Case 6:13-cv-00709-TC

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Carl D. Crowell, OSB No. 982049 email: crowell@kite.com CROWELL LAW P.O. Box 923 Salem, OR 97308 (503) 581-1240 Of attorneys for plaintiff UNITED STATES DISTRICT COURT DISTRICT OF OREGON EUGENE DIVISION CTS WHOLESALE, LLC, Plaintiff, v. USPA ACCESSORIES, LLC d/b/a CONCEPT ONE, Defendant. PLAINTIFF CTS ANSWER TO COUNTERCLAIMS PATENT INFRINGEMENT DEMAND FOR JURY TRIAL Case No.: 6:13-00709-TC

ANSWER TO COUNTERCLAIMS

Plaintiff CTS Wholesale, LLC, answers and responds to defendants Counterclaims as follows: 1. 2. 3. 4. 5. Admitted. Admitted. Admitted. Admitted. Admitted.

PLAINTIFFS ANSWER TO COUNTERCLAIMS

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6.

CTS admits that it distributed hats and products to consumers in this district, but denies

any such were infringing. 7. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 7 of the Counterclaims. 8. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 8 of the Counterclaims. 9. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 9 of the Counterclaims. 10. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 10 of the Counterclaims. 11. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 11 of the Counterclaims. 12. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 12 of the Counterclaims. 13. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 13 of the Counterclaims. 14. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 14 of the Counterclaims. 15. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 15 of the Counterclaims. 16. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 16 of the Counterclaims.

PLAINTIFFS ANSWER TO COUNTERCLAIMS

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17.

CTS admits to being in the business of selling items, including items commonly

considered novelty items. 18. CTS admits to being aware of other novelty items on the market, including a number of

other parties that sell hats with fake hair incorporated into the design. 19. 20. 21. CTS admits to offering Hair Hats with prices in the $3.00 range. CTS denies the allegation of paragraph 20. Plaintiff CTS is without information or knowledge to admit or deny the allegations of

paragraph 21 with respect to competition, and denies the balance of the allegation of paragraph 21.

ANSWER TO FIRST CLAIM 22. 23. In response to paragraph 22, CTS incorporates the above responses. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 23 of the Counterclaims. 24. Plaintiff CTS is not aware of any marking as alleged in paragraph 24 of the

Counterclaims and as such denies the same. 25. Plaintiff CTS is without sufficient information or knowledge to admit or deny the

allegations of paragraph 25 of the Counterclaims. 26. CTS admits it sold hats with faux fur, but no such hats simulated hair such as might be

found on a person. 27. 28. 29. Admitted. CTS admits paragraph 28 appears to depict products sold by the respective parties. CTS denies the allegation of paragraph 29.

PLAINTIFFS ANSWER TO COUNTERCLAIMS

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30. 31. 32. 33. 34.

CTS denies the allegations of paragraph 30. CTS denies the allegations of paragraph 31. CTS denies the allegations of paragraph 32. CTS denies the allegations of paragraph 33. CTS denies the allegation of paragraph 34.

ANSWER TO SECOND CLAIM 35. 36. 37. 38. 39. 40. 41. In response to paragraph 35, CTS incorporates the above responses. CTS denies the allegations of paragraph 36. CTS denies the allegations of paragraph 37. CTS denies the allegations of paragraph 38. CTS denies the allegation of paragraph 39. CTS denies the allegations of paragraph 40. All allegations not specifically admitted herein are specifically denied.

AFFIRMATIVE DEFENSES 1. 2. Defendants counterclaims fail to state claims for which relief may be granted. Defendants counterclaims should be denied in that defendant and its predecessors in

interest present with unclean hands including the misuse of U.S. Pat. No. D557,478, the patent in suit. 3. Specifically, defendants with knowledge of the scope of the claim of D557,478, have

attempted to enforce the D557,478 against items not covered by D557,478.

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4.

Specifically, defendants with knowledge of the scope of the claim of D557,478,

promote product as covered by D557,478 when it is not in fact covered by the claim of D557,478 in violation of 35 U.S.C. 292. 5. 6. Defendants counterclaims should be denied under the doctrine of latches. Defendants counterclaims should be denied as plaintiffs relevant conduct was at all

times innocent. 7. Defendants counterclaims should be denied as damages, if any, were not caused by

plaintiff but were in fact caused by the large number of other parties selling similar and identical items.

WHEREFORE, plaintiff prays for the relief requested in its complaint and that defendants counterclaims be dismissed and denied in full. DATED: August 27, 2013.

Respectfully submitted, CROWELL LAW /s/ Carl D. Crowell Carl D. Crowell, OSB No. 982049 email: crowell@kite.com P.O. Box 923 Salem, OR 97308 (503) 581-1240 Of attorneys for the plaintiff

PLAINTIFFS ANSWER TO COUNTERCLAIMS

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