Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA389518
`ESTTA Tracking number:
`01/21/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92052559
`Defendant
`Innex, Inc.
`SANDY T WU
`CHIAO & WU LLP
`600 SOUTH LAKE AVENUE, SUITE 303
`PASADENA, CA 91106
`UNITED STATES
`swu@chiaowu.com
`Other Motions/Papers
`Sandy Wu
`swu@chiaowu.com, cchiao@chiaowu.com, awang@chiaowu.com
`/sandy wu/
`01/21/2011
`Motion In Response to Amended Petition for Cancellation-Retroduo.pdf ( 68
`pages )(1957680 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`Cancellation No.: 92052559
`
`Registration No.: 3,666,553
`Mark: RETRODUO
`
`}
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`)
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`I
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`Hyperkin, Inc.
`
`Petitioner,
`
`v.
`
`lnnex, Inc.
`
`Respondent.
`
`_?_j_j_j__l
`
`Trademark Trial and Appeal Board
`United States Patent and Trademark Office
`P.O. Box 1451
`
`Alexandria, Virginia 22313-1451
`
`MOTION IN RESPONSE TO AMENDED PETITION FOR CANCELLATION
`
`OF U.S. REGISTRATION NO. 3,666,553
`
`Respondent
`
`Innex,
`
`Inc.
`
`(hereinafter "Respondent” or "lnnex”), by its undersigned
`
`attorneys, hereby files its response to the amended petition for cancellation of U.S. registration
`
`no. 3,666,553, requesting that the Board not accept the amended petition and dismiss this
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`proceeding in its entirety with prejudice, or in the alternative, suspend this cancellation
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`proceeding during the pendency of a district court proceeding that
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`involves the same
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`RETRODUO mark.
`
`This cancellation proceeding should be dismissed because Petitioner Hyperkin Inc.
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`(hereinafter "Petitioner" or "Hyperkin”) continues to fail to allege appropriate grounds for
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`cancellation. Moreover,
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`this cancellation proceeding should be dismissed or suspended
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`because there is pending district court litigation involving the mark at issue.
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`In further support
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`of its Motion, Respondent alleges as follows:
`
`Motion in Response to Amended Petition for Cancellation
`
`of U.S. Registration No. 3,666,553
`Page 1
`
`

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`I. STATEMENT OF FACTS.
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`Respondent has used the mark RETRODUO since at
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`least February 2007, and has
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`prominently displayed the mark in advertising and marketing its goods. Respondent applied for
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`registration of the mark RETRODUO with the United States Patent and Trademark Office
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`("PTO”) on February 2, 2009. Registration of the RETRODUO mark with the PTO was finalized
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`on August 11, 2009, as Registration No. 3666553.
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`The RETRODUO mark is registered for the following goods: "Video game consoles for
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`use with an external display screen or monitor; video game controllers.” These goods include
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`twin video game systems. Respondent
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`is the owner of this registration and all
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`rights
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`thereunder.
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`in or about April/May 2010, Respondent became aware that Petitioner was using the
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`designations RETRON and RETRO TWIN in connection with gaming consoles, controllers and
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`accessories. On or about May 11, 2010, Respondent sent a letter to Petitioner, notifying
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`Petitioner of Respondent's rights in its trademarks and demanding that Petitioner cease using
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`RETRO TWIN and RETRON in connection with its gaming consoles, controllers and accessories.
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`On or about June 15, 2010, Petitioner filed this cancellation proceeding. Then, on or
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`about June 16, 2010, Petitioner responded to Respondent's May 11 letter. Respondent filed a
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`lawsuit for trademark infringement in July 2010. Respondent also filed a motion to dismiss, or
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`alternatively suspend, this cancellation proceeding.
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`In the Board's decision of November 23, 2010, it provided Petitioner 30 days to file its
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`response to the amended petition for cancellation. The Board also stated as follows in
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`connection with the motion to dismiss/suspend this cancellation proceeding: "To aid the Board
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`in ascertaining whether suspension would be appropriate, at such time as the parties file their
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`respective amended pleadings, they should also file a copy of any further pleadings which have
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`been filed in the pending civil action.”
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`On or about December 23, 2010, Petitioner filed an amended petition for cancellation,
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`purporting to correct the deficiencies in its original petition for cancellation.
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`Motion in Response to Amended Petition for Cancellation
`
`of Us. Registration No. 3,666,553
`Page 2
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`

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`Respondent files this motion in response to the amended petition for cancellation
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`within the 30-day period allotted by the Board.
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`Moreover, Respondent submits herewith as Exhibit A a copy of the documents filed in
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`the pending District Court proceeding. These documents include but are not
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`limited to,
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`Defendant/Counter—p|aintiff’s Answer and Counterclaims, Plaintiff's/Counter-defendant's Rule
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`26(a)(1) Initial Disclosures, and Defendant/Counter-plaintiff's Rule 26(a)(1) Initial Disclosures
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`that were filed in the District Court proceeding.
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`ll. ARGUMENT.
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`A.
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`THIS CANCELLATION PROCEEDING SHOULD BE DISMISSED TO THE EXTENT
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`THAT IT FAILS TO STATE A CLAIM UPON WHICH RELIEF MAY BE GRANTED.
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`Petitioner continues to advance the improper theory of trademark misuse as a ground
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`for cancellation of the RETRODUO mark.
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`The theory of trademark misuse based on
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`overextending trademark rights as a ground for trademark cancellation has been rejected. See
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`Helene Curtis Indus. v. Milo Corp., No. 84 C 5217, 1985 WL 1282, at *3 (N.D. Ill. May 2, 1985).
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`Accordingly, to the extent that Petitioner has not advanced a cognizable theory for cancellation
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`of Respondent's federal trademark registration, Respondent requests that the proceeding be
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`dismissed.
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`Petitioner purports to advance the theories of fraud and descriptiveness as grounds for
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`cancellation of the RETRODUO mark.
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`Since Petitioner was spoon-fed the appropriate
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`allegations to make based on the Board's November 23, 2010 decision, it has attempted to
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`parrot those allegations in its Amended Petition. However, it is clear that these new assertions
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`are merely restatements of its improper trademark misuse allegations.
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`For example,
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`in
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`paragraph 3, Petitioner attempts to parrot the grounds for descriptiveness set forth by the
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`Board. However, if we get to the gist of Petitioner's complaint in paragraph 7, we see that the
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`real ground for the complaint is trademark misuse. More particularly, Petitioner provides as
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`follows: "Respondent is attempting to misuse this registration to prevent others in the same
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`industry from using the descriptive term ’RETRO."’ Moreover, in connection with paragraph 11,
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`Petitioner provides as follows: "Respondent is attempting to misuse this registration to prevent
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`others in the same industry from using the descriptive term ’DUO.’”
`
`Motion in Response to Amended Petition for Cancellation
`
`of U.S. Registration No. 3,666,553
`Page 3
`
`

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`Petitioner should not be permitted to waste the Board's resources and Respondent's
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`resources through an improper cause of action——no matter how it tries to disguise its claims.
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`As for Petitioner's remaining claim of fraud, it is basically a regurgitation of the above-
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`referenced misuse/descriptiveness claim. More particularly, Petitioner provides in paragraph
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`13 that "[b]y failing to disclose the descriptive nature of Respondent’s RETRODUO mark and the
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`true nature of Respondent's goods, Respondent intentionally withheld material information
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`from the PTO that would otherwise bar registration ofthe RETRODUO mark.”
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`Because Petitioner unsuccessfully attempts to cloak its improper trademark misuse
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`allegations under the guise of a proper cause of action, the Amended Petition does not correct
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`the deficiencies of the original petition and should therefore, not be accepted. This proceeding
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`should be dismissed with prejudice in its entirety.
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`B.
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`RESPONDENT
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`REQUESTS
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`DISMISSAL
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`BECAUSE
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`THIS
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`CANCELLATION
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`PROCEEDING CAN BE HEARD IN THE PENDING DISTRICT COURT LITIGATION.
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`Assuming Petitioner stated appropriate grounds for cancellation in its Amended
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`Petition, its claims could be heard in the pending district court litigation. Section 14 of the
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`Lanham Act permits an administrative proceeding within the USPTO where a party can petition
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`to cancel a registered trademark. See 15 U.S.C. 1064. However, federal courts have concurrent
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`jurisdiction with the USPTO to hear proceedings to cancel a mark, so long as the challenge
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`arises from an existing trademark-related proceeding, as a result of Sec. 37 of the Lanham Act.
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`See 15 U.S.C. 1119. Section 37 provides that a court may order the cancellation of a trademark
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`registration “[i]n any action involving a registered trademark." Accordingly, the present
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`cancellation issues can be heard in the pending district court litigation.
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`A trademark infringement lawsuit between Innex and Hyperkin involving the RETRODUO mark
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`at issue has been filed in the United States District Court, Central District of California, Western Division.
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`(A copy of the Complaint was attached to Respondent's Motion to Dismiss Cancellation Proceeding
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`for U.S. Registration No. 3,666,553 and in the Alternative, Motion to Suspend Cancellation
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`Proceedings. A file-stamped front page for the Complaint was attached thereto; it showed the
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`case number as CV10 5449-RGK (VBKx)).
`
`Motion in Response to Amended Petition for Cancellation
`
`of U.S. Registration No. 3,666,553
`Page 4
`
`

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`Accordingly, even if the Board finds that Petitioner has stated a claim upon which
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`relief may be granted, the District Court lawsuit involves the same parties as well as the same
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`subject matter as the present cancellation proceeding.
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`In fact, Respondent notified Petitioner
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`of its potential claims in its May 11 letter. Respondent respectfully requests that this
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`proceeding be dismissed because issues related to cancellation can be addressed in the district
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`court lawsuit. Such a dismissal would also conserve the Board’s resources.
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`In the interest of conserving the Board’s resources, and in the interest of avoiding
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`inconsistent rulings, Respondent respectfully requests that this court dismiss this cancellation
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`proceeding in its entirety.
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`C.
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`RESPONDENT REQUESTS SUSPENSION OF THIS CANCELLATION PROCEEDING
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`BECAUSE THE FEDERAL DISTRICT COURT LITIGATION INVOLVES THE RETRODUO MARK AND
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`MAY HAVE A BEARING ON THIS CANCELLATION PROCEEDING.
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`At a minimum, this proceeding should be suspended based on the pending district
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`court litigation because it involves common issues and the decision of the district court is often
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`binding on the Board. More particularly, 37 CFR 2.117(a) provides as follows: "Whenever it
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`shall come to the attention of the Trademark Trial and Appeal Board that a party or parties to a
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`pending case are engaged in a civil action or another Board proceeding which may have a
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`bearing on the case, proceedings before the Board may be suspended until termination of the
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`civil action or the other Board proceeding.” In addition, 37 CFR 2.117(c) provides as follows:
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`“Proceedings may also be suspended, for good cause, upon motion or a stipulation of the
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`parties approved by the Board."
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`"To the extent that a civil action in a Federal district court involves issues in common
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`with those in a proceeding before the Board, the decision of the Federal district court is often
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`binding upon the Board, while the decision of the Board is not binding upon the court.” See
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`TBMP 510.02 (a), citing Goya Foods inc. v. Tropicana Products Inc, 846 F.2d 848, 6 USPQ2d
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`1950, 1954 (2d Cir. 1988).
`
`Respondent respectfully requests that this proceeding be suspended pending the
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`outcome of the district court litigation. The Board is often bound by a district court decision
`
`Motion in Response to Amended Petition for Cancellation
`
`of U.S. Registration No. 3,666,553
`Page 5
`
`

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`while the reverse is not true. Such a suspension would conserve the Board's resources and
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`prevent inconsistent rulings.
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`WHEREFORE, Respondent respectfully requests that the Board dismiss this cancellation
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`proceeding in its entirety or suspend the cancellation proceedings during the pendency of the
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`federal district court litigation.
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`Dated: January 21, 2011
`
`By:
`
`Respectfully submitted,
`
`CHIAO 8: WU, LLP
`
`Sandy T.
`
`CHIAO & WU, LLP
`
`600 S. Lake Avenue, Suite 303
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`Pasadena, CA 91106
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`Telephone: (626) 698-0088
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`Fax: (626) 698-0068
`
`Attorneys for Respondent
`Innex, Inc.
`
`Motion in Response to Amended Petition for Cancellation
`
`of U.S. Registration No. 3,666,553
`Page 6
`
`

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`CERTIFICATE OF TRANSMITTAL
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`I hereby certify that a true copy of the foregoing MOTION IN RESPONSE TO AMENDED
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`PETITION FOR CANCELLATION OF U.S. REGISTRATION NO. 3,666,553 is being filed electronically
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`with the TTAB via ES'|'|'A on this day, January 21, 2011.
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`By:
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on this 21st day oflanuary 2011, the foregoing
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`MOTION IN RESPONSE TO AMENDED PETITION FOR CANCELLATION OF U.S. REGISTRATION N0.
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`3,666,553 was served on counsel for the Petitioner Hyperkin, Inc. by depositing same with the
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`United States Postal Service as first class mail, postage prepaid, addressed as follows:
`
`Audrey L. Khoo
`
`Chang 8: Cote, LLP
`
`19138 E. Walnut Dr. North, Ste. 100
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`Rowland Heights, CA 91748
`
`
`
`Motion in Response to Amended Petition for Cancellation
`
`of U.S. Registration No. 3,666,553
`Page 7
`
`

`
`Exhibit “A”
`
`

`
`{Jase
`
`10—cv-05449-RGK-VBK DoCument8
`
`Filed O8/20/10 Pagei of 36 Page 3D #:30
`
`2
`
`1 Rodne W. Bell (SBN 125314)
`glrbeli
`changcotecomg
`ravls . Tom (SBN 1 8711)
`(ttom@chaII2ficote.co1I1\rl1)
`3 Audrey L.
`oo (SB 254007)
`akhoogchanscotecorn)
`HAN &C T L_LP
`4
`19138 E. Walnut
`rive North, Suite 100
`5 Rowland Hei hts CA 91743
`«
`Telephone:
`62
`854-2112
`6 Facsimile:
`62 )854~2120
`7 Attorneys for Defendant and Counter—
`8 Claimant, HYPERKJN, INC.
`
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`UNITED STATES DISTRICT COURT
`
`CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
`
`_
`
`INNEX, INC., a California Corporation, Case No. CV10 - 5449 RGK (VBKX)
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`Plainrzfif
`
`vs.
`
`15 HYPERKIN, INC., a California
`16 Corporation,
`17
`18
`
`Defendant.
`
`HYPERKIN, INC. a California
`19 Corporation,
`
`Counter-Claimant,
`
`20
`
`31
`
`22
`
`vs.
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`INNEX INC. a California Corporation;
`23 and ROES 1 through 10, lnclusive,
`
`C'ounter—Defendants,
`
`9-4
`
`25
`
`26
`27
`
`28
`
`
`
`DEFENDANT HYPERKIN INC.’S
`ANSWER TO PLAINTIFF INNEX,
`INC.’S COMPLAINT AND
`COUNTERCLAIMS
`
`DEMAND FOR JURY TRIAL
`
`-—
`
`9;.
`E
`
`I"
`
`-1-
`HYPERKIN. INC.’S ANSWER TO PLAINTIFF INNEX. INC.'S COMPLAINT AND COUNTERCLAIMS
`
`

`
`Case
`
`10-CV-05449-RGK~VBK Document 8
`
`Filed 08/20/10 Page 2 of 36 Page ID #131
`
`Defendant
`
`I-Iyperkin,
`
`Inc.
`
`(“Hyperkin” or “Defendant”)
`
`answers
`
`the
`
`Complaint of Plaintiff Innex, Inc. (“Innex” or “P1aintiff’) as follows:
`
`PARTIES
`
`1.
`
`In response to paragraph 1 of the Complaint, Defendant does not
`
`contest the principal place of business of Innex. Except as expressly admitted or
`
`qualified, Defendant denies each and every allegation of paragraph 1 of the
`
`Complaint.
`
`2.
`
`In response to paragraph 2 of the Complaint, Defendant admits the
`
`allegations contained therein.
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`JURISDICTION AND VENUE
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`3.
`
`In response to paragraph 3 of the Complaint, Defendant does not
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`contest this Court has subject matter jurisdiction pursuant to 28 U.S.C.§ 1338(a).
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`Except as expressly admitted or qualified, Defendant denies each and every
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`allegation of paragraph 3 of the Complaint.
`
`4.
`
`In response to paragraph 4 of the Complaint, Defendant does not
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`contest that venue is properly laid in this Judicial District pursuant to 28 U.S.C.§
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`1391(1)) and (c). Except as expressly admitted or qualified, Defendant denies each
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`and every allegation of paragraph 4 of the Complaint.
`
`GENERAL ALLEGATIONS
`
`_
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`5.
`
`In response to paragraph 5 of the Complaint, Defendant lacks sufficient
`
`knowledge or information to form a belief as to the truth of the allegations contained
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`therein and therefore denies them.
`
`6.
`
`In response to paragraph 6 of the Complaint, Defendant lacks sufficient
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`knowledge or information to form a belief as to the truth of the allegations contained
`
`therein and therefore denies them.
`
`7.
`
`In response to paragraph 7 of the Complaint, Defendant lacks sufficient
`
`knowledge or information to form a belief as to the truth of the allegations contained
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`therein and therefore denies them.
`
`\-D00--JO\U’I-I’-‘I-U-ll\)
`
`10
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`11
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`12
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`13
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`14
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`15
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`26
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`27
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`28
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`HYPERKIN. INC.’S ANSWER TO PLAINTIFF INNE.-X. INC.’S COMPLAINT AND COUNTERCLAIMS
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`

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`
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`therein and therefore denies them.
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`10.
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`In response to paragraph" 10 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`contained therein and therefore denies them.
`
`11.
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`In response to paragraph 11 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`12 contained therein and therefore denies them.
`
`13
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`14
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`12.
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`In response to paragraph 12 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`15 contained therein and therefore denies them.
`
`16
`
`17
`
`1 8
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`l 9
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`20
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`13.
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`In response to paragraph 13 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`contained therein and therefore denies them.
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`14.
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`In response to paragraph 14 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`21
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`contained therein and therefore denies them.
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`22
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`23
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`24
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`25
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`26
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`27
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`28
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`15.
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`In response to paragraph 15 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`contained therein and therefore denies them.
`
`16.
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`In response to paragraph 16 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`contained therein and therefore denies them.
`
`-3-
`HYPERKIN. INC.’S ANSWER TO PLAINTIFF INNEX. INC.’S COMPLAINT AND COUNTERCLAIMS
`
`:10-cv-05449-RGK-VBK Document 8
`
`Filed 0820/10 Page 3 of 36 Page ID #132
`
`8.
`In response to paragraph 8 of the Complaint, Defendant lacks sufficient
`knowledge or information to form a belief as to the truth of the allegations contained
`
`therein and therefore denies them.
`
`9.
`
`In response to paragraph 9 of the Complaint, Defendant lacks sufficient
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`knowledge or information to form a belief as to the truth of the allegations contained
`
`\O®‘--JCJ\U'I-P-
`
`10
`
`11
`
`

`
`
`
`KDOO--JONUI-hL»Jl\-3
`
`10
`
`ll
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`26
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`27
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`23
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`Complaint.
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`22.
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`In response to paragraph 22 of the Complaint, Defendant denies the
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`allegations contained therein.
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`23.
`
`In response to paragraph 23 of the Complaint, Defendant admits that it
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`received a letter dated May 11, 2010 from Plaintiffs counsel demanding that
`Defendant cease using RETRO TWIN and that Defendant continued using RETRO
`TWIN and RETRON after the date of the letter. Except as expressly admitted or
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`qualified, Defendant denies each and every allegation of paragraph 23 of the
`
`Complaint.
`
`24.
`
`In response to paragraph 24 of the Complaint, Defendant admits that
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`certain design features of the items identified therein are similar where ergonomics
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`and/or product functionality dictate a certain design. Except as expressly admitted
`
`HYPERKIN. INC.’S ANSWER TO PLAINTIFF INI-\lE-X. INC.‘S COMPLAINT AND COUNTERCLAIMS
`
`:10-cv-05449-RGK-VBK Document8
`
`Filed os/20/10 Page4of36 PageiD #;33
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`17.
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`In response to paragraph 17 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`contained therein and therefore denies them.
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`18.
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`In response to paragraph 18 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`contained therein and therefore denies them.
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`19.
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`In response to paragraph 19 of the Complaint, Defendant admits the
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`allegations contained therein.
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`20.
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`In response to paragraph 20 of the Complaint, Defendant does not
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`contest that it has marketed and is currently marketing its video game consoles and
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`accessories. Except as expressly admitted or qualified, Defendant denies each and
`every allegation ofparagraph 20 of the Complaint.
`2
`21.
`In response to paragraph 21 of the Complaint, Defendant admits that it
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`used the designations RETRO TWIN and RETRON. Except as expressly admitted
`
`or qualified, Defendant denies each and every allegation of paragraph 21 of the
`
`

`
`Case
`
`:10-cv-O5449~RGK—VBK Document 8
`
`Filed 08/20/10 Page 5 of 36 Page ID #234
`
`or qualified, Defendant denies each and every allegation of paragraph 24 of the
`
`Complaint.
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`25.
`
`In response to paragraph 25 of the Complaint, Defendant is unable to
`
`discern whose or which “scheme and overall image and the like” the allegations
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`refer to, and therefore denies them.
`
`26.
`
`In response to paragraph 26 of the Complaint, Defendant
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`lacks
`
`sufficient knowledge or information to form a belief as to the truth of the allegations
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`contained therein and therefore denies them.
`
`27.
`
`In response to paragraph 27 of the Complaint, Defendant
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`lacks
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`sufficient knowledge or information to form a belief as to the truth of the allegations
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`contained therein and therefore denies them.
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`28.
`
`In response to paragraph 28 of the Complaint, Defendant
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`lacks
`
`sufficient knowledge or information to form a belief as to the truth of the allegations
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`contained therein and therefore denies them.
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`29.
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`In response to paragraph 29 of the Complaint, Defendant denies the
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`allegations contained therein.
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`30.
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`In response to paragraph 30 of the Complaint, Defendant admits that
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`customers can become repeat customers. Except as expressly admitted or qualified,
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`Defendant denies each and every allegation of paragraph 30 of the Complaint.
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`31.
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`In response to paragraph 31 of the Complaint, Defendant denies the
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`allegations contained therein.
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`32.
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`In response to paragraph 32 of the Complaint, Defendant denies the
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`allegations contained therein.
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`FIRST CLAIM FOR RELIEF
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`(Trademark Infringement Under Federal Law-—Injunctive Relief and Damages)
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`33.
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`In response to paragraph 33 of the Complaint, Defendant incorporates
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`by reference paragraphs 1 through 32 as though fully set forth herein. Except as
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`HYPERKIN. INC.’S ANSWER TO PLAINTIFF INNEX. INC.’S COMPLAINT AND COUNTERCLAIMS
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`:10—cv-05449—RGK-VBK Document 8
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`Filed 08/20/10 Page 6 of 36 Page ID #135
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`expressly admitted or qualified, Defendant denies each and every allegation of
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`paragraph 33 of the Complaint.
`34.
`In response to paragraph 34 of the Complaint, Defendant denies the
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`allegations contained therein.
`35.
`In response to paragraph 35 of the Complaint, Defendant denies the
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`allegations contained therein.
`36.
`In response to paragraph 36 of the Complaint, the averments contained
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averments of paragraph 36.
`37.
`In response to paragraph 37 of the Complaint, the averments contained
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averments ofparagraph 37.
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`SECOND CLAIM FOR RELIEF
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`(Trade Dress Infringement Under Federal Law)
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`38.
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`In response to paragraph 38 of the Complaint, Defendant incorporates
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`by reference paragraphs 1 through 37 as though fully set forth herein. Except as
`expressly admitted or qualified, Defendant denies each and every allegation of
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`paragraph 38 of the Complaint.
`39.
`In response to paragraph 39 of the Complaint, the averments contained
`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averments ofparagraph 39.
`40.
`In response to paragraph 40 of the Complaint, Defendant denies the
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`allegations contained therein.
`41.
`In response to paragraph 41 of the Complaint, the averrnents contained
`therein are conclusions of law to which no response is required. To the extent a
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`HYPERKIN. INC.’S ANSWER TO PLAINTIFF INI:lE:X. INC.’S COMPLAINT AND COUNTERCLAIMS
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`1' Case :1_0-cv-05449—RGK-VBK Document8
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`Filed 08/20/10 Page7of 36 Page ID #236
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`42.
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`In response to paragraph 42 of the Complaint, the averrnents contained
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averments of paragraph 42.
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`43.
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`In response to paragraph 43 of the Complaint, the averments contained
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averments of paragraph 43.
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`THIRD CLAIM FOR RELIEF
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`(False Designation of Origin Under Federal Law)
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`44.
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`In response to paragraph 44 of the Complaint, Defendant incorporates
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`by reference paragraphs 1 through 43 as though fiilly set forth herein. Except as
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`expressly admitted or qualified, Defendant denies each and every allegation of
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`paragraph 44 of the Complaint.
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`45.
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`In response to paragraph 45 of the Complaint, Defendant denies the
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`allegations contained therein.
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`46.
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`In response to paragraph 46 of the Complaint, Defendant denies the
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`allegations contained therein.
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`47.
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`In response to paragraph 47 of the Complaint, the averments contained
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averments of paragraph 47.
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`48.
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`In response to paragraph 48 of the Complaint, the averments contained
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averments of paragraph 48.
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`49.
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`In response to paragraph 49 of the Complaint, the avennents contained
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averments of paragraph 49.
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`I / /
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`///
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`\£>%‘-JON
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`HYPERKIN. INC.'S ANSWER TO PLAINTIFF INIZTE-X. }NC.’S COMPLAINT AND COUNTERCLAIMS
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`:10-CV-05449-RGK-VBK Document 8
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`Filed 08/20/10 Page 8 of 36 Page ID #'37
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`FOURTH CLAIM FOR RELIEF
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`(Violation of California Bus. & Prof. C.§ 17200 et seq.)
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`50.
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`In response to paragraph 50 of the Complaint, Defendant incorporates
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`by reference paragraphs 1 through 49 as though fully set forth herein. Except as
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`expressly admitted or qualified, Defendant denies each and every allegation of
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`paragraph 50 of the Complaint.
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`51.
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`In response to paragraph 51 of the Complaint, Defendant denies the
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`allegations contained therein. To the extent Defendant has admitted acts alleged
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`herein, Defendant denies they constitute unfair competition within the meaning of
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`California Bus. & Prof. C.§ 17200 et seq.
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`52.
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`In response to paragraph 52 of the Complaint, the averrnents contained
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averrnents of paragraph 52.
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`53.
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`In response to paragraph 53 of the Complaint, Defendant denies it
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`committed illegal acts and therefore denies this paragraph in its entirety.
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`FIFTH CLAIM FOR RELIEF
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`(Common Law Unfair Competition)
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`54.
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`In response to paragraph 54 of the Complaint, Defendant incorporates
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`by reference paragraphs 1 through 53 as though fully set forth herein. Except as
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`expressly admitted or qualified, Defendant denies each and every allegation of
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`\O0O‘-4ONUI-ItU-Jitx.)
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`55.
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`In response to paragraph 55 of the Complaint, Defendant denies the
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`allegations contained therein. To the extent Defendant has admitted acts alleged
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`herein, Defendant denies they constitute common law unfair competition within the
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`meaning of California Bus. & Prof. C.§17200 et seq.
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`56.
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`In response to paragraph 56 of the Complaint, the avennents contained
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`therein are conclusions of law to which no response is required. To the extent a
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`28 response is deemed required, Defendant denies the averments ofparagraph 56.
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`I-IYPERKIN. INC.’S ANSWER TO PLAINTIFF INNF.-X. INC.’S COMPLAINT AND COUNTERCLAIMS
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`Case :10-CV-05449-RGK—VBK Document 8
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`Filed 08l20l10 Page 9 of 36 Page ID #'38
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`SIXTH CLAIM FOR RELIEF
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`(Violation of California Bus. & Prof. C.§ 14330)
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`57.
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`In response to paragraph 57 of the Complaint, Defendant incorporates
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`by reference paragraphs 1 through 56 as though fully set forth herein. Except as
`expressly admitted or qualified, Defendant denies each and every allegation of
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`paragraph 57 of the Complaint.
`58.
`In response to paragraph 58 of the Complaint, Defendant denies the
`
`allegations contained therein.
`In response to paragraph 59 of the Complaint, Defendant denies the
`allegations contained therein. To the extent Defendant has admitted acts alleged
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`59.
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`herein, Defendant denies they violate California Bus. & Prof. C.§ 14330.
`In response to paragraph 60 of the Complaint, the averments contained
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`60.
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averments of paragraph 60.
`In response to paragraph 61 of the Complaint, the averments contained
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`61.
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averrnents ofparagraph 61.
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`SEVENTH CLAEI FOR RELIEF
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`(Interference with Contractual Relations)
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`62.
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`In response to paragraph 62 of the Complaint, Defendant incorporates
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`by reference paragraphs 1 through 61 as though fully set forth herein. Except as
`expressly admitted or qualified, Defendant denies each and every allegation of
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`paragraph 62 of the Complaint.
`63.
`In response to paragraph 63 of the Complaint, Defendant admits the
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`allegations contained therein.
`64.
`In response to paragraph 64 of the Complaint, Defendant denies the
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`allegations contained therein.
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`\OOO*-JONLA-BLJJIN3
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`HYPERKIN. l'NC.’S ANSWER TO PLAINTIFF IN1;ll':‘.-X. INC.‘S COMPLAINT AND COUNTERCLAIMS
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`EIGHTH CLAIM FOR RELIEF
`
`(Interference with Prospective Economic Advantage)
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`68.
`
`In response to paragraph 68 of the Complaint, Defendant incorporates
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`by reference paragraphs 1 through 67 as though fully set forth herein. Except as
`expressly admitted or qualified, Defendant denies each and every allegation of
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`paragraph 68 of the Complaint.
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`69.
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`In response to paragraph 69 of the Complaint, Defendant admits the
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`allegations contained therein.
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`70.
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`In response to paragraph 70 of the Complaint, Defendant denies the
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`allegations contained therein.
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`71.
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`In response to paragraph 71 of the Complaint, Defendant denies the
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`allegations contained therein.
`72.
`In response to paragraph 72 of the Complaint, the averments contained
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`therein are conclusions of law to which no response is required. To the extent a
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`22 response is deemed required, Defendant denies the averments of paragraph 72.
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`-PRAYER FOR RELIEF
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`73.
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`In response to paragraph 1 of the Prayer for Relief, no material
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`allegations are contained therein, thus no answer is required with respect to this
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`paragraph. To the extent this Court finds paragraph 1 contains allegations requiring
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`a response, Defendant denies each and every allegation contained therein.
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`HYPERKIN. lNC.’S ANSWER TO PLAINTIFF
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`INC.’S COMPLAINT AND COUNTERCLAIMS
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`10-CV-05449-RGK-VBK Document 8
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`Filed 08/20/10 Page 10 of 36 Page ID #:39
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`65.
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`In response to paragraph 65 of the Complaint, Defendant denies the
`
`allegations contained therein.
`66.
`In response to paragraph 66 of the ‘Complaint, the averments contained
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`therein are conclusions of law to which no response is required. To the extent a
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`response is deemed required, Defendant denies the averrnents of paragraph 66.
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`67.
`
`In response to paragraph 67 of the Complaint, Defendant denies the
`
`allegations contained therein.
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`KDOO--JON
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`10 allegations are contained therein, thus no answer is required with respect to this
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`11 paragraph. To the ext