throbber
Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 1 of 23 PageID #:2386
`
`IN THE UNITED STATES DISTRICT COURT
`FOR THE NORTHERN DISTRICT OF ILLINOIS
`EASTERN DIVISION
`
`
`Plaintiff,
`
`HONG KONG LEYUZHEN TECHNOLOGY
`CO., LTD.,
`
`
`
`
`
`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”).
`
`COUNTERCLAIMS
`
`As counterclaims against Plaintiff, the Dykema Defendants hereby alleges as follows:
`
`ANSWER: Denied.
`
`PARTIES
`
`1.
`
`Defendants
`
`and Counterclaimants
`
`Floerns, Verdusa,
`
`SweatyRocks
`
`(“Counterclaimants” or “Dykema Defendants”) are Chinese business entities. The Dykema
`
`Defendants promote and sell clothing products via their respective internet stores.
`
`ANSWER: Admitted in part and denied in part. Plaintiff admits that the Dykema
`
`Defendants promote and sell clothing products through the internet. Plaintiff lacks sufficient
`
`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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`

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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.
`
`2.
`
` Counterclaim Defendant admitted in its Complaint that it is a corporation
`
`organized under the laws of the People’s Republic of China.
`
`ANSWER: Admitted.
`
`JURISDICTION AND VENUE
`
`3.
`
`By these counterclaims, the Dykema Defendants seek declarations pursuant to the
`
`Declaratory Judgment Act, 28 U.S.C. §§ 2201 and 2202.
`
`ANSWER: Counterclaim Defendant admits that the Dykema Defendants seek such relief,
`
`but deny that they are entitled to entry of the relief requested.
`
`4.
`
`This Court has jurisdiction over the subject matter of these counterclaims under 28
`
`U.S.C. §§ 1331, 1338(a), 2201 and 2202.
`
`ANSWER: Denied.
`
`5.
`
`By commencing this action in this Court, Plaintiff/Counter-Defendant consented to
`
`this Court’s exercise of personal jurisdiction over it.
`
`ANSWER: Admitted.
`
`6.
`
`An actual controversy exists under the Declaratory Judgment Act because
`
`Plaintiff/Counter-Defendant filed an action for copyright infringement, false designation of origin
`
`under the Lanham Act, and violation of the Illinois Uniform Deceptive Trade Practices Act against
`
`the Dykema Defendants, amongst other defendants, alleging infringement and counterfeiting of
`
`certain photographs. The Dykema Defendants deny these assertions, deny that Plaintiff/Counter-
`
`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.
`
`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`2
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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.
`
`To the extent the Dykema Defendants seek relief beyond the scope of what has been asserted
`
`against them by Plaintiff, Plaintiff denies the allegations of Paragraph 6.
`
`FACTS
`
`7.
`
`The Dykema Defendants repeat, reallege and incorporate by reference herein its
`
`allegations contained in paragraphs 1 through 7, above.
`
`ANSWER: Plaintiff/Counter-Defendant incorporates by reference its answers to the
`
`preceding paragraphs. 1 through 7 as though fully incorporated herein.
`
`8.
`
`Plaintiff/Counter-Defendant filed an application, with the United States Copyright
`
`Office (the “Copyright Office”), titled “Rotita8-2023” for the group registration of certain
`
`published photographs. With respect to its “Rotita8-2023” application, Plaintiff/Counter-
`
`Defendant represented to the Copyright Office that it is the author and copyright claimant of the
`
`569 submitted photographs. On November 12, 2023, the Copyright Office approved the “Rotita8-
`
`2023” application and issued Copyright Registration No. VA0002379907 for a “Group
`
`Registration Of Published Photographs.568 Photographs. 2023-01-04 To 2023-08-22.” See Dkt.
`
`35-1, pp. 9-10.
`
`ANSWER: Admitted.
`
`9.
`
`Plaintiff/Counter-Defendant also filed an application, with the Copyright Office,
`
`titled “Rotita7-2023” for the group registration of certain published photographs. With respect to
`
`its “Rotita7-2023” application, Plaintiff/Counter-Defendant represented to the Copyright Office
`
`that it is the author and copyright claimant of the 534 submitted photographs. On November 12,
`
`2023, the Copyright Office approved “Rotita7-2023” application and issued Copyright
`
`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`3
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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
`
`photographs. 2023-07-28 to 2023-11-08. See Dkt. 35-1, pp. 19-20.
`
`ANSWER: Admitted.
`
`10.
`
`In the Complaint, Plaintiff/Counter-Defendant accused Defendant Floerns of
`
`infringing one photo in a group of 568 photos in Copyright Registration No. VA0002379907.
`
`Plaintiff/Counter-Defendant also accused Defendants Verdusa of infringing one photo and
`
`SweatyRocks of infringing two additional photos in a group of 534 photos in Copyright
`
`Registration No. VA0002379899.
`
`ANSWER: Admitted.
`
`11.
`
`Plaintiff/Counter-Defendant claims
`
`it has exclusive rights
`
`to Copyright
`
`Registration Nos. VA0002379899 and VA0002379907 (the “Asserted Copyright Registrations”).
`
`ANSWER: Admitted.
`
`12.
`
`On information and belief, the accused infringing photos of the Dykema
`
`Defendants were created prior to the creation date of the asserted photos in Plaintiff’s Asserted
`
`Copyright Registrations and some or all were published on the Dykema Defendants’ respective
`
`online stores to promote clothing products for sale before the asserted photos were published by
`
`Plaintiff. The Dykema Defendants do not sell counterfeit Rotita Brand products, and
`
`Plaintiff/Counter-Defendant does not claim to have intellectual property rights in those products,
`
`only in the photos of such products.
`
`ANSWER: Denied. Plaintiff/Counter-Defendant
`
`lacks knowledge or
`
`information
`
`sufficient to form a belief as to the truth of the allegations contained in Paragraph 12 of the
`
`Counterclaims, and therefore deny the same.
`
`13.
`
`The Dykema Defendants did not copy Plaintiff/Counter-Defendant’s photographs
`
`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`4
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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
`
`the photographers of the photos and provided them to the suppliers; the suppliers assigned
`
`ownership of the copyrights in the accused photos to the Dykema Defendants.
`
`ANSWER: Denied. Plaintiff/Counter-Defendant
`
`lacks knowledge or
`
`information
`
`sufficient to form a belief as to the truth of the allegations in Paragraph 13 of the Counterclaims,
`
`and therefore deny the same.
`
`14.
`
`Zhou Hongyi is a photographer who works for NEW STAR Photography Base
`
`located at Shatou Daping Industrial Street, Panyu District, Guangzhou, China (the “First
`
`Photography Business”). Part of Zhou Hongy’s job involves taking photographs of models wearing
`
`clothing products supplied by clothing suppliers. These clothing suppliers hire the First
`
`Photography Business to take such photographs for them. These clothing suppliers supply clothing
`
`products to online stores and provide such photographs to these stores so that the stores can display
`
`the photographs in connection with the stores’ listings of the clothing products for sale. The
`
`Declaration of Zhou Hongyi is attached hereto as Exhibit A.
`
`ANSWER: Denied. Plaintiff/Counter-Defendant
`
`lacks knowledge or
`
`information
`
`sufficient to form a belief as to the truth of the allegations in Paragraph 14 of the Counterclaims,
`
`and therefore deny the same. In addition, Plaintiff/Counter-Defendant denies the admissibility
`
`and/or the veracity of the statements contained in Exhibit A.
`
`15.
`
`Zhou Hongyi was the photographer of the following three (3) photographs that were
`
`provided to a clothing supplier who hired the Photography Business.
`
`///
`
`///
`
`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
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`5
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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”
`
`ANSWER: Denied. Plaintiff/Counter-Defendant lacks knowledge or information sufficient
`
`to form a belief as to the truth of allegations in Paragraph 15 of the Counterclaims, and therefore
`
`deny the same.
`
`16.
`
`The Photography Business did not assign, license, or otherwise authorize use of these
`
`photographs to the Plaintiff/Counter-Defendant. Based on the First Photography Business’ business
`
`records, the file properties for the originals of Photographs 1, 2 and 3, and/or Zhou Hongyi’s
`
`recollection, Zhou Hongyi took Photograph 1 on July 28, 2023, Photograph 2 on August 1, 2023, and
`
`Photograph 3 on August 3, 2023. See Exhibit C.
`
`ANSWER: Denied. Plaintiff/Counter-Defendant lacks knowledge or information sufficient
`
`to form a belief as to the truth of the allegations in Paragraph 16 of the Counterclaims, and therefore
`
`deny the same. In addition, Plaintiff/Counter-Defendant denies the admissibility and/or the
`
`veracity of the statements contained in Exhibit C.
`
`17.
`
`Xu Yujie is a photographer who works for Guangzhou Zihe Culture Media Co.,
`
`Ltd. located at Dashi Street, Panyu District, Guangzhou China (“Second Photography Business”).
`
`Part of Xu Yujie’s job involves taking photographs of models wearing clothing products supplied
`
`by clothing suppliers. These clothing suppliers hire the Second Photography Business to take such
`
`photographs for them. These clothing suppliers supply clothing products to online stores and
`
`provide such photographs to these stores so that the stores can display the photographs in
`
`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.
`
`ANSWER: Denied. Plaintiff/Counter-Defendant
`
`lacks knowledge or
`
`information
`
`sufficient to form a belief as to the truth of the allegations in Paragraph 17 of the Counterclaims,
`
`and therefore deny the same. In addition, Plaintiff/Counter-Defendant denies the admissibility
`
`and/or the veracity of the statements contained in Exhibit B.
`
`18.
`
`Xu Yujie was the photographer of the following photograph that was provided to a
`
`clothing supplier who hired the Second Photography Business:
`
`
`
`“Photograph 4” see Exhibit B
`
`ANSWER: Denied. Plaintiff/Counter-Defendant
`
`lacks knowledge or
`
`information
`
`sufficient to form a belief as to the truth of the allegations in Paragraph 18 of the Counterclaims,
`
`and therefore deny the same. In addition, Plaintiff/Counter-Defendant denies the admissibility
`
`and/or the veracity of the statements contained in Exhibit B.
`
`19.
`
`The Second Photography Business did not assign, license, or otherwise authorize
`
`use of this photograph to Plaintiff/Counter-Defendant. Based on the Second Photography
`
`Business’ business records, the file properties for the original of Photograph 4 and/or Xu Yujie’s
`
`recollection indicate it was taken on October 10, 2022. See Exhibit B.
`
`ANSWER: Denied. Plaintiff/Counter-Defendant
`
`lacks knowledge or
`
`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
`
`and/or the veracity of the statements contained in Exhibit B.
`
`FIRST COUNTERCLAIM
`(Declaratory Judgment of Invalid Copyrights for Fraud on the Copyright Office)
`
`The Dykema Defendants repeat, reallege and incorporate by reference herein its
`
`20.
`
`allegations contained in paragraphs 1 through 19, above.
`
`ANSWER: Counterclaim Defendant incorporates by reference its answers to preceding
`
`paragraphs 1 through 19 as though fully incorporated herein.
`
`21.
`
`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”).
`
`ANSWER: Admitted.
`
`22.
`
`Specifically, Plaintiff/Counter-Defendant accused Defendant SweatyRocks of
`
`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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`

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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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`
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
`
`on, among other things, the unauthorized display of copyright protected images that are contained
`
`in the thumbnail images included in the above depiction.
`
`23.
`
`In addition, Plaintiff/Counter-Defendant accused Defendant Verdusa of infringing
`
`the left photograph depicted below by Defendant Verdusa’s publication of Photograph 3.
`
`
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
`
`on, among other things, the unauthorized display of copyright protected images that are contained
`
`in the thumbnail images included in the above depiction.
`
`24.
`
`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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`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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`
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
`
`on, among other things, the unauthorized display of copyright protected images that are contained
`
`in the thumbnail images included in the above depiction.
`
`25.
`
`The subject matter of the Asserted Copyright Registrations appear to depict the
`
`same articles of clothing as that depicted in Photograph 1, Photograph 2, Photograph 3, and
`
`Photograph 4, respectively.
`
`ANSWER: Denied.
`
`26.
`
`The subject matter of the Asserted Copyright Registrations appear to depict the
`
`same models wearing the same clothing as that depicted in Photograph 1, Photograph 2,
`
`Photograph 3, and Photograph 4, respectively. On information and belief, the Dykema Defendants’
`
`clothing suppliers obtained the photographs that are the subject of the Asserted Copyright
`
`Registrations from the photography businesses and photographers who took Photograph 1,
`
`Photograph 2, Photograph 3, and Photograph 4.
`
`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
`
`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
`
`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
`
`allegations in Paragraph 26 of the Counterclaims, and therefore deny the same.
`
`27.
`
`Thus, on
`
`information and belief,
`
`these photography businesses and/or
`
`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
`
`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
`
`lacks knowledge or information sufficient to form a belief as to the truth of the remaining
`
`allegations in Paragraph 27 of the Counterclaims, and therefore deny the same.
`
`28.
`
`Accordingly, on information and belief, Plaintiff/Counter-Defendant is not the
`
`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.
`
`On information and belief, the Asserted Copyright Registrations are invalid and
`
`unenforceable because Plaintiff/Counter-Defendant wrongfully obtained the registrations through
`
`fraud upon the Copyright Office and because Plaintiff/Counter-Defendant wrongfully claims
`
`ownership of the Asserted Copyright Registrations.
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`ANSWER: Denied.
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`30.
`
`On
`
`information and belief, Plaintiff/Counter-Defendant made various
`
`misrepresentations to the Copyright Office within its applications for the Asserted Copyright
`
`Registrations including:
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`(a) Plaintiff/Counter-Defendant’s assertion that it is the author of the Asserted Copyright
`
`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: 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.
`
`On information and belief, in its applications for the Asserted Copyright
`
`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
`
`Office, such that the Copyright Office would rely on this material information, approve the
`
`application, and issue a copyright registration.
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`ANSWER: Denied.
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`32.
`
`Had
`
`the Copyright Office known
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`that
`
`the
`
`information submitted by
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`Plaintiff/Counter-Defendant in its applications for the Asserted Copyright Registrations regarding
`
`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.
`
`Therefore, Plaintiff/Counter-Defendant committed fraud on the Copyright Office
`
`by falsely representing that it is the author and owner of the Asserted Copyright Registrations with
`
`the intent to deceive.
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`ANSWER: Denied.
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`34.
`
`Based on the foregoing, the Dykema Defendants are entitled to a declaratory
`
`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: 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)
`
`The Dykema Defendants repeat, reallege and incorporate by reference herein its
`
`36.
`
`allegations contained in paragraphs 1 through 35, above.
`
`ANSWER: Counterclaim Defendant incorporates by reference its answers to preceding
`
`paragraphs 1 through 35 as though fully incorporated herein.
`
`37.
`
`There is an actual and justiciable controversy between the parties regarding the
`
`alleged copyright infringement.
`
`ANSWER: Admitted.
`
`38.
`
`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”).
`
`ANSWER: Admitted.
`
`39.
`
`Specifically, Plaintiff/Counter-Defendant accused Defendant SweatyRocks of
`
`infringing the left photographs depicted below by Defendant SweatyRocks’ publication of
`
`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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`
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
`
`on, among other things, the unauthorized display of copyright protected images that are contained
`
`in the thumbnail images included in the above depiction.
`
`40.
`
`In addition, Plaintiff/Counter-Defendant accused Defendant Verdusa of infringing
`
`the left photograph depicted below by Defendant Verdusa’s publication of Photograph 3.
`
`
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`ANSWER: Denied. Plaintiff/Counter-Defendant’s infringement claims for relief are based
`
`on, among other things, the unauthorized display of copyright protected images that are contained
`
`in the thumbnail images included in the above depiction.
`
`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: 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
`
`on, among other things, the unauthorized display of copyright protected images that are contained
`
`in the thumbnail images included in the above depiction.
`
`42.
`
`The subject matter of the Asserted Copyright Registrations appear to depict the
`
`same articles of clothing as that depicted in Photograph 1, Photograph 2, Photograph 3, and
`
`Photograph 4, respectively.
`
`ANSWER: Denied.
`
`43.
`
`The subject matter of the Asserted Copyright Registrations appear to depict the
`
`same models wearing the same clothing as that depicted in Photograph 1, Photograph 2,
`
`Photograph 3, and Photograph 4, respectively. On information and belief, the Dykema Defendants’
`
`clothing suppliers obtained the photographs that are the subject of the Asserted Copyright
`
`Registrations from the photography businesses and photographers who took Photograph 1,
`
`Photograph 2, Photograph 3, and Photograph 4.
`
`ANSWER: Denied.
`
`44.
`
`Thus, on
`
`information and belief,
`
`these photography businesses and/or
`
`photographers are the original authors of the photographs that are the subject of the Asserted
`
`Copyright Registrations.
`
`ANSWER: Denied.
`
`45.
`
`Accordingly, on information and belief, Plaintiff/Counter-Defendant is not the
`
`author of the photographs that are the subject of the Asserted Copyright Registrations.
`
`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
`
`
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`15
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`Case No. 1:24-CV-02939-MFK-BWJ
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`

`

`
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`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 16 of 23 PageID #:2401
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`ANSWER: Denied.
`
`46.
`
`Upon information and belief, therefore, Plaintiff/Counter-Defendant did not
`
`independently create the claimed work. Accordingly, the Asserted Copyright Registrations are not
`
`valid because the claimed work is not original and/or does not possess at least a minimum degree
`
`of creativity.
`
`ANSWER: Denied.
`
`47.
`
`Upon information and belief, the Asserted Copyright Registrations are also invalid
`
`because exact or near exact copies of the subject matter of the Asserted Copyright Registrations
`
`existed prior to Plaintiff/Counter-Defendant’s alleged creation and/or first publication date (“Prior
`
`Art Copies”).
`
`ANSWER: Denied.
`
`48.
`
`Upon
`
`information and belief, Plaintiff/Counter-Defendant had actual or
`
`constructive knowledge of the Prior Art Copies when filing for the Asserted Copyright
`
`Registrations at the United States Copyright Office and willfully did not disclose the Prior Art
`
`Copies.
`
`ANSWER: Denied.
`
`49.
`
`Based on the foregoing, the Dykema Defendants are entitled to a declaratory
`
`judgment pursuant to 28 U.S.C. § 2201 that the Asserted Copyright Registrations are invalid and
`
`unenforceable.
`
`ANSWER: Denied.
`
`THIRD COUNTERCLAIM
`(Unfair Competition)
`
`The Dykema Defendants repeat, reallege and incorporate by reference herein its
`
`50.
`
`allegations contained in paragraphs 1 through 49, above.
`
`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
`
`
`
`16
`
`Case No. 1:24-CV-02939-MFK-BWJ
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`

`

`
`
`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 17 of 23 PageID #:2402
`
`ANSWER: Counterclaim Defendant incorporates by reference its answers to preceding
`
`paragraphs 1 through 49 as though fully asserted herein.
`
`51.
`
`The Dykema Defendants are seeking to compete with Plaintiff/Counter-Defendant
`
`in the U.S. market for online clothing sales. Plaintiff/Counter-Defendant’s seeks to bar the Dykema
`
`Defendants from being able to visually display their respective clothing products to consumers on
`
`their respective internet stores. The Plaintiff/Counter-Defendant’s exclusionary conduct as alleged
`
`herein—whether or not such conduct constitutes a violation of the Sherman Act—has
`
`unreasonably interfered with the Dykema Defendants’ ability to compete in that market, is not
`
`protected by any privilege, and constitutes unfair competition in violation of the common law of
`
`the State of Illinois.
`
`ANSWER: Denied.
`
`52.
`
`As a direct and proximate result of Plaintiff/Counter-Defendant’s unlawful
`
`conduct, the Dykema Defendants have been injured and financially damaged in amounts to be
`
`determined at trial.
`
`ANSWER: Denied.
`
`53.
`
`The damages the Dykema Defendants have sustained and continue to sustain
`
`include, but are not limited to, the attorney’s fees and costs incurred in defending this litigation, as
`
`well as the forced diversion of resources away from other areas of the Dykema Defendants’
`
`respective businesses.
`
`ANSWER: Denied.
`
`54.
`
`Unless Plaintiff/Counter-Defendant is enjoined, it will continue to engage in the
`
`unlawful conduct alleged above. Further, unless the Court enjoins Plaintiff/Counter-Defendant’s
`
`unlawful conduct, the Dykema Defendants will continue to suffer irreparable harm to their
`
`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
`
`
`
`17
`
`Case No. 1:24-CV-02939-MFK-BWJ
`
`

`

`
`
`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 18 of 23 PageID #:2403
`
`respective businesses.
`
`ANSWER: Denied.
`
`FOURTH COUNTERCLAIM
`(Tortious Interference – Interference with Prospective Economic Advantage)
`
`The Dykema Defendants repeat, reallege and incorporate by reference herein its
`
`55.
`
`allegations contained in paragraphs 1 through 54, above.
`
`ANSWER: Counterclaim Defendant incorporates by reference its answers to preceding
`
`paragraphs 1 through 54 as though fully incorporated herein.
`
`56.
`
`Plaintiff/Counter-Defendant has inflicted intentional interference with prospective
`
`economic advantage through the wrongful inducement of Amazon to bar the Dykema Defendants
`
`from the continued sale of their respective clothing products, which are not protected by
`
`Plaintiff/Counter-Defendant’s Asserted Copyright Registrations. Furthermore, Plaintiff/Counter-
`
`Defendant’s freezing of the Dykema Defendants’ respective assets, including respective store
`
`accounts, has inflicted intentional interference with prospective economic advantage through the
`
`wrongful inducement of Amazon to bar the Dykema Defendants from the continued sale of
`
`clothing products that are not even depicted in the subject matter of the Asserted Copyright
`
`Registrations.
`
`ANSWER: Denied.
`
`57.
`
`This has caused intentional harm to the Dykema Defendants and acts as a causal
`
`connection between the Plaintiff/Counter-Defendant’s conduct and the actual harm to the Dykema
`
`Defendants.
`
`ANSWER: Denied.
`
`58.
`
`Unless Plaintiff/Counter-Defendant is enjoined, it will continue to engage in the
`
`unlawful conduct alleged above. Further, unless the Court enjoins Plaintiff/Counter-Defendant’s
`
`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
`
`
`
`18
`
`Case No. 1:24-CV-02939-MFK-BWJ
`
`

`

`
`
`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 19 of 23 PageID #:2404
`
`unlawful conduct, the Dykema Defendants will continue to suffer irreparable harm to its
`
`reputation, goodwill of its brand, and ongoing direct economic harm due to the continued bar of
`
`their respective products from sale and freezing of their assets, including respective store accounts.
`
`ANSWER: Denied.
`
`PRAYER FOR RELIEF
`
`59. WHEREFORE, the Dykema Defendants ask the Court for judgment as follows:
`
`A. That all relief sought by Plaintiff be denied;
`
`B. That Plaintiff’s claims be dismissed with prejudice;
`
`C. That the Dykema Defendants’ counterclaims be granted;
`
`D. That this Court declare that Plaintiff/Counter-Defendant’s copyrights are unenforceable
`
`and invalid on the grounds that they were fraudulently procured and/or the works are not
`
`copyrightable;
`
`E. That the Plaintiff/Counter-Defendant and/or the Copyright Office be directed to cancel
`
`the Asserted Copyright Registrations on the grounds that they were fraudulently procured and/or
`
`the works are not copyrightable;
`
`F. That the Dykema Defendants/Counter-Plaintiffs be awarded its costs and attorneys’ fees
`
`with respect to this action;
`
`G. That the Court adjudge and decree that the unlawful conduct alleged herein constitutes
`
`a violation of Illinois common law;
`
`H. That the Court grant permanent injunctive relief under the antitrust laws putting an end
`
`to Plaintiff/Counter-Defendant’s illegal conduct, depriving the Plaintiff/Counter-Defendant of the
`
`benefits of such conduct, and restoring competition to the marketplace;
`
`I. That the Court grant permanent injunctive relief based on Plaintiff/Counter-Defendant’s
`
`PLAINTIFF’S ANSWER TO DEFENDANTS’
`COUNTERCLAIMS AND AFFIRMATIVE DEFENSES
`
`
`
`19
`
`Case No. 1:24-CV-02939-MFK-BWJ
`
`

`

`
`
`Case: 1:24-cv-02939 Document #: 119 Filed: 07/12/24 Page 20 of 23 PageID #:2405
`
`unfair competition and interference with prospective economic advantage in violation of the
`
`common law of Illinois;
`
`J. That the Court award compensatory damages to the Dykema Defendants/Counter-
`
`Plaintiffs for Plaintiff/Counter-Defendant’s unfair competition and interference with prospective
`
`economic advantage in violation of the common law of the State of Illinois;
`
`K. That the Court award damages to the Dykema Defendants/Counter-Plaintiffs for
`
`Plaintiff/Counter-Defendant’s interference with prospective economic advantage;
`
`L. That the Dykema Defendants/Counter-Plaintiffs be awarded all damages it has sustained
`
`as a consequence of Plaintiff/Counter-

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