Sazerac v. Hood River Answer, Affirmative Defenses, Counterclaim

Case 3:12-cv-02304-HU
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Robert D. Scholz, OSB#77337 Megan L. Ferris, OSB#063404 rscholz@msmlegal.com mferris@msmlegal.com MacMILLAN, SCHOLZ & MARKS, P.C. 900 SW Fifth Avenue, Suite 1800 Portland, OR 97204 Phone: (503) 224-2165 Fax: (503) 224-0348 Attorneys for Defendant
IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON PORTLAND DIVISION SAZERAC COMPANY, INC., Plaintiff, vs. HOOD RIVER DISTILLERS, INC., Defendant. DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT Case No. 3:12-cv-02304-HU
Defendant, HOOD RIVER DISTILLERS, INC. (Hood River), by and through its attorneys, as set forth below, for its Answer, Affirmative Defenses and Counterclaim to the First Amended Complaint (the Complaint) of Plaintiff, SAZERAC COMPANY, INC. (Sazerac), states as follows: ANSWER 1. Paragraph 1 of the Complaint contains conclusions of law as to which no response is required. To the extent a response is required, Hood River admits that Sazerac purports to bring 1 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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this action under the Lanham Act as cited in Paragraph 1 of the Complaint. Hood River otherwise denies the allegations of Paragraph 1 of the Complaint. PARTIES 2. Hood River admits upon information and belief the allegations of Paragraph 2. 3. Hood River admits the allegations of Paragraph 3 of the Complaint. JURISDICTION AND VENUE 4. Hood River denies the allegations of Paragraph 4, except admits that Sazerac purports to bring this action under the Lanham Act and state statutory and common laws. 5. Paragraph 5 of the Complaint contains conclusions of law as to which no response is required. To the extent a response is required, Hood River admits that this Court has subject matter jurisdiction over this action. Hood River otherwise denies the allegations in Paragraph 5 of the Complaint. 6. Paragraph 6 of the Complaint contains conclusions of law as to which no response is required. To the extent a response is required, Hood River is without information sufficient to form a belief as to the truth of the allegations in Paragraph 6 of the Complaint and therefore denies same.
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7. Paragraph 7 of the Complaint contains conclusions of law as to which no response is required. To the extent a response is required, Hood River denies the allegations of Paragraph 7 of the Complaint. However, Hood River admits that on December 20, 2012, the United States District Court for the Western District of Kentucky entered a Memorandum Opinion [ECF 37] and Order [38], in Case No. 3:12-CV-0079-CRS, finding that the Court lacked personal jurisdiction over Hood River and transferring this case to the United States District Court for the District of Oregon. 8. Paragraph 8 of the Complaint contains conclusions of law as to which no response is required. To the extent a response is required, Hood River denies the allegations of Paragraph 8 of the Complaint. However, Hood River admits that on December 20, 2012, the United States District Court for the Western District of Kentucky entered a Memorandum Opinion [ECF 37] and Order [38], in Case No. 3:12-CV-0079-CRS, finding that the Court lacked personal jurisdiction over Hood River and transferring this case to the United States District Court for the District of Oregon. FACTS 9. Hood River denies the allegations of Paragraph 9, and avers that the allegations contain conclusions of law to which no response is required. // // 3 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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10. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 10 and therefore denies same. 11. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 11 and therefore denies same. 12. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 12. 13. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 13 and therefore denies same. 14. Hood River admits only so much of the allegation of sentence 1 in Paragraph 14 that states that Plaintiff has marketed and distributed cinnamon whiskey under the FIREBALL mark. The images attached as Exhibit A speak for themselves. Hood River denies the allegations contained in the seventh and eighth sentences of Paragraph 14, especially concerning the claim of distinctiveness. Hood River lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 14 and therefore denies same. 15. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 15 and therefore denies same. 4 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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16. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 16 and therefore denies same. 17. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 17 and therefore denies same. 18. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 18 and therefore denies same. 19. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 19 and therefore denies same. 20. Hood River denies that FIREBALL functions as a trademark. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 20 and therefore denies same. 21. Hood River admits only so much of the allegation of sentence 1 in Paragraph 21 that states that Plaintiff markets a cinnamon liqueur under the FIRE WATER brand. The image attached as Exhibit B speaks for itself. Hood River denies the allegations contained in the sixth sentence of Paragraph 21, especially concerning the claim of distinctiveness. Hood River lacks
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knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 21 and therefore denies same. 22. Hood River denies that FIRE WATER functions as a trade mark. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 22 and therefore denies same. 23. The allegations of Paragraph 23 contain conclusions of law to which no response is required. To the extent a response is required, Hood River denies the validity of the registrations and common law mark identified in Paragraph 23. Hood River lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 23 and therefore denies same. Hood River respectfully refers the Court to Plaintiffs trademark registration certificates for a complete and accurate statement of their contents. 24. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 24 and therefore denies same. 25. Hood River lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 25 and therefore denies same, except admits upon information and belief that Plaintiff or its affiliates markets products in the United States. 26. Hood River denies the allegations of Paragraph 26 of the Complaint. 6 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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27. The allegations of Paragraph 27 contain conclusions of law to which no response is required. To the extent a response is required, Hood River denies those allegations in Paragraph 27 of the Complaint. 28. Hood River admits that it filed an intent-to-use application, Serial No. 85/400560, with the U.S. Patent and Trademark Office on August 17, 2011 for SINFIRE for distilled products. Hood River otherwise denies the allegations in Paragraph 28 of the Complaint. 29. Hood River admits the allegations in Paragraph 29 of the Complaint. 30. Hood River admits the allegations in Paragraph 30 of the Complaint. 31. Hood River admits the allegations in Paragraph 31 of the Complaint to the extent it has shipped to thirty five states and has listings in 40 states. 32. Hood River admits the allegations in Paragraph 32 of the Complaint. 33. Hood River admits the allegations in Paragraph 33 of the Complaint. 34. Hood River admits the allegations in Paragraph 34 of the Complaint.
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35. Hood River admits the allegations in Paragraph 35 to the extent that Hood River sold PENDLETON Whisky and PENDLETON 1910 Whisky in Kentucky. Hood River denies that it has sold BROKERS American Blended Whiskey in Kentucky but admits BROKERS London Dry Gin has been sold in Kentucky. Hood River otherwise denies the allegations of Paragraph 35 of the Complaint. 36. The bottle and the label identified in Paragraph 36 of the Complaint speak for themselves. Hood River admits that the Certificate/Exemption of Label/Bottle Approval (COLA) attached to the Complaint as Exhibit C and printout of Hood Rivers website attached to the Complaint as Exhibit D identify the bottle and label under which Hood River offers SINFIRE. To the extent that the description in Paragraph 36 of the Complaint differs from the actual bottle and label as well as the COLA and website, Hood River denies the allegations in Paragraph 36 of the Complaint. 37. Paragraph 37 of the Complaint contains conclusions of law as to which no response is required. To the extent allegations are construed to be allegations of fact, Hood River denies them. Hood River further denies that FIREBALL and FIRE WATER function as trademarks. 38. Hood River denies the allegations in Paragraph 38 of the Complaint. // // 8 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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39. To the extent that Sazerac has not defined challenge shot or I dare you to try it category of beverage, Hood River is without information sufficient to form a belief as to the truth of the allegations in Paragraph 39 of the Complaint and therefore denies them. 40. Hood River admits that it has knowledge of the existence of Sazeracs products that bear the terms fireball and fire water. Hood River otherwise denies the allegations in Paragraph 40 of the Complaint 41. Hood River denies the allegations in Paragraph 41 of the Complaint. 42. Hood River is without information sufficient to form a belief as to the truth of the allegations in Paragraph 42 and therefore denies same, except that Hood River admits SINFIRE is sold in retail outlets. 43. Hood River denies the allegations in Paragraph 43 of the Complaint.
44. Hood River denies the allegations in Paragraph 44 of the Complaint. 45. Hood River denies the allegations in Paragraph 45 of the Complaint. 9 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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46. Hood River denies the allegations in Paragraph 46 of the Complaint. 47. Hood River denies the allegations in Paragraph 47 of the Complaint. 48. Hood River denies the allegations in Paragraph 48 of the Complaint. 49. Hood River denies the allegations in Paragraph 49 of the Complaint. However, Exhibit E comprises public documents and they can speak for themselves. 50. Hood River states that the December 27, 2011 letter attached to the Complaint as Exhibit F speaks for itself. Hood River admits that it issued a press release on January 30, 2012 announcing that SINFIRE would become available for national distribution in February 2012. Hood River otherwise denies the allegations in Paragraph 50 of the Complaint. FIRST CLAIM FOR RELIEF 51. Hood River repeats, realleges, and incorporates by reference its responses to Paragraphs 1 through 50 as if fully set forth herein. 52. The trademark registrations identified in Paragraph 52 of the Complaint are public records and can speak for themselves. Hood River denies the validity of the trademark
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registrations identified in Paragraph 52 of the Complaint. Hood River otherwise denies the allegations in Paragraph 52 of the Complaint. 53. The allegations contained in Paragraph 53 of the Complaint constitute conclusions of law as to which no response is required. To the extent that a response is required, Hood River denies the allegations of Paragraph 53. 54. The allegations contained in Paragraph 54 of the Complaint constitute conclusions of law as to which no response is required. To the extent that a response is required, Hood River denies the allegations of Paragraph 54. 55. The allegations contained in Paragraph 55 of the Complaint constitute conclusions of law as to which no response is required. To the extent that a response is required, Hood River denies the allegations of Paragraph 55. 56. The allegations contained in Paragraph 56 of the Complaint constitute conclusions of law as to which no response is required. To the extent that a response is required, Hood River denies the allegations of Paragraph 56. // //
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57. The allegations contained in Paragraph 57 of the Complaint constitute conclusions of law as to which no response is required. To the extent that a response is required, Hood River denies the allegations of Paragraph 57. SECOND CLAIM FOR RELIEF 58. Hood River repeats, realleges, and incorporates by reference its responses to Paragraphs 1 through 57 as if fully set forth herein. 59. Hood River denies that Sazerac has developed goodwill in the FIREBALL mark because FIREBALL fails to function as a trademark. Hood River is without information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 59 of the Complaint and therefore denies them. 60. Hood River denies that Sazerac has developed goodwill in the FIRE WATER mark because FIRE WATER fails to function as a trademark. Hood River is without information sufficient to form a belief as to the truth of the remaining allegations in Paragraph 60 of the Complaint and therefore denies them. 61. Hood River denies the allegations in Paragraph 61 of the Complaint. 62. Hood River denies the allegations in Paragraph 62 of the Complaint. 12 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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THIRD CLAIM FOR RELIEF 63. Hood River repeats, realleges, and incorporates by reference its responses to Paragraphs 1 through 62 as if fully set forth herein. 64. Hood River denies the allegations in Paragraph 64 of the Complaint. 65. Hood River denies the allegations in Paragraph 65 of the Complaint. 66. The allegations contained in Paragraph 66 of the Complaint constitute conclusions of law as to which no response is required. To the extent that a response is required, Hood River denies the allegations of Paragraph 66. 67. Hood River denies the allegations in Paragraph 67 of the Complaint. 68. Hood River denies the allegations in Paragraph 68 of the Complaint. 69. Hood River denies the allegations in Paragraph 69 of the Complaint. 70. Hood River denies the allegations in Paragraph 70 of the Complaint. // // 13 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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FOURTH CLAIM FOR RELIEF 71. Hood River repeats, realleges, and incorporates by reference its responses to Paragraphs 1 through 70 as if fully set forth herein. 72. Hood River denies the allegations in Paragraph 72 of the Complaint. 73. Hood River denies the allegations in Paragraph 73 of the Complaint. 74. Hood River denies the allegations in Paragraph 74 of the Complaint. 75. Hood River denies the allegations in Paragraph 75 of the Complaint. 76. Hood River denies the allegations in Paragraph 76 of the Complaint. PRAYER FOR RELIEF 77. Hood River requests the Court deny the relief requested by Sazerac in Paragraphs A through G of the section of the Complaint entitled PRAYER FOR RELIEF. *** *** ***
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AFFIRMATIVE DEFENSES Hood River does not assume the burden of proof with respect to the defenses set forth below where the substantive law provides otherwise. As separate and distinct affirmative defenses to Sazeracs First Amended Complaint, Hood River alleges as follows: 78. FIRST AFFIRMATIVE DEFENSE The Complaint and every allegation contained therein fails to state any claim upon which relief may be granted against Hood River. 79. SECOND AFFIRMATIVE DEFENSE Sazeracs claims are barred in whole, or in part, by the statute of limitations. 80. THIRD AFFIRMATIVE DEFENSE Sazerac can recover nothing on its trademark and trade dress infringement claims because the alleged trademarks and trade dress are not distinctive. 81. FOURTH AFFIRMATIVE DEFENSE Sazerac has suffered no damages as a result of any action or omission of Hood River. 82. FIFTH AFFIRMATIVE DEFENSE Sazerac has used, and continues to use, whatever trademark or trade dress rights it may have, the validity of which are specifically denied, with the intent and result of restraining trade 15 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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and of injuring competition, such that Sazeracs alleged trademark rights and/or trade dress rights are unenforceable in this action. 83. SIXTH AFFIRMATIVE DEFENSE There is no cognizable likelihood of confusion arising from the selection, adoption or use of SINFIRE. 84. SEVENTH AFFIRMATIVE DEFENSE Sazerac can recover nothing on its trademark and trade dress claims because the alleged trademarks and trade dress lack secondary meaning. 85. EIGHTH AFFIRMATIVE DEFENSE Sazerac can recover nothing on its trademark and trade dress claims because the alleged trademarks and trade dress are functional. 86. NINTH AFFIRMATIVE DEFENSE Sazerac can recover nothing because of Sazeracs unclean hands. 87. TENTH AFFIRMATIVE DEFENSE Sazeracs claims are barred by the doctrine of fair use. // // 16 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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88. ELEVENTH AFFIRMATIVE DEFENSE Sazeracs claims are barred by the equitable doctrines of laches, estoppel, waiver and acquiescence. 89. TWELFTH AFFIRMATIVE DEFENSE Defendant denies that Sazeracs federal trademark registrations for FIREBALL (3,550,110), FIREBALL & Design (3,734,227), FIREBALL (2,852,432) and FIRE WATER (1,819,150) are valid registrations because the marks are or have become generic when used in connection with whiskey and alcoholic beverages. Such use is, therefore, not entitled to the legal presumptions awarded to a federal trademark owner by the issuance of a federal trademark registration and such registrations are subject to cancellation under Section 14 of the Lanham Act, 15 U.S.C. 1064. 90. THIRTEENTH AFFIRMATIVE DEFENSE For the reasons as set forth with particularity in Hood Rivers Counterclaim, Sazerac is not entitled to maintain this suit or to assert infringement by Hood River by reason that the terms FIRE WATER and FIREBALL are, or have become, generic for the registered goods. 91. FOURTEENTH AFFIRMATIVE DEFENSE Sazerac cannot show irreparable injury, and therefore is not entitled to injunctive relief.
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92. FIFTEENTH AFFIRMATIVE DEFENSE Hood River reserves its right to assert additional defenses and counterclaims as information supportive of those defenses and counterclaims is discovered. *** *** *** COUNTERCLAIM Defendant/Counterclaimant, Hood River Distillers, Inc. (Hood River) for its Counterclaim against Plaintiff/Counter-Defendant Sazerac, Inc. (Sazerac), states as follows: 93. This Counterclaim arises under the Lanham Act, 15 U.S.C. 1501, et seq., and seeks cancellation of Sazeracs United States Trademarks: FIREBALL (3,550,110), FIREBALL & Design (3,734,227), FIREBALL (2,852,432) and FIRE WATER (1,819,150). PARTIES 94. Hood River is an Oregon corporation having its principal place of business in Hood River, Oregon. 95. Sazerac is a Louisiana corporation having its principal place of business in New Orleans, Louisiana. // //
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JURISDICTION AND VENUE 96. This Court's jurisdiction arises from the fact that this is an action arising under the trademark laws of the United States, 15 U.S.C. 1051 et seq., jurisdiction being conferred in accordance with 15 U.S.C. 1064, 1121 and 1125 and 28 U.S.C. 1331, 1338 and 1367. 97. Venue is proper under 28 U.S.C. 1391(b) because Sazerac conducts regular and systematic business in this district, committed the tortuous conduct in this district, and/or a substantial part of the events or omissions giving rise to the claim occurred in this district. FACTS 98. On information and belief, Sazerac procured federal trademark registrations for FIREBALL for liqueurs (Reg. No. 2,852,432), FIREBALL for whiskey (Reg. No. 3,550,110) and FIREBALL and Design for whiskey (Reg. No. 3,734,227) (Collectively FIREBALL Registrations). 99. On information and belief, Sazerac procured federal trademark registrations for FIRE WATER for liqueurs (Reg. No. 1,819,150) (FIRE WATER Registration). 100. The term fire water refers to an alcoholic beverage. // // 19 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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101. Fire Water is defined in various dictionaries to mean: [s]trong liquor, especially whiskey, AMERICAN HERITAGE DICTIONARY Mifflin Company, 2000); alcoholic liquor:
OF THE
ENGLISH LANGUAGE (4th ed., Houghton
now humorous, WEBSTERS NEW UNIVERSAL
UNABRIDGED DICTIONARY, (2nd ed., Dorest & Baber 1983); and strong alcoholic drink, WEBSTERS THIRD NEW INTERNATIONAL DICTIONARY (Merriam Webster, Inc., 1993). 102. The term fire is used by third parties to refer to recipes for alcoholic beverages that do not include Sazeracs products. 103. The term fire is used generically by third parties to refer to alcoholic beverages that include cinnamon flavoring. 104. The term fire is used generically by third parties to refer to alcoholic beverages that include any spicy flavoring, such as hot sauce. 105. The term fire is used in marks for alcoholic beverages not owned or licensed by Sazerac. 106. On information and belief, Sazerac had actual knowledge prior to filing the Complaint in this action that fire water means any alcoholic liqueur among consumers.
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107. A fireball is an alcoholic drink that includes an alcohol and a spicy flavoring element, such as cinnamon or hot sauce. 108. Published recipes for alcoholic drinks refer to drinks that include an alcohol and a spicy flavoring element, such as cinnamon or hot sauce, as a fireball. 109. Sellers of whiskey-based alcoholic drinks may use the term fireball as an apt description of their goods and services because the term is generic for a whiskey-based alcoholic drink. 110. On information and belief, Sazerac had actual knowledge prior to filing the Complaint in this action that fireball means a whiskey-based alcoholic drink among consumers. 111. Sazerac claims, which Hood River expressly denies, that SINFIRE is likely to cause confusion with the FIREBALL Registrations and FIRE WATER Registration. 112. Hood River will be irreparably damaged if Sazerac is allowed to maintain the FIREBALL Registrations and FIRE WATER Registration.
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COUNT I COUNTERCLAIM FOR CANCELLATION OF FIRE WATER 113. Hood River repeats, realleges, and incorporates by reference Paragraphs 93 through 112 of the Counterclaim as if fully set forth herein. 114. Fire water refers to the class or category of alcohols, such as liqueurs, which are the goods for which Sazerac has registered the FIRE WATER Registration. 115. The primary significance of the term fire water to the purchasing public is an identification of a beverage being an alcoholic beverage, such as liqueur. 116. The FIRE WATER Registration is a generic term for the identified goods. 117. Fire water is generic for liqueur within the meaning of 15 U.S.C. 1052(e)(1) and Section 14 of the Trademark Act, 15 U.S.C. 1064. COUNT II COUNTERCLAIM FOR CANCELLATION OF FIREBALL 118. Hood River repeats, realleges, and incorporates by reference Paragraphs 93 through 112 of the Counterclaim as if fully set forth herein. // // 22 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT
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119. Fireball refers to the class or category of alcohols, including one comprising of whiskey, which are the goods for which Sazerac has registered the FIREBALL Registrations. 120. The primary significance of the term fireball to the purchasing public is an identification of a beverage being an alcoholic beverage, including one comprising of whiskey, and including a spicy flavoring element, such as cinnamon or hot sauce. 121. The FIREBALL Registrations are generic terms for the identified goods. 122. Fireball is generic for liqueur and/or whiskey within the meaning of 15 U.S.C. 1052(e)(1) and Section 14 of the Trademark Act, 15 U.S.C. 1064. // // //
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PRAYER FOR RELIEF Wherefore, given Hood Rivers above Answer and Counterclaim, Hood River respectfully requests that this Court grant it the following relief: 1. That the Complaint be dismissed with prejudice and judgment granted in Hood Rivers favor; 2. That the Court direct the United States Commissioner For Trademarks, pursuant to 15 U.S.C. 1119, to cancel Sazeracs United States Trademark Reg. No. 2,852,432, Reg. No. 3,550,110, Reg. No. 3,734,227 and Reg. No. 1,819,150; 3. That the Court award Hood River its attorneys fees in connection with this litigation, this being an exceptional case pursuant to the Lanham Act, 15 U.S.C. 1051 et seq.; 4. That the Court award Hood River its costs in connection with this litigation; 5. A trial by jury on all claims; and 6. Such other and further relief as the Court may deem just and proper. JURY DEMAND Hood River demands a trial to a jury on all issues so triable.
DATED: February 7, 2013 Respectfully submitted, MacMILLAN, SCHOLZ & MARKS, P.C. s/Megan L. Ferris ROBERT D. SCHOLZ, OSB #77337 MEGAN L. FERRIS, OSB #063404 Of Attorneys for Defendant Hood River Distillers, Inc.
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CERTIFICATE OF SERVICE
I HEREBY CERTIFY that I served the foregoing DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT upon the following attorney on the 7th of February, 2013 via First Class Mail at the addresses listed below. Scott P. Zoppoth The Zoppoth Law Firm 1600 Kentucky Home Life Building 239 South Fifth Street Louisville, KY 40202 Telephone: (502) 568-8884 Fax: (502) 568-1319 spz@zoplaw.com Peter J. Willsey pwillsey@cooley.com Cooley LLP 777 6th Street, NW, Ste 1100 Washington, D.C. 20001 Telephone: (202) 842-7800 Fax: (202) 842-7899 Todd S. Bontemps tbontemps@cooley.com Lori F. Mayall lmayall@cooley.com Cooley LLP 5 Palo Alto Sq., 3000 El Camino Real Palo Alto, CA 94306-2155 Telephone: (650) 843-5000 Fax: (650) 849-7400 Attorneys for Plaintiff Sazerac Company, Inc. Respectfully submitted, MacMILLAN, SCHOLZ & MARKS, P.C. /s/Megan L. Ferris ROBERT D. SCHOLZ, OSB #77337 MEGAN L. FERRIS, OSB #063404 Of Attorneys for Defendant Hood River Distillers, Inc. 25 DEFENDANT HOOD RIVER DISTILLERS, INC.,S ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIM TO PLAINTIFF'S FIRST AMENDED COMPLAINT

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Case 3:12-cv-02304-HU

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ENGLISH LANGUAGE (4th ed., Houghton

now humorous, WEBSTERS NEW UNIVERSAL

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