Twi Harder

Case 2:14-cv-00104-R-PJW Document 16 Filed 01/27/14 Page 1 of 204 Page ID #:384
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-2-

DeIendants and Counterclaimants Lions Gate Entertainment Corp. ('Lions
Gate) and Summit Entertainment, LLC ('Summit) (collectively, 'DeIendants)
hereby answer the Complaint oI PlaintiII and Counter-DeIendant Between the Lines
Productions, LLC ('PlaintiII) as Iollows:
1URISDICTION AND VENUE
A. SUB1ECT MATTER 1URISDICTION
1. DeIendants admit that PlaintiII`s action arises under the laws oI the
United States and that the Iirst two counts may be entertained under the original
jurisdiction oI this Court. DeIendants deny the remaining allegations in Paragraph 1
oI the Complaint.
2. Admit.
3. Admit.
4. DeIendants cannot admit or deny Paragraph 4 oI the Complaint because
it is not an allegation but a request oI the Court. Further, DeIendants deny that
Count III is a valid claim.
B. PERSONAL 1URISDICTION
5. DeIendants admit that Lions Gate is a publicly traded North American
company listed on the New York Stock Exchange with a small oIIice in New York.
DeIendants deny the remaining allegations in Paragraph 5 oI the Complaint.
6. DeIendants admit that Summit is a wholly-owned subsidiary oI Lions
Gate that transacts business within the Southern District oI New York. DeIendants
deny the remaining allegations in Paragraph 6 oI the Complaint.
C. VENUE
7. DeIendants admit that they transact business in the Southern District oI
New York. DeIendants deny the remaining allegations in Paragraph 7 oI the
Complaint, and particularly that venue in the Southern District oI New York was or
is a convenient Iorum Ior PlaintiII, a CaliIornia limited liability company, and
DeIendants, both oI which are headquartered in CaliIornia.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-3-

PARTIES
A. PLAINTIFF
8. DeIendants admit that PlaintiII is a CaliIornia liability company.
DeIendants are without knowledge or inIormation suIIicient to Iorm a belieI as to
the remaining allegations in Paragraph 8 oI the Complaint and on that basis deny
them.
9. DeIendants are without knowledge or inIormation suIIicient to Iorm a
belieI as to the allegations in Paragraph 9 oI the Complaint and on that basis deny
them.
them.
them.
B. DEFENDANTS
12. DeIendants admit that Lions Gate is a Canadian company,
headquartered in CaliIornia and in the business oI motion picture production and
distribution, television programming and syndication, home entertainment, Iamily
entertainment, digital distribution, new channel platIorms and international
distribution and sales. DeIendants deny the remaining allegations in Paragraph 12
oI the Complaint.
13. Admit.
14. Admit.
15. Admit.
/ / /

/ / /
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-4-

THE TWILIGHT SAGA MOVIE FRANCHISE
A. BOOK
17. DeIendants admit that Stephenie Meyer is the author oI a series oI Iour
novels, the Iirst oI which is named Twilight. DeIendants are without knowledge or
inIormation suIIicient to Iorm a belieI as to the remainder oI allegations in
Paragraph 17 oI the Complaint or their purported source and on that basis deny
them.
1

belieI as to the allegations in Paragraph 18 oI the Complaint or their purported
source and on that basis deny them.
B. MOVIES
20. DeIendants admit that Summit, on November 21, 2008, released the
movie Twilight in the United States, which was based on the best-selling book oI the
same name by Stephenie Meyer. DeIendants admit that Twilight and its sequels are
reIerred to as The Twilight Saga. DeIendants admit that Twilight is, in part, a
Iantasy romance about teenagers and vampires who attend a high school in the
United States. DeIendants deny the remaining allegations oI Paragraph 20 oI the
Complaint.
second movie in The Twilight Saga, The Twilight Saga. New Moon ('New Moon),
in the United States, which was based on the best-selling book New Moon by
Stephenie Meyer. DeIendants are without knowledge or inIormation suIIicient to

1
The Complaint does not include a Paragraph 16. Thus, DeIendants have
omitted Paragraph 16 Irom their Answer.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-5-

Iorm a belieI as to the remainder oI allegations in Paragraph 21 oI the Complaint
and on that basis deny them.
22. DeIendants admit that Summit, on June 30, 2010, released the third
movie in The Twilight Saga, The Twilight Saga. Eclipse ('Eclipse), in the United
States.
Iourth movie in The Twilight Saga, The Twilight Saga. Breaking Dawn Part 1, in
the United States. DeIendants are without knowledge or inIormation suIIicient to
IiIth movie in The Twilight Saga, The Twilight Saga. Breaking Dawn Part 2, in
the United States. DeIendants are without knowledge or inIormation suIIicient to
C. ~TWIHARD FANATICS
25. DeIendants admit that Twilight has a dedicated and loyal Ian base, the
Iact oI which was documented by the media. DeIendants are without knowledge or
inIormation suIIicient to Iorm a belieI as to the remainder oI allegations in
Paragraph 25 oI the Complaint and on that basis deny them.
26. DeIendants admit that the term 'twihard has been used to reIer to Ians
oI The Twilight Saga. DeIendants are without knowledge or inIormation suIIicient
to Iorm a belieI as to the remainder oI allegations in Paragraph 26 oI the Complaint
27. DeIendants admit that the term 'twihard has been used to reIer to Ians
oI The Twilight Saga. DeIendants are without knowledge or inIormation suIIicient
to Iorm a belieI as to the remainder oI allegations in Paragraph 27 oI the Complaint
or their purported source and on that basis deny them.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-6-

them.
D. CONTROVERSIAL VIEWPOINTS
35. DeIendants admit that The Twilight Saga is popular. DeIendants are
without knowledge or inIormation suIIicient to Iorm a belieI as to the allegations in
Paragraph 35 oI the Complaint and on that basis deny them.
them.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-7-

37. DeIendants admit that teenagers are among the demographics to which
Summit has marketed The Twilight Saga. DeIendants deny the remaining
allegations in Paragraph 37 oI the Complaint.
38. DeIendants admit that The Twilight Saga addresses some serious and
mature issues. DeIendants deny the remaining allegations in Paragraph 38 oI the
Complaint.
39. DeIendants admit that Summit`s counsel has written that The Twilight
Saga is known Ior its wholesomeness. DeIendants deny the remaining allegations in
Paragraph 39 oI the Complaint.
43. Deny.
44. DeIendants admit that one oI the main plots oI The Twilight Saga is the
relationship between Bella Swan and Edward Cullen. DeIendants deny the
remaining allegations oI Paragraph 44 oI the Complaint.
45. Deny.
46. Deny.
/ / /

/ / /

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-8-

DEFENDANTS` SELF-AUTHORIZED SPOOFS OF
1HE 1WILICH1 SACA MOVIES
A. VAMPIRE SUCKS (2010)
them.
48. Deny.
49. Deny.
50. Deny.
51. Deny.
them.
them.
them.
them.
them.
them.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-9-

them.
them.
them.
them.
them.
them.
them.
them.
B. BREAKING WIND (2012)
66. DeIendants admit that Breaking Wind is an authorized parody oI
Eclipse.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-10-

67. DeIendants admit that Breaking Wind relates to characters and plotlines
in The Twilight Saga. DeIendants are without knowledge or inIormation suIIicient
to Iorm a belieI as to the remaining allegations in Paragraph 67 oI the Complaint
68. DeIendants admit that Breaking Wind relates to characters and plotlines
in Eclipse. DeIendants are without knowledge or inIormation suIIicient to Iorm a
belieI as to the remaining allegations in Paragraph 68 oI the Complaint and on that
basis deny them.
69. DeIendants admit that Breaking Wind was marketed with DeIendants`
permission as a parody oI The Twilight Saga. DeIendants are without knowledge or
inIormation suIIicient to Iorm a belieI as to the remaining allegations in Paragraph
69 oI the Complaint and on that basis deny them.
them.
them.
72. DeIendants admit that Lions Gate provided this synopsis to certain
retailers oI Breaking Wind. PlaintiII has added bolded Ionts and underlines to the
synopsis which were not present in the version provided by DeIendants.
73. DeIendants admit that a subsidiary oI Lions Gate released Breaking
Wind, which was marketed with DeIendants` permission as a parody oI The Twilight
Saga. DeIendants are without knowledge or inIormation suIIicient to Iorm a belieI
as to the remaining allegations in Paragraph 73 oI the Complaint and on that basis
deny them.
74. Admit.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-11-

75. DeIendants admit that Breaking Wind was theatrically released in
Ioreign markets, including Brazil, Italy, the Philippines, and Singapore. DeIendants
are without knowledge or inIormation suIIicient to Iorm a belieI as to the remaining
allegations in Paragraph 75 oI the Complaint and on that basis deny them.
76. Admit.
77. DeIendants admit that Breaking Wind is available Ior digital download
at the Apple iTunes store. DeIendants are without knowledge or inIormation
suIIicient to Iorm a belieI as to the remaining allegations in Paragraph 77 oI the
Complaint and on that basis deny them.
them.
them.
80. DeIendants admit that a version oI Breaking Wind released in the U.S.
is labeled as 'Unrated/Director`s Cut. DeIendants are without knowledge or
inIormation suIIicient to Iorm a belieI as to the remaining allegations in Paragraph
80 oI the Complaint and on that basis deny them.
them.
1WIHARDER: PLAINTIFF`S COMEDIC SPOOF
A. PRODUCTION
them.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-12-

them.
them.
them.
them.
them.
B. KEY ~TWIHARDER ASSETS
88. DeIendants cannot admit or deny Paragraph 88 oI the Complaint
because it is not an allegation.
C. INITIAL USE IN COMMERCE OF 1WIHARDER MOVIE TITLE
90. Deny.
them.
them.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-13-

D. INITIAL PRODUCTION OF PLAINTIFF`S AUDIOVISUAL WORKS
them.
them.
them.
them.
them.
E. INITIAL USE IN COMMERCE OF PLAINTIFF`S LOGO & TRADE
DRESS
them.
them.
F. <1WIHARDER> WEBSITE
them.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-14-

101. DeIendants admit that the website on www.twiharder.com~ is
operational and appears to serve as promotional website Ior the motion picture
Twiharder. DeIendants are without knowledge or inIormation suIIicient to Iorm a
belieI as to the remaining allegations in Paragraph 101 oI the Complaint and on that
basis deny them.
102. DeIendants admit that the quoted language appears on the website on
www.twiharder.com~. DeIendants are without knowledge or inIormation
suIIicient to Iorm a belieI as to the remaining allegations in Paragraph 102 oI the
Complaint and on that basis deny them.
DEFENDANTS` OB1ECTIVELY BASELESS C&D CAMPAIGN
A. ~TWIHARDER VS. ~TWIHARD
103. DeIendants admit that it received an email Irom Amy Wright who
purported to act on behalI oI PlaintiII. DeIendants deny that Ms. Wright`s legal
analysis and Iactual recitation stated in such correspondence is or was correct.
104. Admit.
105. DeIendants admit that on December 14, 2011, Summit requested that
the PTO divide its application to register TWIHARD, Ser. No. 85/128,736.
B. DEFENDANTS` INTERFERENCE WITH WORLDWIDE
DISTRIBUTION
them.
107. DeIendants admit that on June 13, 2012, Summit requested a second
extension with the PTO to Iile a Statement oI Use with respect to its application to
register TWIHARD, Ser. No. 85/128,736. DeIendants deny the remaining
allegations in Paragraph 107 oI the Complaint.
108. Deny.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-15-

109. DeIendants admit that Summit`s attorneys sent PlaintiII a cease and
desist letter dated June 27, 2012 regarding Twiharder. DeIendants deny that the
letter was a 'sham and the remaining allegations in Paragraph 109 oI the
Complaint.
110. DeIendants admit that the blocked quote reIerenced by PlaintiII is
Irom Summit`s cease and desist letter dated June 27, 2012 to PlaintiII. DeIendants
deny the remaining allegations in Paragraph 110 oI the Complaint.
111. DeIendants admit that Summit`s cease and desist letter dated June 27,
2012 to PlaintiII included certain demands oI PlaintiII. DeIendants deny the
remainder oI the allegations in Paragraph 111 oI the Complaint.
112. DeIendants admit that Summit Iirst communicated with an individual
purporting to act on the behalI oI PlaintiII in December 2011. DeIendants are
without knowledge or inIormation suIIicient to Iorm a belieI as to the remaining
allegations in Paragraph 112 oI the Complaint and on that basis deny them.
113. Admit.
114. DeIendants admit that the blocked quote reIerenced by PlaintiII is Irom
Summit`s attorneys` letter to PlaintiII`s attorney dated April 18, 2013. DeIendants
deny the remainder oI the allegations in Paragraph 114 oI the Complaint.
115. DeIendants admit that the blocked quotes reIerenced by PlaintiII are
Irom Summit`s cease and desist letter dated June 27, 2012 to PlaintiII. DeIendants
deny the remainder oI the allegations in Paragraph 115 oI the Complaint.
Summit`s cease and desist letter dated June 27, 2012 to PlaintiII. DeIendants deny
the remainder oI the allegations in Paragraph 116 oI the Complaint.
Summit`s letter dated July 24, 2012 to PlaintiII`s attorney. DeIendants deny the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-16-

because it is not an allegation, but a legal conclusion.
119. Deny.
120. Deny.
because it is not an allegation, but a legal conclusion.
122. Deny, to the extent DeIendants understand the allegation, which is
unintelligible.
123. Deny.
124. Deny.
128. DeIendants admit that their letter dated July 24, 2012 to PlaintiII`s
counsel included certain demands oI PlaintiII. DeIendants deny the remainder oI
the allegations in Paragraph 128 oI the Complaint. Further, PlaintiII`s allegations
containing its interpretation oI settlement oI this dispute is improper under
Fed.R.Evid. 408.
129. DeIendants admit that in correspondence dated October 3, 2012,
PlaintiII`s counsel wrote that PlaintiII would change the title oI Twiharder,
surrender its domain name, and graphically alter its movie logo as part oI a mutual
release and settlement. DeIendants deny the remainder oI the allegations in
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-17-

Paragraph 129 oI the Complaint. Further, PlaintiII`s allegations containing its
interpretation oI settlement oI this dispute is improper under Fed.R.Evid. 408.
Summit`s letter dated October 30, 2012 to PlaintiII`s attorney. DeIendants deny the
remainder oI the allegations in Paragraph 130 oI the Complaint. Further, PlaintiII`s
allegations containing its interpretation oI settlement oI this dispute is improper
under Fed.R.Evid. 408.
131. DeIendants admit that the quote reIerenced by PlaintiII is Irom
Summit`s letter dated January 15, 2013 to PlaintiII`s attorney, albeit in the Iollowing
context (which PlaintiII omitted): 'Summit cannot agree to settlement oI this
dispute short oI Between the Lines Productions` agreement to stop all display and
eIIorts to distribute the Twiharder Iilm, including any use on any websites or
solicitations Ior sale or distribution. DeIendants deny the remainder oI the
allegations in Paragraph 131 oI the Complaint. Further, PlaintiII`s allegations
containing its interpretation oI settlement oI this dispute is improper under
Fed.R.Evid. 408.
132. DeIendants admit that the blocked quote reIerenced by PlaintiII
combines two sentences Irom Summit`s letter dated January 15, 2013 to PlaintiII`s
attorney, although PlaintiII has misleadingly edited the two sentences so that they
appear to have appeared in succession, when, in Iact, they do not. DeIendants deny
the remainder oI the allegations in Paragraph 132 oI the Complaint. Further,
PlaintiII`s allegations containing its interpretation oI settlement oI this dispute is
improper under Fed.R.Evid. 408.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-18-

them.
135. Deny.
136. Deny.
Summit`s letter dated January 15, 2013 to PlaintiII`s attorney. DeIendants deny the
COUNT I
(Declaratory 1udgment of Non-Infringement - Copyrighted Motion Pictures)
138. DeIendants repeat and reallege every response set Iorth above as iI set
Iorth Iully herein.
139. DeIendants admit that the parties` dispute regarding PlaintiII`s
copyright inIringement suIIices to establish a 'case oI actual controversy.
DeIendants deny the remainder oI the allegations in Paragraph 139 oI the
Complaint.
/ / /

/ / /

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-19-

COUNT II
(Declaratory 1udgment of Non-Infringement/Non-Dilution - Trademarks &
Servicemarks)
Iorth Iully herein.
145. DeIendants admit that Summit sent PlaintiII a cease and desist letter
dated June 27, 2012, the contents oI which speak Ior itselI. DeIendants deny the
remaining allegations oI Paragraph 145 oI the Complaint.
146. DeIendants admit that Summit has not withdrawn its allegation that
PlaintiII`s actions violate Summit`s rights under the Lanham Act. DeIendants deny
the remaining allegations oI Paragraph 146.
COUNT III
(Prima Facie Tort - Damages)
Iorth Iully herein.
150. Deny.
151. Deny.
152. Deny.
153. Deny. Further, PlaintiII`s allegations containing its interpretation oI
settlement oI this dispute is improper under Fed.R.Evid. 408.
154. Deny.
155. Deny.
/ / /

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-20-

PLAINTIFF`S PRAYER FOR RELIEF
DeIendants deny that PlaintiII is entitled to (i) any judgment, declaration,
order, or decree against DeIendants and/or (ii) any relieI equitable or otherwise
requested in PlaintiII`s prayer Ior relieI.
DEMAND FOR 1URY TRIAL
DeIendants request a trial by jury on all issues so triable in this action.
DEFENDANTS` AFFIRMATIVE DEFENSES
FIRST DEFENSE
(Failure to State a Claim)
PlaintiII Iails to state a claim Ior which relieI can be granted.
SECOND DEFENSE
(Laches)
PlaintiII`s claims are barred, in whole or part, by the doctrine oI laches.
THIRD DEFENSE
(Acquiescence)
PlaintiII`s claims are barred, in whole or part, by the doctrine oI acquiescence.
FOURTH DEFENSE
(Waiver)
PlaintiII`s claims are barred, in whole or part, by the doctrine oI waiver.
FIFTH DEFENSE
(Estoppel)
PlaintiII`s claims are barred, in whole or part, by the doctrine oI estoppel.
SIXTH DEFENSE
(Privilege)
PlaintiII`s claims are barred, in whole or part, because DeIendants` conduct is
privileged.
/ / /

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-21-

SEVENTH DEFENSE
(Unclean Hands)
PlaintiII`s claims are barred, in whole or part, by the doctrine oI unclean
hands.
EIGHTH DEFENSE
(Abuse of Process)
PlaintiII`s claims are barred, in whole or part, because oI its and/or its
counsel`s abuse oI process.
NINTH DEFENSE
(Vexatious Litigation - 28 U.S.C. 1927)
PlaintiII`s claims are barred, in whole or part, and/or its recovery, iI any, is
mitigated by its and/or its counsel`s unreasonable and vexatious multiplication oI
proceedings.
TENTH DEFENSE
(Statute of Limitations)
PlaintiII`s claims are barred, in whole or part, by the relevant statutes oI
limitations governing its claims.
ELEVENTH DEFENSE
(Subject-Matter 1urisdiction)
PlaintiII`s claims are barred, in whole or part, because the Court lacks
subject-matter jurisdiction.
TWELFTH DEFENSE
(Reservation of Rights and Remedies)
DeIendants reserve the right to raise additional deIenses as they become
aware oI them.
DEFENDANTS` PRAYER FOR RELIEF
WHEREFORE, DeIendants pray Ior judgment as Iollows:
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-22-

a. PlaintiII take nothing by way oI the Complaint and the Court dismiss
the Complaint with prejudice;
b. The Court enter judgment that DeIendants are the prevailing party in
this action;
c. The Court award DeIendants all their costs, expenses, and attorneys`
Iees; and
d. The Court award any and all other relieI to which DeIendants may be
entitled.

SUMMIT`S COUNTERCLAIMS
Summit, Ior its counterclaims against PlaintiII, alleges as Iollows:
1URISDICTION
1. This action arises under the trademark and anti-dilution laws oI the
United States, 15 U.S.C. 1125, et seq.; the Copyright Act oI 1976, as amended,
17 U.S.C. 101, et seq.; and under the statutory and common law oI unIair
competition. This Court has jurisdiction under 28 U.S.C. 1331 and 1338(a) and
(b), and 1367, 15 U.S.C. 1121, and 17 U.S.C. 501. This action arises under the
laws oI the United States.
2. Venue is proper under 28 U.S.C. 1391(b) and (c) because Summit
resides in this District and PlaintiII alleges it resides in this District, and, on
inIormation and belieI, PlaintiII is subject to personal jurisdiction in this District,
and/or a substantial part oI the events or omissions giving rise to property that is the
subject oI the action is situated in this District.
PARTIES
3. Summit is a Delaware limited liability company having its principal
place oI business in Santa Monica, CaliIornia.
4. On inIormation and belieI, PlaintiII is a CaliIornia limited liability
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-23-

company having its principal place oI business in Los Angeles, CaliIornia, and, on
inIormation and belieI, did and/or is doing business in the State oI CaliIornia and in
this District.
5. Does 1 through 10 are yet unknown persons that are or have been
involved in the production, distribution, and/or promotion oI PlaintiII`s Twiharder
motion picture, related promotional videos and materials, or related merchandise.
6. PlaintiII is subject to personal jurisdiction in this District.
FACTS
Summit`s Business, Trademarks, and Copyrights
7. Since at least as early as 1991, Summit and its predecessors have been
an active participant in the motion picture industry. Summit has produced and
distributed Iilms and related entertainment products, and has also been involved in
motion picture Iinancing, production, and distribution services.
8. Summit also licenses the trademarks associated with the motion
pictures it produces and distributes Ior use on various items oI merchandise,
including clothing, beverageware, and bags.
9. Summit is the producer and distributor oI the highly successIul Twilight
motion picture Iranchise, which is based on novels written by Stephenie Meyer.
The Iirst movie in the series, Twilight, is about a teenage girl, Bella Swan, who Ialls
in love with a vampire, Edward Cullen. Bella`s other suitor in the Iilm is Jacob
Black, a werewolI. The Iilm was theatrically released in the United States on
November 21, 2008. Following the release oI Twilight, Summit theatrically released
the Iollowing sequels: The Twilight Saga. New Moon ('New Moon), released in
the U.S. on November 20, 2009; The Twilight Saga. Eclipse ('Eclipse), released in
the U.S. on June 30, 2010; The Twilight Saga. Breaking Dawn Part 1, released in
the U.S. on November 18, 2011; and, the Iinal picture in the series, The Twilight
Saga. Breaking Dawn Part 2, released in the U.S. on November 16, 2012
(collectively, the 'Twilight Motion Pictures). Each oI the Twilight Motion Pictures
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-24-

was heavily promoted months beIore its release and was phenomenally successIul at
the theatrical box oIIice and in the home media market.
10. Summit is the owner oI the trademark TWILIGHT in block letters and
in a distinctive stylized Iont (the 'stylized TWILIGHT mark), the trademark THE
TWILIGHT SAGA, and other marks including the term TWILIGHT (collectively
the 'TWILIGHT Marks). Summit owns common law rights and Iederal
registrations oI the Iollowing TWILIGHT Marks: BELLA TWILIGHT in Class 14
(Reg. No. 4,222,783), BELLA TWILIGHT in Class 20 (Reg. No. 4,222,784),
LUNA TWILIGHT in Class 3 (Reg. No. 3,929,237), NOX TWILIGHT in Class 3
(Reg. No. 4,173,761), THE TWILIGHT SAGA in Class 4 (Reg. No. 4,079,451),
THE TWILIGHT SAGA in Class 5 (Reg. No. 4,016,125), THE TWILIGHT SAGA
in Class 9 (Reg. No. 4,177,174), THE TWILIGHT SAGA in Class 14 (Reg. No.
4,151,799), THE TWILIGHT SAGA in Class 16 (Reg. No. 4,177,175), THE
TWILIGHT SAGA in Class 16 (Reg. No. 4,321,492), THE TWILIGHT SAGA in
Class 18 (Reg. No. 4,324,927), THE TWILIGHT SAGA in Class 20 (Reg. No.
TWILIGHT SAGA in Class 45 (Reg. No. 4,012,682), TWILIGHT in Class 4 (Reg.
No. 4,175,905), TWILIGHT in Class 5 (Reg. No. 3,861,517), TWILIGHT in Class
9 (Reg. No. 3,884,386), TWILIGHT in Class 16 (Reg. No. 4,067,513), TWILIGHT
in Class 18 (Reg. No. 3,884,385), TWILIGHT in Class 21 (Reg. No. 4,063,716),
TWILIGHT in Class 25 (Reg. No. 3,944,718), TWILIGHT in Class 26 (Reg. No.
3,867,985), TWILIGHT in Class 28 (Reg. No. 4,096,676), TWILIGHT in Classes
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-25-

20 & 24 (Reg. No. 4,109,098), TWILIGHT in Classes 9 & 41 (Reg. No. 4,084,243),
TWILIGHT in Classes 41 & 45 (Reg. No. 3,756,560), TWILIGHT (Stylized) in
Class 5 (Reg. No. 4,239,625), TWILIGHT (Stylized) in Class 9 (Reg. No.
4,175,456), TWILIGHT (Stylized) in Class 9 (Reg. No. 4,268,558), TWILIGHT
(Stylized) in Class 11 (Reg. No. 4,175,208), TWILIGHT (Stylized) in Class 20
(Reg. No. 4,218,172), TWILIGHT (Stylized) in Class 21 (Reg. No. 4,094,221),
TWILIGHT (Stylized) in Class 22 (Reg. No. 4,135,884), TWILIGHT (Stylized) in
Class 24 (Reg. No. 4,103,469), TWILIGHT (Stylized) in Class 25 (Reg. No.
4,091,590), TWILIGHT (Stylized) in Class 30 (Reg. No. 4,350,445), TWILIGHT
(Stylized) in Class 41 (Reg. No. 4,103,470), TWILIGHT (Stylized) in Class 45
(Reg. No. 3,817,079), TWILIGHT TRACKER in Class 9 (Reg. No. 3,793,131),
THE TWILIGHT SAGA in Class 28 (Reg. No. 4,369,020), TWILIGHT (Stylized)
in Class 18 (Reg. No. 4,368,828), TWILIGHT (Stylized) in Class 21 (Reg. No.
4,368,830), TWILIGHT BRIDAL in Class 21 (Reg. No. 4,369,085), TWILIGHT
BRIDAL in Class 24 (Reg. No. 4,369,086), TWILIGHT (Stylized) in Class 26 (Reg.
No. 4,372,794), BELLA TWILIGHT in Class 24 (Reg. No. 4,384,462), TWIHARD
in Class 25 (Reg. No. 4,110,325), and TWIHARD in Class 25 (Reg. No. 4,376,816).
True and correct copies oI these certiIicates oI registration are attached hereto as
Exhibit A. Summit also has many additional pending Iederal trademark
applications to register the TWILIGHT Marks Ior use on various types oI goods and
services, copies oI which are attached hereto as Exhibit B. Summit`s Stylized
TWILIGHT mark is shown below:

11. Summit has licensed its TWILIGHT trademark to third parties to sell on
and in conjunction with clothing, bags, beverageware, and other products and
services. Summit`s licensees Iirst sold clothing bearing the TWILIGHT mark in
May 2008 and Iirst sold clothing bearing the TWIHARD mark in September 2008
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-26-

and continue to sell such clothing.
12. By virtue oI the popularity oI the Twilight Motion Pictures, the
signiIicant sales oI licensed merchandise, and the signiIicant publicity relating to the
Twilight Motion Pictures, among other things, the TWILIGHT Marks have
developed secondary meaning in the marketplace and become Iamous.
13. Summit is the copyright owner oI all publicity, promotional, unit, and
special shoot photography relating to the Twilight Motion Pictures. SpeciIically,
and as pertinent to this matter, Summit is the copyright owner in promotional
posters Ior New Moon depicting the characters Edward, Jacob, and Bella (the 'New
Moon Poster) and characters Irom New Moon known as the 'WolIpack (the
'WolIpack Poster) as reIlected immediately below:

/ / /

/ / /

/ / /

/ / /
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-27-

Summit is also the copyright owner Ior a promotional poster Ior Eclipse depicting
the characters Edward, Bella, and Jacob (the 'Eclipse Poster), as reIlected
immediately below:

Summit registered its copyright ownership in the New Moon Poster with the U.S.
Copyright OIIice on November 6, 2009, which was granted Registration No. VA 1-
689-491. Summit registered its copyright ownership in the WolIpack Poster with
the U.S. Copyright OIIice on November 6, 2009, which was granted Registration
No. VA 1-689-492. Summit registered its copyright ownership in the Eclipse Poster
with the U.S. Copyright OIIice on June 25, 2011, which was granted Registration
No. VA 1-778-457. True and correct copies oI these registrations are attached
hereto as Exhibit C.
14. Summit also owns the copyrights in the Twilight Motion Pictures
themselves. Summit has registered its copyright ownership oI the above works with
the U.S. Copyright OIIice as Iollows:
Title of Work Reg. No. and Date Authorship Nature of Work
Twilight PA 1-616-599
December 12, 2008

Summit Motion Picture
The Twilight Saga:
New Moon
PA 1-653-512
November 24,
2009

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-28-

The Twilight Saga:
Eclipse
PA 1-689-175
July 2, 2010

The Twilight Saga:
Breaking Dawn
Part 1
PA 1-758-397
November 18,
2011

The Twilight Saga:
Breaking Dawn
Part 2
PA 1-812-965
November 13,
2012

True and correct copies oI the above copyright registrations are attached hereto as
Exhibit D.
15. Summit has licensed its copyrighted photographs to third parties to
promote the Twilight Motion Pictures, as well as Ior use on clothing and other
products related to the Twilight Motion Pictures and/or bearing the TWILIGHT
mark.
16. Summit owns copyrights in various other photographs and artwork
associated with and derived Irom the Twilight Motion Pictures.
Plaintiff and its Infringing Actions
17. On inIormation and belieI, PlaintiII is a production company in the
business oI developing and producing motion pictures.
18. On inIormation and belieI, PlaintiII`s principals are John Gearries and
Christopher Sean Friel, a.k.a. or p.k.a. Christopher Sean.
19. Around late 2011 or early 2012, Summit became aware oI the Iact that
PlaintiII had produced or was producing a motion picture entitled Twiharder
without Summit`s authorization or permission. The motion picture is based on the
Twilight Motion Pictures speciIically, Twilight and New Moon and their
plotlines and characters. The motion picture`s title, Twiharder, is derived Irom the
term 'twihard, which is associated with the Twilight Motion Pictures and Ians
thereoI, and, as reIlected above, PlaintiII has registered its trademark rights in
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-29-

TWIHARD Ior use with clothing. To promote its motion picture, PlaintiII, without
Summit`s authorization, uses the word 'twiharder in a Iont intentionally similar to
Summit`s Stylized TWILIGHT Mark, as shown below:

20. PlaintiII promotes its motion picture on a website on the domain name
www.twiharder.com~, which Ieatures, among other things, promotional artwork
(described in greater detail below) and trailers Ior and music videos related to
Twiharder. PlaintiII solicits donations on its website that can be made via
PayPal.com~. PlaintiII distributes through its website and other channels posters
and other artwork to promote Twiharder and a purported sequel, Twiharder. Wav
Harder, many oI which, without Summit`s authorization, intentionally approximate
Summit`s promotional materials Ior New Moon and Eclipse, as reIlected below:
Plaintiff`s Work Summit`s Work

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-30-

PlaintiII oIIers Ior sale digital downloads oI the above posters, as well as other
artwork and music, on its website.
21. PlaintiII has oIIered Ior sale and sold, without Summit`s authorization,
various types oI merchandise including clothing, hats, beverageware, coasters,
notebooks, and tote bags bearing the TWIHARDER mark and promotional
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-31-

artwork related to Twiharder. Photographs oI examples oI these inIringing items
are attached hereto as Exhibit E and depicted immediately below:

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-32-

22. On inIormation and belieI, PlaintiII Iiled two applications to register
TWIHARDER. The Iirst such application was Iiled on July 14, 2010 and sought
registration oI TWIHARDER Ior 'Iuel pumps Ior service stations, which was
assigned Ser. No. 85/084,979. The specimen oI use submitted with PlaintiII`s Iirst
application was a Ilyer relating to PlaintiII`s motion picture. On November 3, 2010,
the U.S. Patent & Trademark OIIice ('PTO) issued an Examiner`s
Amendment/Priority Action reIusing registration oI this application on the ground
that the specimen submitted by PlaintiII did 'not show the applied-Ior mark used in
connection with any oI the goods and/or services speciIied in the application.
PlaintiII did not timely respond to the Examiner`s Amendment/Priority Action,
resulting in the abandonment oI that application. Subsequently, on June 27, 2011,
PlaintiII Iiled another application to register TWIHARDER Ior 'entertainment in the
nature oI a series oI short Iilms and Ieature Iilm, which was assigned Ser. No.
85/357,228. On October 13, 2011, the PTO issued an oIIice action reIusing
registration oI this application on a number oI grounds, including Summit`s prior-
Iiled application to register TWIHARD in Class 25, which Summit ultimately
divided and which matured into Registration Nos. 4,110,325 and 4,376,816.
PlaintiII never responded to the PTO`s oIIice action, and PlaintiII`s second
application to register TWIHARDER like its Iirst was abandoned.
23. On or around June 27, 2012, Summit sent PlaintiII a cease and desist
letter demanding that it cease its above-described inIringing actions and unIair
competition. A true and correct copy oI that letter is attached hereto as Exhibit F.
The parties and their counsels subsequently exchanged correspondences setting
Iorth their respective positions.
24. In December 2012, representatives oI Summit and its counsel attended
a screening oI Twiharder at PlaintiII`s Iormer counsel`s oIIice and at the invitation
oI PlaintiII and its Iormer counsel. The screening oI the motion picture did not allay
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-33-

Summit`s Iears but, instead, conIirmed its belieI that the motion picture and its
related promotional artwork inIringed Summit`s copyrights in and related to the
Twilight Motion Pictures and that PlaintiII`s use oI Twiharder as the title oI its
motion picture and on merchandise was likely to conIuse consumers into believing
that the motion picture and merchandise were associated, connected, or aIIiliated
with, or endorsed, sponsored, or approved by, Summit, when, in Iact, they were not.
The Parties` Litigation History
25. On May 28, 2013, PlaintiII, through its attorney James H. Freeman,
Esq., Iiled a 219-page 'Anti-Trust Complaint against DeIendants in the Southern
District oI New York, which was assigned to the Hon. Jed S. RakoII and given case
number 1:13-cv-03584-JSR. In this Iirst case, PlaintiII claimed that it was entitled
to: (1) a declaratory judgment that Twiharder was a Iair use under 17 U.S.C. 107;
(2) relieI Ior DeIendants` violation oI the Digital Millennium Copyright Act; (3)
relieI Ior DeIendants` violation oI the Sherman Anti-Trust Act; and (4) cancellation
oI certain oI the TWILIGHT Marks. PlaintiII also raised a challenge to the
constitutionality oI the Iair use test articulated in 17 U.S.C. 107.
26. On June 28, 2013, DeIendants Iiled a motion to transIer venue oI the
case to the Central District oI CaliIornia. On July 30, 2013, Judge RakoII granted
DeIendants` motion to transIer under 28 U.S.C. 1404, and the action was
transIerred to the Central District oI CaliIornia, where it was assigned to the Hon.
Margaret M. Morrow and assigned case number 2:13-cv-05699-MMM-CW.
27. Once the action was transIerred to the Central District oI CaliIornia,
DeIendants Iiled two motions to dismiss pursuant to Fed.R.Civ.P. 12(b)(6). In
response to DeIendants` Iirst motion, which sought dismissal oI PlaintiII`s antitrust
claim, trademark cancellation claim, and Digital Millennium Copyright Act claim,
PlaintiII voluntarily dismissed its trademark cancellation claim and Digital
Millennium Copyright Act claim by way oI its First Amended Complaint. In
response to the First Amended Complaint, DeIendants Iiled their second motion to
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-34-

dismiss, which again sought dismissal oI PlaintiII`s antitrust claim. Instead oI
deIending the motion, PlaintiII Iiled an application Ior entry oI deIault against
DeIendants Ior Iiling the second motion to dismiss, which was invalid on its Iace
and not granted.
28. PlaintiII then lodged numerous Iilings attacking the Clerk oI the Court
and Judge Morrow, which were construed by Judge Morrow as a motion to recuse.
The motion to recuse was assigned to the Hon. Beverly Reid O`Connell and was
denied. DeIendants thereaIter Iiled a motion to compel PlaintiII`s production oI
written responses and responsive documents, without objection, to DeIendants` First
Set oI Requests Ior Production oI Documents and Other Things, with a hearing
scheduled Ior January 21, 2014. While DeIendants` motion to compel was pending
and aIter PlaintiII`s application Ior entry oI deIault and motion to recuse were
denied, PlaintiII voluntarily dismissed its lawsuit pursuant to Fed.R.Civ.P. 41(a)(1).
29. The very next business day, December 16, 2013, PlaintiII re-Iiled its
case the present action again in the Southern District oI New York, which Judge
RakoII subsequently transIerred again to this District. In so ordering, Judge
RakoII noted that PlaintiII`s voluntary dismissal and reIiling oI the case in the
Southern District oI New York was 'a blatant case oI attempting to evade the
transIer oI this case to CaliIornia. Judge RakoII Iurther noted on the record that it
was 'only because |DeIendants` counsel| is not here will I not hear argument on
whether sanctions should be imposed on |P|laintiII`s counsel.
30. As oI the Iiling oI this Answer and Counterclaims, PlaintiII has not
served DeIendants or their agents with a summons or a copy oI the Complaint in this
case. Nevertheless, DeIendants are Iiling this Answer and Counterclaims in order to
move this case to completion, which has been delayed by PlaintiII`s assertion oI
meritless claims Ior damages and procedural shenanigans, including a motion
currently pending beIore Judge RakoII to certiIy his transIer orders in the prior and
instant actions Ior interlocutory appeal to the Second Circuit.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-35-

FIRST CAUSE OF ACTION
(False Designation of Origin and Unfair Competition - 15 U.S.C. 1125(a))
31. Summit repeats and realleges each and every allegation oI paragraphs 1
through 30, above, as though Iully set Iorth herein.
32. PlaintiII`s use oI TWIHARDER in connection with its motion picture
and promotional materials, merchandise, digital downloads, and other goods and
services related thereto as described above is likely to cause conIusion, or to cause
mistake, or to deceive as to the aIIiliation, connection, or association oI PlaintiII
with Summit or as to the origin, sponsorship, or approval oI PlaintiII`s motion
picture and promotional materials, merchandise, digital downloads, and other goods
and services related thereto by Summit or its commercial activities.
33. PlaintiII`s acts oI Ialse designation oI origin, aIIiliation, association, or
sponsorship and unIair competition violate 15 U.S.C. 1125(a).
34. As a direct and proximate result oI PlaintiII`s wrongIul acts, Summit
has suIIered and continues to suIIer and/or is likely to suIIer damage to its
trademarks, business reputation, and goodwill. PlaintiII will continue to use or, as
applicable, recommence use, unless restrained, oI the TWIHARDER mark Ior its
motion picture and promotional materials, merchandise, digital downloads, and
other goods and services related thereto, which is conIusingly similar to Summit`s
TWILIGHT Marks and likely to be associated with the Twilight Motion Pictures.
Such conduct will cause irreparable damage to Summit. Summit has no adequate
remedy at law and is entitled to an injunction restraining PlaintiII, its oIIicers,
agents, and employees, and all persons acting in concert with PlaintiII, Irom
engaging in Iurther acts oI Ialse designation oI origin, aIIiliation, association, or
sponsorship and unIair competition.
35. Summit is Iurther entitled to recover Irom PlaintiII the actual damages
that it sustained and/or is likely to sustain as a result oI PlaintiII`s wrongIul acts.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-36-

Summit is presently unable to ascertain the Iull extent oI the monetary damages that
it has suIIered and/or is likely to sustain by reason oI PlaintiII`s acts oI Ialse
designation oI origin, aIIiliation, association, or sponsorship and unIair competition.
36. Summit is Iurther entitled to recover Irom PlaintiII the gains, proIits,
and advantages that PlaintiII has obtained as a result oI its wrongIul acts. Summit is
presently unable to ascertain the extent oI the gains, proIits, and advantages that
PlaintiII has realized by reason oI its acts oI Ialse designation oI origin, aIIiliation,
association, or sponsorship and unIair competition.
37. Because oI the willIul nature oI PlaintiII`s wrongIul acts, Summit is
entitled to an award oI treble damages and increased proIits pursuant to 15 U.S.C.
1117 and destruction oI any physical goods bearing the TWIHARDER mark under
15 U.S.C. 1118.
38. Summit is also entitled to recover its attorneys` Iees and costs oI suit
pursuant to 15 U.S.C. 1117.
SECOND CAUSE OF ACTION
(Trademark Infringement - 15 U.S.C. 1114 and Common Law)
40. DeIendants have used in commerce, without Summit`s permission, the
TWILIGHT Marks and/or marks conIusingly similar thereto, such as
TWIHARDER, in connection with the sale, oIIering Ior sale, distribution, or
advertising its motion picture and promotional materials, merchandise, digital
downloads, and other goods and services related thereto as described above in a
manner that is likely to cause conIusion with respect to the source and origin oI
PlaintiII`s goods and services and is likely to cause conIusion or mistake and to
deceive purchasers as to the aIIiliation, connection, approval, sponsorship, or
association oI Summit and/or the Twilight Motion Pictures with PlaintiII and its
goods and services.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-37-

41. PlaintiII`s acts constitute inIringement oI the TWILIGHT Marks in
violation oI the common law and under 15 U.S.C. 1114.
42. As a direct and proximate result oI PlaintiII`s wrongIul acts, Summit
has suIIered and continues to suIIer and/or is likely to suIIer damage to its
trademarks, business reputation, and goodwill. PlaintiII will continue to use or, as
applicable, recommence use, unless restrained, oI the TWIHARDER mark or other
marks conIusingly similar to the TWILIGHT Marks and will cause irreparable
damage to Summit. Summit has no adequate remedy at law and is entitled to an
injunction restraining PlaintiII, its oIIicers, agents, servants, and employees, and all
persons acting in concert with PlaintiII, Irom engaging in Iurther acts oI
inIringement.
43. Summit is Iurther entitled to recover Irom PlaintiII the actual damages
that it sustained and/or is likely to sustain as a result oI PlaintiII`s wrongIul acts.
and advantages that PlaintiII has obtained as a result oI its wrongIul acts.
45. Because oI the willIul nature oI PlaintiII`s wrongIul acts, Summit is
entitled to an award oI punitive damages under the common law, and treble damages
and increased proIits under 15 U.S.C. 1117.
THIRD CAUSE OF ACTION
(Dilution--15 U.S.C. 1125(c); Cal. Bus. & Prof. Code 14247)
48. Summit`s TWILIGHT and TWIHARD marks are inherently distinctive
and have acquired distinctiveness through Summit`s extensive, continuous, and
exclusive use oI them and the amount, volume, and geographic extent oI sales oI
goods and services oIIered under the marks.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-38-

49. Summit`s TWILIGHT and TWIHARD marks have attained a high
degree oI actual recognition amongst the public.
50. Summit owns Iederal registrations oI the TWILIGHT and TWIHARD
marks on the Principal Register.
51. Summit`s TWILIGHT and TWIHARD marks are Iamous and
distinctive within the meaning oI 15 U.S.C. 1125(c)(1) and 1127 and Cal. Bus. &
ProI. Code 14247 and became Iamous prior to PlaintiII`s Iirst use in commerce oI
the TWIHARDER mark.
52. PlaintiII`s use oI the TWIHARDER mark is likely to impair the
distinctiveness oI, and harm the reputation oI or tarnish, Summit`s TWILIGHT and
TWIHARD marks in violation oI 15 U.S.C. 1125(c) and Cal. Bus. & ProI. Code
14247.
53. PlaintiII`s acts complained oI herein are likely to damage Summit
irreparably. Summit has no adequate remedy at law Ior such wrongs and injuries.
The damage to Summit includes harm to its trademarks, goodwill, and reputation
that money cannot compensate. Summit is, thereIore, entitled to a preliminary and
permanent injunction enjoining PlaintiII`s use oI the TWIHARDER mark, the
TWILIGHT and TWIHARD marks, or any marks conIusingly similar thereto or
dilutive thereoI in connection with the promotion, advertisement, and sale oI any
products or services oIIered by PlaintiII.
54. Summit is Iurther entitled to recover Irom PlaintiII its actual damages
sustained by Summit as a result oI PlaintiII`s wrongIul acts. Summit is presently
unable to ascertain the Iull extent oI the monetary damages it has suIIered by reason
oI PlaintiII`s acts oI dilution.
and advantages PlaintiII has obtained as a result oI its wrongIul acts. Summit is
presently unable to ascertain the extent oI the gains, proIits, and advantages PlaintiII
has realized by reason oI its willIul acts oI dilution. Because oI the willIul nature oI
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-39-

PlaintiII`s actions, Summit is entitled to all remedies available under 15 U.S.C.
1117 and 1118.
FOURTH CAUSE OF ACTION
(Statutory and Common Law Unfair Competition)
58. By reason oI all oI the Ioregoing and that alleged below, PlaintiII has
been, and is, engaged in 'unlawIul, unIair or Iraudulent business practices in
violation oI 17200 et seq. oI the CaliIornia Bus. & ProI. Code and acts oI unIair
competition in violation oI the common law.
59. In addition to the other acts alleged herein, PlaintiII has engaged in
unlawIul acts by inIringing and diluting the TWILIGHT Marks and otherwise
inIringing Summit`s intellectual property.
unIair acts by passing oII or suggesting that its motion picture and promotional
materials, merchandise, digital downloads, and other goods and services related
thereto are associated, connected, or aIIiliated with, or sponsored or endorsed by, the
Twilight Motion Pictures and by using names owned by Summit.
Iraudulent acts because the actions alleged herein are likely to deceive consumers
and other members oI the public.
62. Summit invested substantial time or money in the development oI the
TWILIGHT Marks and its copyrighted interests in and related to the Twilight
Motion Pictures, and PlaintiII used the Ioregoing to create, market, advertise, and
sell its motion picture and promotional materials, merchandise, digital downloads,
and other goods and services related thereto. PlaintiII has appropriated the
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-40-

Ioregoing without authorization Irom Summit.
63. PlaintiII`s acts complained oI herein have damaged and will continue to
damage Summit irreparably. Summit has no adequate remedy at law Ior these
wrongs and injuries. The damage to Summit includes harm to its intellectual
property related to the Twilight Motion Pictures, goodwill, and reputation in the
marketplace that money cannot compensate. Summit is thereIore entitled to: (a)
injunctive relieI restraining and enjoining PlaintiII and its oIIicers, agents, servants,
and employees, and all persons acting thereunder, in concert with, or on their behalI,
Irom using intellectual property related to the Twilight Motion Pictures or any mark,
name, symbol, or logo which is conIusingly similar thereto, in connection with the
marketing or sale oI any goods or services by PlaintiII; (b) Summit`s actual damages
sustained as a result oI PlaintiII`s wrongIul acts; (c) an accounting oI PlaintiII`s
proIits derived Irom its inIringing actions; (d) the award oI PlaintiII`s unjust proIits,
as well as sums suIIicient to compensate Summit Ior all harm suIIered as a result oI
PlaintiII`s conduct; and (e) punitive damages.
FIFTH CAUSE OF ACTION
(Copyright Infringement)
65. As described above, Summit is the owner oI the copyrights in the
Twilight Motion Pictures and photographs and images related thereto, including the
New Moon, WolIpack, and Eclipse Posters. At all times relevant to these
counterclaims, Summit is and has been the sole exclusive authorized licensor oI
such motion pictures, photographs, and images in the United States. Said motion
pictures, photographs, and images all are original works oI authorship owned by
Summit and are copyrightable subject matter under the laws oI the United States.
The motion pictures, images, and photographs were Iixed in a tangible medium by
development oI the Ioregoing and/or by uploading the Ioregoing to a hard drive.
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-41-

66. The Twilight Motion Pictures and the New Moon, WolIpack, and
Eclipse Posters are the subject oI valid copyright registrations issued by the U.S.
Copyright OIIice and owned by Summit. Such registrations are valid and
subsisting.
67. PlaintiII had access to the Twilight Motion Pictures and the New Moon,
WolIpack, and Eclipse Posters due to their wide publication, the international
theatrical and home entertainment releases oI the Twilight Motion Pictures, and the
publicity Ior the Twilight Motion Pictures. Certain oI PlaintiII`s promotional
materials, as described above, are intentionally substantially similar to the New
Moon, WolIpack, and Eclipse Posters, and Twiharder is intentionally substantially
similar to original, copyrightable elements oI the Twilight Motion Pictures. Each oI
the Twilight Motion Pictures and the New Moon, WolIpack, and Eclipse Posters
includes a copyright notice expressly claiming Summit`s copyright ownership
therein.
68. PlaintiII has violated Summit`s exclusive rights in and to the Twilight
Motion Pictures and the New Moon, WolIpack, and Eclipse Posters by reproducing,
displaying, distributing, and, as applicable, publicly perIorming substantially similar
works and by unlawIully preparing derivative works based thereon.
69. Upon inIormation and belieI, PlaintiII was at all material times aware
that its use oI the Twilight Motion Pictures and the New Moon, WolIpack, and
Eclipse Posters, in the absence oI a valid license agreement authorizing PlaintiII to
use them and/or to edit, alter, and/or otherwise modiIy them without Summit`s prior
written approval, would constitute copyright inIringement. Summit has not granted
to PlaintiII any such right or license.
70. PlaintiII`s acts constitute inIringement oI Summit`s copyrights
described above in violation oI 17 U.S.C. 501, et seq.
71. Summit is inIormed and believes and on that basis alleges that PlaintiII
had Iull knowledge that its acts were wrongIul and unlawIul and has continued to
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-42-

inIringe said copyrights, throughout the United States and various other territories oI
the world.
72. By reason oI the Ioregoing, Summit has suIIered damages in an amount
to be determined at trial, and is entitled, at its election, to either (a) all damages
suIIered by Summit, along with all gains, proIits, and advantages derived by
PlaintiII Irom the acts oI inIringement, plus exemplary and punitive damages in
amounts to be proven at trial, or (b) statutory damages as provided Ior in the
Copyright Act oI the United States.
73. Summit is also entitled to attorneys` Iees under the Copyright Act.
PRAYER FOR RELIEF
WHEREFORE, Summit prays that this Court enter judgment against PlaintiII
as Iollows:
1. Finding that PlaintiII has violated 15 U.S.C. 1125(a) and the common
law, has inIringed the TWILIGHT Marks under the common law and 15 U.S.C.
1114, has violated 15 U.S.C. 1125(c)(1) and Cal. Bus. & ProI. Code 14247,
has violated Cal. Bus. & ProI. Code 17200 and the common law by engaging in
unlawIul, unIair, and/or Iraudulent business practices, and has inIringed the Twilight
Motion Pictures and New Moon, WolIpack, and Eclipse posters and violated 17
U.S.C. 501;
2. Ordering that PlaintiII and, as applicable, its oIIicers, agents, servants,
directors, employees, servants, partners, representatives, assigns, successors, related
companies, and attorneys and all persons in active concert or participation with
PlaintiII or with any oI the Ioregoing be enjoined preliminarily during the pendency
oI this action and permanently thereaIter Irom:
a. ManuIacturing, transporting, promoting, importing, advertising,
publicizing, distributing, oIIering Ior sale, or selling any goods or services bearing
or oIIered under the TWIHARDER mark, the TWILIGHT Marks, or any other
mark, name, symbol, or logo which is likely to cause conIusion, or to cause mistake,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-43-

or to deceive as to the aIIiliation, connection, or association oI PlaintiII with Summit
or as to the origin, sponsorship, or approval oI any goods or services manuIactured,
transported, promoted, imported, advertised, publicized, distributed, oIIered Ior sale,
or sold by PlaintiII including, but not limited to, PlaintiII`s motion picture and
promotional materials, merchandise, digital downloads, and any other goods and
services related thereto by Summit or its commercial activities;
b. ManuIacturing, transporting, promoting, importing, advertising,
publicizing, distributing, oIIering Ior sale, or selling any goods or services bearing
or oIIered under the TWIHARDER mark, the TWILIGHT Marks, or any other
mark, name, symbol, or logo that is a copy or colorable imitation oI, incorporates, or
is conIusingly similar to the TWILIGHT Marks, including the TWIHARDER mark;
c. Implying Summit`s approval, aIIiliation, connection, or
sponsorship oI PlaintiII`s goods, services, or commercial activities or engaging in
any act or series oI acts which, either alone or in combination, constitutes unIair
methods oI competition with Summit and Irom otherwise interIering with or
injuring the TWILIGHT Marks or the goodwill associated therewith;
d. Engaging in any act which is likely to dilute the distinctive
quality oI the TWILIGHT Marks and/or injures Summit`s business reputation;
e. Reproducing, displaying, distributing, publicly perIorming, or
creating derivative works Irom the Twilight Motion Pictures or Summit`s
photographs, images, or any other copyrightable subject matter related thereto, or
any works substantially similar thereto, including Twiharder and PlaintiII`s above-
detailed promotional artwork related thereto, or engaging in any act in violation oI
Summit`s copyrights, including, but not limited to, inducing, causing, or materially
contributing to the inIringing conduct oI any third party copying, displaying,
Ieaturing, or using the Twilight Motion Pictures or Summit`s photographs, images,
or any other copyrightable subject matter related thereto;
I. Representing or implying that PlaintiII is in any way sponsored,
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

-44-

endorsed, or licensed by, or aIIiliated with, Summit; or
g. Knowingly assisting, inducing, aiding, or abetting any other
person or business entity in engaging in or perIorming any oI the activities reIerred
to in paragraphs 2(a) to (I) above.
3. Ordering that Summit is the exclusive owner oI the TWILIGHT Marks
and that such marks are valid and protectable;
4. Ordering that Summit is the exclusive owner oI the copyrights in the
Twilight Motion Pictures and the New Moon, WolIpack, and Eclipse posters, and
that such copyrights are valid and protectable;
5. Ordering that PlaintiII be required to deliver to Summit Ior destruction
all copies, regardless oI the media or Iormat in which they exist, oI the Twiharder
motion picture; all Iootage, regardless oI the media or Iormat in which they exist,
used to create the Twiharder motion picture, and any copies thereoI; and all scripts
oI the Twiharder motion picture;
6. Ordering that PlaintiII be required to deliver to Summit or destroy, as
applicable, all goods, packaging thereIor, electronic images or media in any Iormat,
and/or promotional artwork which bear the TWIHARDER mark or any other
trademarks, names, images logo, or packaging that are conIusingly similar to the
TWILIGHT Marks or are evocative oI or draw an association, aIIiliation, or
connection with the Twilight Motion Pictures or bear Summit`s copyrighted content
related to or derived Irom the Twilight Motion Pictures or anything substantially
similar thereto;
7. Granting an award oI damages suIIered by Summit according to prooI
at the time oI trial;
8. Ordering that PlaintiII account to Summit Ior any and all proIits earned
as a result oI PlaintiII`s acts oI inIringement in violation oI Summit`s rights under
the Lanham Act, Cal. Bus. & ProI. Code 14247, 17200, et seq., the Copyright
Act, and the common law;

EXHIBIT A
TO DEFENDANTS LIONS GATE ENTERTAINMENT CORP.`S AND
SUMMIT ENTERTAINMENT, LLC`S ANSWER; COUNTERCLAIMANT
SUMMIT ENTERTAINMENT, LLC`S COUNTERCLAIMS; AND
DEFENDANTS` REQUEST FOR 1URY TRIAL


EXHIBIT B


EXHIBIT C


EXHIBIT D


EXHIBIT E


EXHIBIT F


Twi Harder

Caricato da

Informazioni sul documento

Copyright

Formati disponibili

Condividi questo documento

Condividi o incorpora il documento

Opzioni di condivisione

Hai trovato utile questo documento?

Questo contenuto è inappropriato?

Copyright:

Formati disponibili

Twi Harder

Caricato da

Copyright:

Formati disponibili

Case 2:14-cv-00104-R-PJW Document 16 Filed 01/27/14 Page 1 of 204 Page ID #:384

Potrebbero piacerti anche