Free Answer to Complaint - District Court of California - California

Case 5:07-cv-03523-JW

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MARTHA C. LUEMERS, ESQ. (State Bar No. 104658) DORSEY & WHITNEY LLP 1717 Embarcadero Road Palo Alto, CA 94303 Telephone: (650) 857-1717 Facsimile: (650) 857-1288 [email protected] BRUCE R. EWING (pro hac vice) DORSEY & WHITNEY LLP 250 Park Avenue New York, New York 10177 Telephone: (212) 415-9200 Facsimile: (212) 953-7201 Attorneys for Defendants Children's Apparel Network, Ltd. and Mervyn's LLC IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA SAN FRANCISCO DIVISION GYM-MARK, INC. and THE GYMBOREE CORPORATION, Plaintiffs, v. CHILDREN'S APPAREL NETWORK, LTD. and MERVYN'S LLC, Defendants CASE NO: C-07-3523 (EDL) ANSWER

Defendants Children's Apparel Network, Ltd. and Mervyn's LLC, by and through the undersigned counsel, as and for their Answer to the July 6, 2007 complaint (the "Complaint") of plaintiffs Gym-Mark, Inc. and The Gymboree Corporation, hereby state as follows: 1. Defendants deny knowledge and information sufficient to form a belief as to the truth or

falsity of the allegations contained in paragraphs 1 and 2 of the Complaint. 2. Defendants admit the allegations contained in paragraphs 3 and 4 of the Complaint except

to the extent paragraph 4 characterizes certain goods as "infringing," which allegation is denied. 3. In response to the allegations contained in paragraph 5 of the Complaint, Defendants admit
ANSWER CASE NO: C-07-3523 (EDL)

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that this Court possesses subject matter jurisdiction over the claims contained in the Complaint for copyright infringement and unfair competition and denies that such claims are properly stated and that Defendants are liable on such claims. 4. In response to the allegations contained in paragraphs 6 and 7 of the Complaint,

Defendants admit that they are subject to personal jurisdiction in this District and deny the remaining allegations contained in these paragraphs. 5. 6. nor deny. 7. In response to the allegations contained in paragraph 10 of the Complaint, Defendants Defendants admit the allegations contained in paragraph 8 of the Complaint. Paragraph 9 of the Complaint contains a statement of law that Defendants neither admit

admit that plaintiff Gym-Mark, Inc. is listed as the claimant on the copyright registration appended to the Complaint as Exhibit A, and that the work in which copyright is claimed is depicted in such registration. Defendants deny the validity of such registration, the originality of the work depicted in the registration and the remaining allegations contained in this paragraph. 8. Defendants deny knowledge and information sufficient to form a belief as to the truth or

falsity of the allegations contained in paragraph 11 of the Complaint. 9. In response to the allegations contained in paragraph 12 of the Complaint, Defendants

admit that Mervyn's LLC has sold items of children's apparel manufactured by defendant Children's Apparel Network, Ltd. under the trademark YOUNG HEARTS bearing various embroidery patterns, deny knowledge and information sufficient to form a belief as to the truth or falsity of the allegations as to when plaintiffs became aware of such sales and the alleged distinctions in the price points at which the parties' respective goods were sold. Defendants deny the remaining allegations contained in this paragraph. 10. Defendants deny the allegations contained in paragraphs 13 through 16 of the Complaint

except for the allegation in paragraph 16 that defendants compete directly with plaintiffs, which allegation is admitted. 11. In response to paragraph 17 of the Complaint, Defendants repeat and re-allege their

responses to paragraphs 1 through 16 of the Complaint as if fully set forth herein. 2
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12. 13.

Defendants deny the allegations contained in paragraphs 18 through 24 of the Complaint. In response to paragraph 25 of the Complaint, Defendants repeat and re-allege their

responses to paragraphs 1 through 16 of the Complaint as if fully set forth herein. 14. nor deny. 15. 16. Defendants admit the allegations contained in paragraph 27 of the Complaint. Defendants deny the allegations contained in paragraphs 28 through 31 of the Complaint. AFFIRMATIVE DEFENSES First Affirmative Defense 1. The Complaint fails to state a claim upon which relief may be granted. Second Affirmative Defense 2. Plaintiffs' copyright registration Vau682-370 is invalid because it was issued in violation Paragraph 26 of the Complaint contains a statement of law that Defendants neither admit

of 37 C.F.R. § 202.3(b)(4)(i)(B). Third Affirmative Defense 3. Plaintiffs' copyright registration Vau682-370 is invalid because it materially misstates the

nature of the work at issue. Fourth Affirmative Defense 4. original. Fifth Affirmative Defense 5. Plaintiffs' second claim for unfair competition under Cal. Bus. & Prof. Code §§ 17200 et Plaintiffs' copyright registration Vau682-370 is invalid because the work at issue is not

seq. is preempted by the U.S. Copyright Act, 17 U.S.C. 101 et seq. PRAYER FOR RELIEF WHEREFORE, Defendants Children's Apparel Network, Ltd. and Mervyn's LLC pray for the following relief against plaintiffs Gym-Mark, Inc. and The Gymboree Corporation, as follows: 1. the Complaint; 2. For Defendants' reasonable attorneys' fees and costs pursuant to 17 U.S.C. § 505; and 3
ANSWER CASE NO: C-07-3523 (EDL)

For judgment in favor of the Defendants against the Plaintiffs on each claim contained in

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3.

For such other and further relief as the Court deems to be just and proper.

Dated: August 22, 2007 DORSEY & WHITNEY LLP

By

/s/ MARTHA C. LUEMERS BRUCE R. EWING (pro hac vice) Attorneys for Defendants. CHILDREN'S APPAREL NETWORK, LTD. AND MERVYN'S LLC

4

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RULE 3-16 CERTIFICATION OF INTERESTED ENTITIES OR PERSONS Pursuant to Civil L.R. 3-16, the undersigned certifies that the following listed persons, associations of person, firms, partnerships, corporations (including parent corporations) or other entities (i) have a financial interest in the subject matter in controversy or in a party to the proceeding, or (ii) have a non-financial interest in that subject matter or in a party that could be substantially affected by the outcome of this proceeding: The parent corporation of Mervyn's LLC is Mervyn's Holdings, LLC. Dated: August 22, 2007

DORSEY & WHITNEY LLP

By

/s/ MARTHA C. LUEMERS BRUCE R. EWING (pro hac vice) Attorneys for Defendants CHILDREN'S APPAREL NETWORK, LTD. AND MERVYN'S LLC

ANSWER CASE NO: C-07-3523 (EDL)