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IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF MISSOURI
EASTERN DIVISION
THE PRECINCT, INC.
an Ohio Corporation,
Plaintiff,
vs. Cause No. 4:13-CV-02391
MWS, LLC, a Missouri Limited Liability Co.,
Defendant.
JURY TRIAL DEMANDED
ANSWER
COMES NOW Defendant, MWS, LLC, by and through its attorney, John
J. Pawloski of
The Law Office of John J. Pawloski, LLC and states in support of
its Answer to Plaintiffs
Complaint states as follows:
1. Upon information and belief, admitted.
2. Upon information and belief, admitted.
3. Admitted.
4. Admitted as to Mark Winfield. Except as expressly admitted,
denied.
5. Defendant admits that this Court has jurisdiction over the
claims presented. Except as
expressly admitted, the remaining items of paragraph 5 are
denied.
6. Defendant admits that venue is proper before this Court.
Except as expressly admitted, the
remaining allegations of paragraph 6 are denied.
7. Defendant admits that Plaintiff has operated a fine dining
establishment known as The
Precinct in Cincinnati. Except as expressly admitted, the
remainder of paragraph 7 is denied.
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8. Defendant admits that Plaintiff displays police memorabilia
and decor. Except as expressly
admitted, the remaining allegations of paragraph 8 are
denied.
9. Defendant is without personal knowledge of the allegations of
paragraph 9 and denies
same.
10. Defendant is without personal knowledge of the allegations
of paragraph 10 and denies
same.
11. Defendant is without personal knowledge of the allegations
of paragraph 9 and denies
same.
12. Defendant admits that Plaintiff has secured a federal
trademark registration No. 4,318,443.
Except as expressly admitted the remaining allegations of
paragraph 12 are denied.
13. Paragraph 13 does not aver facts, but rather legal
conclusions. To the extent that the
allegations of paragraph 13 are construed to aver facts, they
are denied.
14. Denied.
15. Denied.
16. Defendant admits that Plaintiff has been recognized as a
fine dining restaurant and one of
the top steakhouses in the country. Except as admitted, the
remaining allegations of paragraph
16 are denied.
17. Admitted.
18. Defendant is without personal knowledge of the allegations
of paragraph 18 and denies
same.
19. Defendant is without personal knowledge of the allegations
of paragraph 19 and denies
same.
20. Defendant is without personal knowledge of the allegations
of paragraph 20 and denies
same.
21. Defendant is without personal knowledge of the allegations
of paragraph 21 and denies
same.
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22. Denied.
23. Denied.
24. Denied.
25. Defendant admits that Jim Edmonds was a professional
baseball player with the St. Louis
Cardinals for many years in varying capacities, that he would in
that capacity, play against the
Cincinnati Reds. Except as admitted, the remaining allegations
of paragraph 25 are denied.
26. Admitted.
27. Defendant admits that Edmonds has been to Plaintiffs
establishment. Except as expressly
admitted, the remaining allegations of paragraph 27 are
denied.
28. Admitted.
29. Admitted.
30. Admitted.
31. Admitted.
32. Denied.
33. Defendant admits that it uses social media to promote its
restaurant. Except as expressly
admitted, Defendant denies the remainder of paragraph 33.
34. Defendant admits that its decor includes police memorabilia
and sports memorabilia of Jim
Edmonds. Except as expressly admitted, the remaining allegations
of paragraph 34 are denied.
35. Defendant admits that it received a letter from Plaintiffs
attorney. Except as expressly
admitted, the remaining allegations of paragraph 35 are
denied.
36. Denied.
37. Denied.
38. Denied.
39. Denied.
40. Denied.
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41. Defendant admits that it is not licensed by Plaintiff.
Except as expressly admitted, the
remaining allegations of paragraph 41 are denied.
42. Denied.
Count I: Federal Trademark Infringement
43. Defendant reincorporates its response to paragraphs 1-42 as
if expressly set forth herein.
44. Defendant is without personal knowledge of the allegations
of paragraph 44 and denies
same.
45. Denied.
46. Denied.
47. Denied.
48. Denied.
49. Denied.
50. Denied.
51. Denied.
52. Defendant admits that Plaintiffs damages cannot be
ascertained. Except as expressly
admitted, the remainder of paragraph 52 are denied.
53. Denied.
Count II: Unfair Competition
54. Defendant incorporates by reference its response to
allegations in paragraphs 1-53 as if
expressly set forth herein.
55. Denied.
56. Denied.
57. Denied.
58. Denied.
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59. Denied.
60. Defendant admits that Plaintiff cannot yet ascertain its
damages. Except as expressly
admitted, the remainder of paragraph 60 are denied.
Count III: Missouri Statutory and Common Law Trademark
and Unfair Competition under RSMo. 417.056
61. Defendant incorporates by reference its responses to
allegations in paragraphs 1-60 as if
expressly set forth herein.
62. Plaintiff has failed to allege facts, but rather merely
legal conclusions. To the extent that
Plaintiffs allegations are construed to allege facts, they are
expressly denied.
63. Denied.
64. Denied.
65. Denied.
66. Denied.
67. Denied.
Count IV: Missouri Statutory Infringement Trademark Dilution
under RSMo. 417.061
68. Defendant incorporates its response to allegations in
paragraphs 1-67 as if expressly set
forth herein.
69. Denied.
70. Denied.
71. Denied.
72. Denied.
73. Denied.
Defendant denies each every prayer for relief pled by
Plaintiff.
Affirmative Defenses
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1. Plaintiff has failed to maintain a distinctive mark for
sufficient duration such that it has an
enforceable interest under federal or state trademark law.
2. There is no substantial risk of confusion between Defendant
and Plaintiffs enterprise,
especially given the differing cuisine and target audience of
their customer base, as well as
Defendants sports marketing centered on its namesake, Jim
Edmonds.
3. Plaintiffs damages if any are unascertainable, and not
sufficiently definite to state a claim for
relief as a matter of law, and are unduly speculative.
4. Plaintiffs harm, if any, was proximately caused by its own
conduct in the operation of a
restaurant in the St. Louis community, and not on account of any
confusion between Plaintiff
and Defendants business.
5. Plaintiffs allegations for injunctive relief are based upon a
personal animus toward Jim
Edmonds, and accordingly, should be barred due to unclean
hands.
6. Plaintiff has failed to take sufficient measures to protect
its mark from competition such that it
has forfeited its legal protection for its mark as a matter of
law.
Respectfully Submitted,
/s/ John J. Pawloski
_______________________________
John J. Pawloski #38059
The Law Office of John J. Pawloski, LLC
1900 Locust Street, Suite 302
St. Louis, MO 63103
(314) 588-7802
(314) 588-7803 (fax)
[email protected]
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mailto:[email protected]:[email protected]
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Certificate of Service
The undersigned does hereby certify pursuant to the Federal
Rules of Civil Procedure
and local rules of Court that a true and correct copy of the
foregoing was provided to thecounsel of record on this 21st day of
April, 2014 via the Courts electronic filing system to the
following:
Mr. Michael R. Annis
Husch Blackwell, LLP
190 Carondolet Plaza, Suite 600
St. Louis, MO 63105
(314) 480-1500
(314) 480-1505 (fax)
/s/ John J. Pawloski
_________________________________________________
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