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Act 19: I Answer the Complaint

Since Taubman's lawyers had requested a default judgment because I had not answered their Complaint, I figured that maybe I should go ahead and answer their Complaint.

This was a little problematic for me. For one thing, for all I knew, a default judgment might already have been entered against me. And even if that had not happened, it might be too late to submit an answer to the Complaint.

But even if a default judgment had not already been entered, and even if it were not too late to answer the Complaint, I still had one minor problem: I had no idea how to answer a Complaint!

So I threw something together that said that all of Taubman's allegations were false, that I intended to aggressively defend myself, that I agreed with their demand for a jury trial, yada yada yada... And then the most remarkable thing happened...

In an attempt to publicize my "cause," I had initiated discussions in several Internet discussion groups that deal with legal issues and related topics. I had received dozens of responses, many of them offering support, some of them offering advice. Several of the notes were from lawyers. (I think that every one of those notes advised me to hire an attorney.) And in one of the notes that showed up in my inbox, a lawyer suggested that, to avoid a default, I should contact the Court to let them know that a response was on its way. (He didn't know that I had already done that.) He also said that, even though it might be too late, I should submit an answer to the complaint as soon as possible. He didn't know that I had already created an answer, and that it was printed out and ready to drop into the mail...

It's very fortunate that I read his note first, because he offered detailed instructions for creating an answer to a complaint – and it turned out that the document that I had created was all wrong! So I tore that one up and created a new one along the lines he suggested. It's probably not a masterpiece, but here it is. (It's a pretty boring document, by the way. My original made for much better reading. But, hopefully, this one will be more effective.)

(Note: I have not included the exhibits or the "Certificate of Service.")


UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

THE TAUBMAN COMPANY LIMITED
PARTNERSHIP,
 
Plaintiff, 
 
 Case No. 01-72987
v.
 Hon. Lawrence P. Zatkoff
WEBFEATS and HENRY MISHKOFF, Magistrate Judge Komives
 
Defendants. 

DEFENDANTS' ANSWER TO PLAINTIFF'S COMPLAINT

On August 7, 2001, Plaintiff filed a Complaint against Defendants in this Court.

Defendants deny Plaintiff's allegations in regard to trademark infringement, unfair competition, and cybersquatting. Defendants intend to aggressively pursue defense of Plaintiff's Complaint, which they regard as harassment rather than substantive, and which they believe to be without merit.

Defendants respectfully request that this Court grant none of the relief sought by Plaintiff. Defendants do, however, concur with Plaintiffs demand for a jury trial.

Parties and Jurisdiction

  1. Defendants do not contest the statement made by Plaintiff in paragraph 1 of the Complaint.

  2. Defendants do not contest the statements made by Plaintiff in paragraph 2 of the Complaint that relate to Defendants' identities. Defendants contest the statement made by Plaintiff in paragraph 2 of the Complaint that relates to jurisdiction because they lack information sufficient to form a belief as to its accuracy.

  3. Defendants do not contest the statement made by Plaintiff in paragraph 3 of the Complaint that relates to Defendants' relationship to each other. Defendants contest the statement made by Plaintiff in paragraph 3 of the Complaint that relates to jurisdiction because they lack information sufficient to form a belief as to its accuracy.

  4. Defendants do not contest the statement made by Plaintiff in paragraph 4 of the Complaint.

  5. Defendants contest the statement made by Plaintiff in paragraph 5 of the Complaint because they lack information sufficient to form a belief as to its accuracy.

General Allegations

  1. Defendants admit the allegations made by Plaintiff in paragraph 6 of the Complaint.

  2. Defendants deny the allegations made by Plaintiff in paragraph 7 of the Complaint because they lack information sufficient to form a belief as to their truth or falsity.

  3. Defendants admit the allegations made by Plaintiff in paragraph 8 of the Complaint.

  4. Defendants deny the allegations made by Plaintiff in paragraph 9 of the Complaint. Some of the allegations are false, some are misleading, and some represent facts that were partially true at one time but which are now entirely untrue.

  5. Defendants admit the allegation made by Plaintiff in paragraph 10 of the Complaint.

  6. Defendants deny the allegation made by Plaintiff in paragraph 11 of the Complaint because it is untrue.

  7. Defendants admit the allegation made by Plaintiff in paragraph 12 of the Complaint.

  8. Defendants deny the allegation made by Plaintiff in paragraph 13 of the Complaint because it is untrue.

Count I - 15 U.S.C. Section 1114 Trademark Infringement

  1. Defendants deny the allegation made by Plaintiff in paragraph 15 of the Complaint because it is untrue.

  2. Defendants deny the allegation made by Plaintiff in paragraph 16 of the Complaint because it is untrue.

  3. Defendants deny the allegation made by Plaintiff in paragraph 17 of the Complaint because it is untrue.

  4. Defendants deny the allegation made by Plaintiff in paragraph 18 of the Complaint because it is untrue.

Count II - 15 U.S.C. Section 1125(a) Trademark Infringement/Unfair Competition

  1. Defendants deny the allegation made by Plaintiff in paragraph 20 of the Complaint because it is untrue.

  2. Defendants deny the allegation made by Plaintiff in paragraph 21 of the Complaint because it is untrue.

  3. Defendants deny the allegation made by Plaintiff in paragraph 22 of the Complaint because it is untrue.

Count III - Violation of 15 U.S.C. Section 1125(d) - Anti-Cybersquatting Act

  1. Defendants deny the allegation made by Plaintiff in paragraph 24 of the Complaint because it is untrue.

  2. Defendants deny the allegation made by Plaintiff in paragraph 25 of the Complaint because it is untrue.

Affirmative Defense

  1. Defendants maintain that there is no basis for allegations of trademark infringement because Defendants' Plaintiff's website is factual and non-commercial, and because Defendants' website is unlikely to cause confusion or mistake or deception.

  2. Defendants maintain that there is no basis for allegations of unfair competition because Defendants' Plaintiff's website is factual and non-commercial, and because Defendants' website is unlikely to cause confusion or mistake or deception.

  3. Defendants maintain that there is no basis for allegations of cybersquatting violation because Defendants' Plaintiff's website is factual and non-commercial, and because Defendants' website is unlikely to cause confusion or mistake or deception.

  4. Plaintiff has already entered into a valid and binding agreement with Defendants to settle this case:

    1. On August 16, 2001, Plaintiff proposed a settlement to Defendants (Exhibit A). Plaintiff stated: "Obviously, such a resolution is preferable to litigation, which we will pursue only if this resolution is not acceptable to you" (emphasis mine).

    2. On August 16, 2001, Defendants accepted Plaintiffs proposal (Exhibit B).

    However, Plaintiff refused to execute the agreement and proceeded with litigation, a clear show of bad faith, which in and of itself is cause for the Court to dismiss the Complaint.

Timing

In Plaintiff's "Request to Enter Default" (undated, but probably entered on or about October 15, 2001), Plaintiff claims that this answer is overdue, and that Defendants are in default. However, Defendant interpreted the Complaint as essentially being a request for a jury trial, which is a reasonable interpretation of the Complaint. Because Defendants have no opposition to Plaintiff's proposal of a jury trial, Defendants believed that no answer was necessary.

Also, Plaintiff led Defendants to believe that Plaintiff was no longer pursuing this case, which also led Defendant to believe that no answer to the Complaint was necessary. As evidence for the reasonable nature of Defendant's belief in this matter, Defendants urge the Court to consider this sequence of events:

  1. On August 16, 2001, Plaintiff proposed a settlement to Defendants (Exhibit A). Plaintiff stated: "Obviously, such a resolution is preferable to litigation, which we will pursue only if this resolution is not acceptable to you" (emphasis mine).

  2. On August 16, 2001, Defendants accepted Plaintiffs proposed settlement (Exhibit B).

  3. On October 8, 2001, after waiting nearly two months for Plaintiff to execute the settlement that Plaintiff themselves had proposed and that Defendants had accepted, Defendants informed Plaintiff that Defendants' acceptance of Plaintiff's proposal would be withdrawn on October 12, 2001 (Exhibit C).

Since only ten days (six business days) have passed between the termination of the agreed settlement between Plaintiff and Defendants (on October 12, 2001) and the submission of this document, Defendants urge the Court to accept this answer as being a good-faith effort to submit a response to the Complaint in a timely fashion.

Respectfully submitted,

Henry Mishkoff
WebFeats
2661 Midway Road, #224-225
Carrollton, TX 75006
972.931.5421

Defendants

Dated: October 22, 2001


Next: I Move To Dismiss the Default Request

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