Case 8:21-cv-01424-PX Document 10 Filed 07/30/21 Page 1 of 9
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MARYLAND
`
`CASE NO.: 8:21-cv-01424-PX
`
`DEFENDANTS MARRIOTT
`INTERNATIONAL, INC.’S AND
`ETMA, INC.’S ANSWER TO
`COMPLAINT
`
`DEMAND FOR JURY TRIAL
`
`)))))))))))))))
`
`NICO TRINKHAUS,
`Plaintiff,
`
`v.
`MARRIOTT INTERNATIONAL, INC.
`and
`ETMA, INC. d/b/a PLACEPASS,
`Defendants.
`
`Defendants Marriott International, Inc. (“Marriott”) and ETMA, Inc. d/b/a PlacePass
`
`(“PlacePass”), (collectively, “Defendants”), by and through their undersigned attorneys, answer
`
`the Complaint of Plaintiff Nico Trinkhaus (“Trinkhaus”) as follows:
`
`INTRODUCTION
`
`1.
`
`Defendants admit that this action seeks to recover damages for alleged copyright
`
`infringement.
`
`2.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 2 of the Complaint and on that basis deny them.
`
`3.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 3 of the Complaint and on that basis deny them.
`
`4.
`
`Defendant PlacePass admits that it owns and/or operates the website at
`
`www.activities.marriott.com. Defendants otherwise deny the allegations in Paragraph 4 of the
`
`Complaint.
`
`5.
`
`Defendants deny the allegations in Paragraph 5 of the Complaint.
`
`
`
`UNITED STATES DISTRICT COURT
`DISTRICT OF MARYLAND
`
`CASE NO.: 8:21-cv-01424-PX
`
`DEFENDANTS MARRIOTT
`INTERNATIONAL, INC.’S AND
`ETMA, INC.’S ANSWER TO
`COMPLAINT
`
`DEMAND FOR JURY TRIAL
`
`)))))))))))))))
`
`NICO TRINKHAUS,
`Plaintiff,
`
`v.
`MARRIOTT INTERNATIONAL, INC.
`and
`ETMA, INC. d/b/a PLACEPASS,
`Defendants.
`
`Defendants Marriott International, Inc. (“Marriott”) and ETMA, Inc. d/b/a PlacePass
`
`(“PlacePass”), (collectively, “Defendants”), by and through their undersigned attorneys, answer
`
`the Complaint of Plaintiff Nico Trinkhaus (“Trinkhaus”) as follows:
`
`INTRODUCTION
`
`1.
`
`Defendants admit that this action seeks to recover damages for alleged copyright
`
`infringement.
`
`2.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 2 of the Complaint and on that basis deny them.
`
`3.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 3 of the Complaint and on that basis deny them.
`
`4.
`
`Defendant PlacePass admits that it owns and/or operates the website at
`
`www.activities.marriott.com. Defendants otherwise deny the allegations in Paragraph 4 of the
`
`Complaint.
`
`5.
`
`Defendants deny the allegations in Paragraph 5 of the Complaint.
`
`
`
`Case 8:21-cv-01424-PX Document 10 Filed 07/30/21 Page 2 of 9
`
`PARTIES
`
`6.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 6 of the Complaint and on that basis deny them.
`
`7.
`
`Defendant Marriott admits that Marriott is a Delaware Corporation with a principal
`
`place of business at 10400 Fernwood Road, Bethesda, Maryland 20817 in Montgomery County,
`
`Maryland. Defendant PlacePass lacks knowledge and information sufficient to form a belief about
`
`the truth of this allegation and on that basis denies it. The remainder of the paragraph presents
`
`legal conclusions to which no response is required.
`
`8.
`
`Defendant PlacePass admits that it is a Delaware corporation with a principal place
`
`of business in Massachusetts. Defendant Marriott lacks knowledge and information sufficient to
`
`form a belief about the truth of this allegation and on that basis denies it. The remainder of the
`
`paragraph presents legal conclusions to which no response is required.
`
`JURISDICTION AND VENUE
`
`9.
`
`Paragraph 9 of the Complaint presents legal conclusions to which no response is
`
`required.
`
`10.
`
`Defendant Marriott admits that it maintains its principal place of business in
`
`Maryland. Defendant PlacePass lacks knowledge and information sufficient to form a belief about
`
`the truth of that allegation and on that basis denies it. The remainder of the paragraph presents
`
`legal conclusions to which no response is required.
`
`11.
`
`Defendant PlacePass admits that it maintains its principal place of business in
`
`Massachusetts. Defendant PlacePass denies that it “purposely directs substantial activities at the
`
`residents of Maryland by means of the Website.” Defendant Marriott lacks knowledge and
`
`-2-
`
`
`
`Case 8:21-cv-01424-PX Document 10 Filed 07/30/21 Page 3 of 9
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`information sufficient to form a belief about the truth of these allegations and on that basis denies
`
`them. The remainder of the paragraph presents legal conclusions to which no response is required.
`
`12.
`
`Paragraph 12 of the Complaint presents legal conclusions to which no response is
`
`required.
`
`FACTS COMMON TO ALL CLAIMS
`
`13.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 13 of the Complaint and on that basis deny them.
`
`14.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 14 of the Complaint and on that basis deny them.
`
`15.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 15 of the Complaint and on that basis deny them.
`
`16.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 16 of the Complaint and on that basis deny them.
`
`17.
`
`Defendants admit that Marriott is the registered owner of the Website. Defendants
`
`deny the remaining allegations in Paragraph 17 of the Complaint.
`
`18.
`
`19.
`
`Defendants deny the allegations in Paragraph 18 of the Complaint.
`
`Defendant PlacePass admits that it is the operator of the Website. Defendants deny
`
`the remaining allegations in Paragraph 19 of the Complaint.
`
`20.
`
`Defendants lack knowledge and information sufficient to understand what Plaintiff
`
`means by the term “popular and lucrative commercial enterprise” and on that basis deny the
`
`allegations in Paragraph 20 of the Complaint.
`
`21.
`
`Defendants deny the allegations in Paragraph 21 of the Complaint.
`
`-3-
`
`
`
`Case 8:21-cv-01424-PX Document 10 Filed 07/30/21 Page 4 of 9
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`22.
`
`Defendants admit that the Website sells services to the public and Defendants make
`
`money from these sales. Defendants otherwise deny the allegations in Paragraph 22 of the
`
`Complaint.
`
`23.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 23 of the Complaint and on that basis deny them.
`
`24.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 24 of the Complaint and on that basis deny them.
`
`25.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 25 of the Complaint and on that basis deny them.
`
`26.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 26 of the Complaint and on that basis deny them.
`
`27.
`
`Defendants admit that the Photograph in question was previously displayed at URL
`
`https://activities.marriott.com/things-to-do/V28Hi3E7ugSgp77n-batu-caves-and-blue-mosque-
`
`tour
`
`and
`
`previously
`
`stored
`
`at
`
`https://media.tacdn.com/media/attractions-splice-spp-
`
`674x446/09/de/b4/93.jpg. Defendants deny that the photograph was displayed or stored at the
`
`above URLs at the time of the Complaint.
`
`Defendants deny the allegations in Paragraph 28 of the Complaint.
`
`Paragraph 29 of the Complaint presents legal conclusions to which no response is
`
`28.
`
`29.
`
`required.
`
`30.
`
`Paragraph 30 of the Complaint presents legal conclusions to which no response is
`
`required.
`
`31.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 31 of the Complaint and on that basis deny them.
`
`-4-
`
`
`
`Case 8:21-cv-01424-PX Document 10 Filed 07/30/21 Page 5 of 9
`
`Defendants deny the allegations in Paragraph 32 of the Complaint.
`
`Paragraph 33 of the Complaint presents legal conclusions to which no response is
`
`Defendants deny the allegations in Paragraph 34 of the Complaint.
`
`Paragraph 35 of the Complaint presents legal conclusions to which no response is
`
`32.
`
`33.
`
`required.
`
`34.
`
`35.
`
`required.
`
`36.
`
`Paragraph 36 of the Complaint presents legal conclusions to which no response is
`
`required.
`
`37.
`
`Paragraph 37 of the Complaint presents legal conclusions to which no response is
`
`required.
`
`38.
`
`39.
`
`required.
`
`Defendants deny the allegations in Paragraph 38 of the Complaint.
`
`Paragraph 39 of the Complaint presents legal conclusions to which no response is
`
`40.
`
`Defendants lack knowledge and information sufficient to understand what Plaintiff
`
`means by the term “monitor the content on the Website” and on that basis deny the allegations in
`
`Paragraph 40 of the Complaint.
`
`41.
`
`Paragraph 41 of the Complaint presents legal conclusions to which no response is
`
`required.
`
`42.
`
`43.
`
`Defendants deny the allegations in Paragraph 42 of the Complaint.
`
`Defendants lack knowledge and information sufficient to understand what Plaintiff
`
`means by the term “large number of people” and on that basis deny the allegations in Paragraph
`
`43 of the Complaint. Defendants deny that there were any “unlawful copies of the Photograph on
`
`the Website.”
`
`-5-
`
`
`
`Case 8:21-cv-01424-PX Document 10 Filed 07/30/21 Page 6 of 9
`
`44.
`
`45.
`
`Defendants deny the allegations in Paragraph 44 of the Complaint.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 45 of the Complaint and on that basis deny them.
`
`46.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`truth of the allegations in Paragraph 46 of the Complaint and on that basis deny them.
`
`FIRST COUNT
`
`(Direct Copyright Infringement, 17 U.S.C. §501 et seq.)
`
`Defendants incorporate the above paragraphs by reference.
`
`Defendants lack knowledge and information sufficient to form a belief about the
`
`47.
`
`48.
`
`truth of the allegations in Paragraph 48 of the Complaint and on that basis deny them.
`
`49.
`
`Defendants admit that Plaintiff did not directly license the right to use the
`
`Photograph to Defendants. Defendants admit that Plaintiff has not directly assigned to them any
`
`of its exclusive rights in any copyright. Defendants deny the remaining allegations in Paragraph
`
`49 of the Complaint.
`
`Defendants deny the allegations in Paragraph 50 of the Complaint.
`
`Paragraph 51 of the Complaint presents legal conclusions to which no response is
`
`Defendants deny the allegations in Paragraph 52 of the Complaint.
`
`Paragraph 53 of the Complaint presents legal conclusions to which no response is
`
`50.
`
`51.
`
`required.
`
`52.
`
`53.
`
`required.
`
`54.
`
`Paragraph 54 of the Complaint presents legal conclusions to which no response is
`
`required.
`
`-6-
`
`
`
`Case 8:21-cv-01424-PX Document 10 Filed 07/30/21 Page 7 of 9
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`55.
`
`Paragraph 55 of the Complaint presents legal conclusions to which no response is
`
`required.
`
`GENERAL DENIAL
`
`Defendants further deny the allegations in Plaintiff’s Complaint that are not specifically
`
`admitted in the responses set forth above.
`
`AFFIRMATIVE AND OTHER DEFENSES
`
`Pursuant to Rule 8(c) of the Federal Rules of Civil procedure, Defendants set forth the
`
`following affirmative and other defenses, and do so on information and belief as to the actions
`
`of others. Defendants do not concede that they bear the burden of proof or persuasion on any of
`
`these defenses. Defendants reserve the right to assert additional defenses in the event that
`
`discovery or further investigation demonstrates that any such defense is appropriate or applicable.
`
`FIRST DEFENSE
`(DMCA Safe Harbor)
`
`Plaintiff’s claims are barred in whole or in part by the DMCA safe harbor provisions in 17
`
`U.S.C. § 512.
`
`SECOND DEFENSE
`(License)
`
`Plaintiff’s claims are barred in whole or in part by licenses, express and implied, granted
`
`or authorized to be granted by the owners of the asserted copyrights, including licenses that
`
`expressly or impliedly permit the conduct alleged to be infringing by Plaintiff. Plaintiff has
`
`licensed individuals to make use of the asserted copyrighted Photograph and has alleged no facts
`
`to show the alleged infringing acts were not committed by licensees of those copyrights.
`
`-7-
`
`
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`Case 8:21-cv-01424-PX Document 10 Filed 07/30/21 Page 8 of 9
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`THIRD DEFENSE
`(Innocent Intent)
`
`Plaintiff’s damages, if any, are limited by Defendants’ innocent intent because Defendants
`
`at no time intended to infringe any copyright and instead relied on the promises made by third-
`
`parties that they had the rights to upload the allegedly infringing Photograph.
`
`FOURTH DEFENSE
`(Copyright Misuse)
`
`Plaintiff’s claims are barred in whole or in part by the doctrine of copyright misuse because
`
`Plaintiff has sought to use its copyrights to restrict activity that is not protected by copyright law,
`
`including activity protected by the DMCA.
`
`FIFTH DEFENSE
`(Failure to Join an Indispensable Party)
`
`Plaintiff’s complaint against Defendants should be dismissed for failure to join a required
`
`party, namely, the third-party who uploaded the allegedly infringing Photograph and warranted
`
`that they had the necessary rights to do so.
`
`SIXTH DEFENSE
`(Failure to State A Claim)
`
`Plaintiffs’ allegations fail to state a claim for copyright infringement under federal, foreign
`
`or state law.
`
`JURY DEMAND
`
`Pursuant to Federal Rule of Civil Procedure 38, Defendants hereby demand a jury trial of
`
`all issues triable by a jury.
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Defendants deny that Plaintiff should recover any of the relief requested
`
`in its Prayer for Relief. Defendants request judgement in its favor and against Plaintiff as follows:
`
`-8-
`
`
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`Case 8:21-cv-01424-PX Document 10 Filed 07/30/21 Page 9 of 9
`
`a.
`
`Ordering that Plaintiff’s claims be dismissed in their entirety with prejudice, that
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`judgment be entered in favor of Defendants and against Plaintiff, and that Plaintiff
`
`be denied all relief requested in its claims, including any injunctive relief;
`
`Awarding to Defendants their reasonable attorneys’ fees, costs, and expenses in this
`
`matter, and under other applicable law; and
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`Granting such further relief as this Court may deem just and proper.
`
`b.
`
`c.
`
`Dated: July 30, 2021
`
`Respectfully submitted,
`
`WILSON SONSINI GOODRICH & ROSATI
`Professional Corporation
`
`s/ Franklin M. Rubinstein
`Franklin M. Rubinstein, SBN 15367
`1700 K Street, NW, Fifth Floor
`Washington, D.C. 20006
`Telephone: (202) 973-8800
`Facsimile: (202) 973-8899
`Email: frubinstein@wsgr.com
`Colleen Bal (admitted pro hac vice)
`One Market Plaza, Spear Tower, Suite 3300
`San Francisco, California 94105
`Telephone: (415) 947-2000
`Facsimile: (415) 947-2099
`Email: cbal@wsgr.com
`Attorneys for Defendants
`Marriott International, Inc. and ETMA, Inc.
`
`-9-
`
`
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