these photography businesses and/or
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`photographers are the original authors of the photographs that are the subject of the Asserted
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`Copyright Registrations.
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`ANSWER: Denied.
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`45.
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`Accordingly, on information and belief, Plaintiff/Counter-Defendant is not the
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`author of the photographs that are the subject of the Asserted Copyright Registrations.
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`ANSWER: Denied.
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`46.
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`Upon information and belief, therefore, Plaintiff/Counter-Defendant did not
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`independently create the claimed work. Accordingly, the Asserted Copyright Registrations are not
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`valid because the claimed work is not original and/or does not possess at least a minimum degree
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`of creativity.
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`ANSWER: Denied.
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`47.
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`Upon information and belief, the Asserted Copyright Registrations are also invalid
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`because exact or near exact copies of the subject matter of the Asserted Copyright Registrations
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`existed prior to Plaintiff/Counter-Defendant’s alleged creation and/or first publication date (“Prior
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`Art Copies”).
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`ANSWER: Denied.
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`48.
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`Upon
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`information and belief, Plaintiff/Counter-Defendant had actual or
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`constructive knowledge of the Prior Art Copies when filing for the Asserted Copyright
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`Registrations at the United States Copyright Office and willfully did not disclose the Prior Art
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`Copies.
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`ANSWER: Denied.
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`49.
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`Based on the foregoing, the Dykema Defendants are entitled to a declaratory
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`judgment pursuant to 28 U.S.C. § 2201 that the Asserted Copyright Registrations are invalid and
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`unenforceable.
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`ANSWER: Denied.
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`THIRD COUNTERCLAIM
`(Unfair Competition)
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`The Dykema Defendants repeat, reallege and incorporate by reference herein its
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`50.
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`allegations contained in paragraphs 1 through 49, above.
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`ANSWER: Counterclaim Defendant incorporates by reference its answers to preceding
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`paragraphs 1 through 49 as though fully asserted herein.
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`51.
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`The Dykema Defendants are seeking to compete with Plaintiff/Counter-Defendant
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`in the U.S. market for online clothing sales. Plaintiff/Counter-Defendant’s seeks to bar the Dykema
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`Defendants from being able to visually display their respective clothing products to consumers on
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`their respective internet stores. The Plaintiff/Counter-Defendant’s exclusionary conduct as alleged
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`herein—whether or not such conduct constitutes a violation of the Sherman Act—has
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`unreasonably interfered with the Dykema Defendants’ ability to compete in that market, is not
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`protected by any privilege, and constitutes unfair competition in violation of the common law of
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`the State of Illinois.
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`ANSWER: Denied.
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`52.
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`As a direct and proximate result of Plaintiff/Counter-Defendant’s unlawful
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`conduct, the Dykema Defendants have been injured and financially damaged in amounts to be
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`determined at trial.
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`ANSWER: Denied.
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`53.
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`The damages the Dykema Defendants have sustained and continue to sustain
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`include, but are not limited to, the attorney’s fees and costs incurred in defending this litigation, as
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`well as the forced diversion of resources away from other areas of the Dykema Defendants’
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`respective businesses.
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`ANSWER: Denied.
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`54.
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`Unless Plaintiff/Counter-Defendant is enjoined, it will continue to engage in the
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`unlawful conduct alleged above. Further, unless the Court enjoins Plaintiff/Counter-Defendant’s
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`unlawful conduct, the Dykema Defendants will continue to suffer irreparable harm to their
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 18 of 23 PageID #:2403
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`respective businesses.
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`ANSWER: Denied.
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`FOURTH COUNTERCLAIM
`(Tortious Interference – Interference with Prospective Economic Advantage)
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`The Dykema Defendants repeat, reallege and incorporate by reference herein its
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`55.
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`allegations contained in paragraphs 1 through 54, above.
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`ANSWER: Counterclaim Defendant incorporates by reference its answers to preceding
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`paragraphs 1 through 54 as though fully incorporated herein.
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`56.
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`Plaintiff/Counter-Defendant has inflicted intentional interference with prospective
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`economic advantage through the wrongful inducement of Amazon to bar the Dykema Defendants
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`from the continued sale of their respective clothing products, which are not protected by
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`Plaintiff/Counter-Defendant’s Asserted Copyright Registrations. Furthermore, Plaintiff/Counter-
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`Defendant’s freezing of the Dykema Defendants’ respective assets, including respective store
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`accounts, has inflicted intentional interference with prospective economic advantage through the
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`wrongful inducement of Amazon to bar the Dykema Defendants from the continued sale of
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`clothing products that are not even depicted in the subject matter of the Asserted Copyright
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`Registrations.
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`ANSWER: Denied.
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`57.
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`This has caused intentional harm to the Dykema Defendants and acts as a causal
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`connection between the Plaintiff/Counter-Defendant’s conduct and the actual harm to the Dykema
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`Defendants.
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`ANSWER: Denied.
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`58.
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`Unless Plaintiff/Counter-Defendant is enjoined, it will continue to engage in the
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`unlawful conduct alleged above. Further, unless the Court enjoins Plaintiff/Counter-Defendant’s
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 19 of 23 PageID #:2404
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`unlawful conduct, the Dykema Defendants will continue to suffer irreparable harm to its
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`reputation, goodwill of its brand, and ongoing direct economic harm due to the continued bar of
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`their respective products from sale and freezing of their assets, including respective store accounts.
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`ANSWER: Denied.
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`PRAYER FOR RELIEF
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`59. WHEREFORE, the Dykema Defendants ask the Court for judgment as follows:
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`A. That all relief sought by Plaintiff be denied;
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`B. That Plaintiff’s claims be dismissed with prejudice;
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`C. That the Dykema Defendants’ counterclaims be granted;
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`D. That this Court declare that Plaintiff/Counter-Defendant’s copyrights are unenforceable
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`and invalid on the grounds that they were fraudulently procured and/or the works are not
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`copyrightable;
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`E. That the Plaintiff/Counter-Defendant and/or the Copyright Office be directed to cancel
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`the Asserted Copyright Registrations on the grounds that they were fraudulently procured and/or
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`the works are not copyrightable;
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`F. That the Dykema Defendants/Counter-Plaintiffs be awarded its costs and attorneys’ fees
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`with respect to this action;
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`G. That the Court adjudge and decree that the unlawful conduct alleged herein constitutes
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`a violation of Illinois common law;
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`H. That the Court grant permanent injunctive relief under the antitrust laws putting an end
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`to Plaintiff/Counter-Defendant’s illegal conduct, depriving the Plaintiff/Counter-Defendant of the
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`benefits of such conduct, and restoring competition to the marketplace;
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`I. That the Court grant permanent injunctive relief based on Plaintiff/Counter-Defendant’s
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`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 20 of 23 PageID #:2405
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`unfair competition and interference with prospective economic advantage in violation of the
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`common law of Illinois;
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`J. That the Court award compensatory damages to the Dykema Defendants/Counter-
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`Plaintiffs for Plaintiff/Counter-Defendant’s unfair competition and interference with prospective
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`economic advantage in violation of the common law of the State of Illinois;
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`K. That the Court award damages to the Dykema Defendants/Counter-Plaintiffs for
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`Plaintiff/Counter-Defendant’s interference with prospective economic advantage;
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`L. That the Dykema Defendants/Counter-Plaintiffs be awarded all damages it has sustained
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`as a consequence of Plaintiff/Counter-