Consumerinfo.com Inc v. Jesse Willms et al

REPLY In Support MOTION for Partial Summary Judgment as to Defendants' Counterclaim and Affirmative Defenses 87

C.D. Cal.February 26, 2010

23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 RHONDA R. TROTTER, Bar Number 169241 rtrotter@kayescholer.com THEODORE W. MAYA, Bar Number 223242 tmaya@kayescholer.com KAYE SCHOLER LLP 1999 Avenue of the Stars, Suite 1700 Los Angeles, California 90067 Telephone: (310) 788-1000 Facsimile: (310) 788-1200 Attorneys for Plaintiff and Counter-Defendant CONSUMERINFO.COM, INC. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION CONSUMERINFO.COM, INC., a California corporation, Plaintiff, v. JESSE WILLMS, an individual; EDIRECT, a Canadian Partnership; 1016363 ALBERTA LTD., a Canadian Corporation; 1021018 ALBERTA LTD., a Canadian Corporation; all doing business as - Defendants. AND RELATED COUNTERCLAIM. ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) CASE NO. SA CV 09-0055 DMG (MLGx) PLAINTIFF CONSUMERINFO.COM, IN SUPPORT OF ITS MOTION FOR PARTIAL SUMMARY JUDGMENT Fed. R. Civ. P. 56 Statement of Genuine Issues; Evidentiary Objections] Hon. Dolly M. Gee Hearing Date: March 12, 2010 Time: 2:00 P.M. Place: Court Room 7 Spring Street Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 1 of 17 i 23283682.DOCX OPPOSITION TO DEFENDANT 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 TABLE OF CONTENTS REPLY MEMORANDUM OF POINTS AND AUTHORITIES ............................. 1 I. Introduction ..................................................................................................... 1 II. Argument ......................................................................................................... 2 A. Defendants Have Proffered No Evidence That ConsumerInfo Made Any False Statement to the PTO ................................................. 2 1. Fails as A Matter of Law ............................................................ 2 2. Fails ............................................................................................. 6 3. ...... 7 4. Fails As Well .............................................................................. 8 B. Reliance Do Not Save Their Fraud Claim ............................................ 9 C. Defendants Have Raised No Genuine Issue of Material Fact With Respect to Their Lack of Damage.............................................. 10 D. nses Fail as a Matter of Law ...................................................................................................... 11 1. .. 11 2. ence on Failure to Mitigate ..................................................................................... 12 3. Defendants Cannot Create a Triable Issue of Fact on Superseding Events and Acts of Third Parties ......................... 13 4. The In Pari Delicto and Allocation of Fault Defenses Fail ...... 13 5. Use Defenses Also Fail ............................................................. 13 III. Conclusion ..................................................................................................... 14 Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 2 of 17 ii 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 TABLE OF AUTHORITIES Cases Emco, Inc. v. Obst, 2004 WL 1737355 (C.D. Cal. May 7, 2004) ................................................. 12 Hana Fin., Inc. v. Hana Bank, 500 F. Supp. 2d 1228 (C.D. Cal. 2007) ................................................... 3, 4, 5 Intellimedia Sports, Inc. v. Intellimedia Corp., 43 U.S.P.Q.2d 1203 (TTAB, May 20, 1997) .............................................. 4, 5 King- , 547 F. Supp. 1138 (S.D. Tex. 1982)............................................................ 4, 5 Levi Strauss & Co. v. Shilon, 121 F.3d 1309 (9th Cir. 1997) .................................................................. 11, 12 Lowery v. Blue Steel Releasing, Inc., (9th Cir. 2007) ................................................................... 1 PerfumeBay.com, Inc. v. EBay, Inc., 506 F.3d 1165 (9th Cir. 2007) ........................................................................ 11 Semegen v. Weidner, 780 F.2d 727 (9th Cir. 1986) ............................................................................ 1 Weitzman v. Stein, 436 F. Supp. 895 (D.C.N.Y. 1977) ................................................................ 13 Statutes Federal Rule of Civil Procedure 9(b) ..................................................................... 1, 2 Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 3 of 17 1 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 I. Introduction tial entirely Federal Rule of Civil Procedure 9(b), Defendants not only attempt to re- write the purportedly fraudulent statements set forth in their counterclaim and unclean hands affirmative defense pleadings, Defendants resort to re-writing the content of written statements submitted by ConsumerInfo to the PTO. Defendants are bound under FRCP 9(b) to the specific purportedly fraudulent statements they set forth in their pleadings, and their desperate attempt to save their obviously unmeritorious legal theories should not be permitted. See ConsumerInfo -10); Lowery v. Blue Steel Releasing, Inc., , 2007 U.S. App. LEXIS 29896 at *19-20 (9th Cir. 2007). And, Rule 9(b) is not taken lightly by courts, becau notice of the particular misconduct which is alleged to constitute the fraud charged Semegen v. Weidner, 780 F.2d 727, 731 (9th Cir. 1986). Tellingly, Defendants do not set forth any argument as to why they should be excused from choose to ignore much otion on the key legal issues, and misconstrue the legal authority they do attempt to distinguish. Moreover, whether under the theories set forth in their pleadings, or their newly-asserted theories in their Opposition, Defendants have failed to raise a triable issue of material fact on their counterclaim or affirmative defenses, and entirety. Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 4 of 17 2 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 II. Argument A. Defendants Have Proffered No Evidence That ConsumerInfo Made Any False Statement to the PTO. fraudulent statements set forth in their pleadings failed as a matter of law to support their Counterclaim and unclean hands defense. Rather than abiding by the well-established principles of Rule 9(b), Defendants attempt to rescue their counterclaim and unclean hands defense through a combination of rewriting their factual allegations, and rewriting the statements ConsumerInfo made in its trademark application. Defendants entirely ignore Rule 9(b), and indeed do not respond at all to Consu Rule 9(b) in its moving papers. The reason for this is obvious: Defendants have no legal or factual basis to avoid Rule 9(b). In any event, whether based on their permissible theories set forth in their pleadings, or on their new improperly-asserted theories, Defendants fraud counterclaim and unclean hands defense fail as a matter of law. 1. Defendants Theory of Fraud Fails as A Matter of Law. Defendants have adopted two separate theories of fraud based related to ed the FREECREDITREPORT.COM mark, both of which are different from the actual statement ConsumerInfo made: Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 5 of 17 3 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 Counterclaim Opposition Brief Statements ConsumerInfo had engaged in use of [the Mark]. (Docket No. 6, Counterclaim at ¶ 20.) that no third party has used [the Mark] or a near resemblance thereto. Opposition to for Partial Summary Judgment at page 6, line 28 through page 7, line 1.) st of his/her knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in the identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, Judicial Notice in Support of Its Motion for Partial Summary Judgment, Exh. A page 11 (emphasis added).) Defendants entirely misconstrue Hana Financial, which expressly holds that are using the mark if he f Hana Fin., Inc. v. Hana Bank, 500 F. Supp. 2d 1228, 1235 (C.D. Cal. 2007). Hana makes clear that the standard for determining whether an applicant committed fraud Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 6 of 17 4 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 trademark rights to its rights. Id. at 1234-37. Rather than acknowledging that Hana deals a fatal blow to their fraud theory, Defendants make a feeble attempt to distinguish Hana on the basis that Hana Opp. at page 8, lines 20-21.) The Hana principle, however, is that the applicant must have superior trademark rights. An analogous T.T.A.B. decision that ConsumerInfo cited in its moving Intellimedia Sports. That decision cogently explains that the standard for establishing fraud is that the applicant is aware of a legal determination or binding agreement that another person has superior or clearly established trademark rights: mark, vis-à- not known by the applicant to be superior or clearly established, e.g., by court decree or prior agreement of the parties, then the applicant has a reasonable basis for believing that no one else has the right to use the mark in application declaration or oath is not fraudulent. Intellimedia Sports, Inc. v. Intellimedia Corp., 43 U.S.P.Q.2d 1203, 1207 (TTAB, May 20, 1997); Hana Financial, 500 F. Supp. 2d at 1234 (following Intellimedia). Likewise, in King- , 547 F. Supp. 1138 (S.D. Tex. 1982) declaration regarding exclusive use of the mark KING SIZE was fraudulent: hat at the time of the [applications] for registration . . . [plaintiffs] knew that others had the right to use name]. . . In this regard, it is not sufficient to prove that plaintiffs Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 7 of 17 5 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 failed to disclose that others were using the mark if plaintiffs did not believe that such third-parties had that right. Id. at 1166, emphasis in original. Hana, Intellimedia and King Size me 1 Opp. at page 7, lines 14-27) had it had been using in - First, Defendants have submitted no evidence that any of the owners of the purportedly thousands of websites had trademark rights in FREECREDITREPO trademark applicant who filed an application under section 2(f) of the Lanham Act which covers descriptive marks could be subject to a charge of fraud, even though the only third party use of the words was in a descriptive, rather than trademark, sense. Defendants cite no legal authority supporting this theory. Second, Defendants have no answer to the fact that Consumer ment that ConsumerInfo made a knowingly false statement about other parties using those words in domain names. Although Defend now name list which it was not required to submit ( Opp. at page 14, lines 2-3), Defendants cannot and do not raise an issue of material fact on the truth 1 Hana, 500 F. Supp. 2d. at 1233-34, cited in ConsumerInfo Motion at page 8, lines 23-24. Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 8 of 17 6 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 declaration. Nor can Defendants establish the PTO would have acted differently had ConsumerInfo submitted an even longer list of such domain names. counterclaim and unclean hands defense based on therefore fail as a matter of law. 2. Theory of Fraud Based on Confusion Also Fails. Defendants also re-write their counterclaim and unclean hands defense regarding lack of confusion: Counterclaim Opposition Brief the absence of a likelihood of confusion between [FREECREDITREPORT.COM and CREDITREPORTS.COM (Docket No. 6, Counterclaim at p. 21, ¶ 21) ConsumerInfo falsely stated to the FREECREDITREPORT.COM mark coexists without confusion with other marks containing the phrase CREDIT REPORT. . at page 7, lines 2-3.) At the invitation of the Trademark Examiner, ConsumerInfo submitted an application on the grounds of likelihood of confusion between the FREECREDITREPORT.COM mark and the pre-existing registration of the mark CREDITREPORTS.COM. (ConsumerInfo SJ Motion at p 13). In responding to denial of registration on that basis, ConsumerInfo submitted arguments to the PTO as to why FREECREDITREPORT.COM would not create a allegations to the contrary in their Counterclaim, Defendants have proferred no evidence because there is none that there was in fact a likelihood of confusion Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 9 of 17 7 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 between FREECREDITREPORT.COM and CREDITREPORTS.COM, much less evidence that ConsumerInfo made a knowingly false statement that there was no likelihood of confusion. defense rooted in this theory also fails. 3. Def . allegations, in their counterclaim, also are strikingly idfferent from their new allegations in their opposition brief concerning statements to the PTO regarding acquired distinctiveness. Indeed, Defendants seem to now suggest that ConsumerInfo made a fraudulent representation of fact as to acquired distinctiveness because as a legal matter a deceptive mark cannot acquire distinctiveness: Counterclaim Opposition Brief unsupported claims regarding the its mark. (Docket No. 6, Counterclaim at p. 22, ¶ 24). ConsumerInfo falsely stated to the FREECREDITREPORT.COM mark is distinctive and therefore not misdescriptive services. . at p. 7, lines 3-5.) Apparently attempting to abandon their Counterclaim allegation that ConsumerIn regardless of whether the statements that ConsumerInfo made concerning acquired distinctiveness of FREECREDITREPORT.COM were entirely truthful, the statements were nonetheless necessarily fraudulent, because the Mark could never, as a legal matter, acquire distinctiveness. Hence, according to Defendants, g and Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 10 of 17 8 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 marketing of goods under the Mark, sales and revenues, and consumer recognition, were all fraudulent. Again, Defendants cite no case authority for this proposition. Moreover, while Defendants again suggest that ConsumerInfo committed fraud by not informing the PTO of the FTC allegations and various consumer Far Out Productions (Motion at pp. 14-15) which establishes that ConsumerInfo had no duty to inform the PTO about the FTC Action, nor of the BBB consumer complaints. 4. Defenda Fraud Theory Alleging Misdescriptiveness Fails As Well. Defendants also re-write their fourth fraud theory: Counterclaim Opposition Brief ConsumerInfo did not tell the PTO that its because, if consumers who signed up at the freecreditreport.com website did not cancel their 30 day trial membership in within the trial period, they would be charged a membership fee for that product. (Docket No. 6, Counterclaim, pp. 22-23, ¶¶ 25-26.) ConsumerInfo falsely stated to the term FREE accurately describes that consumers will receive a product or service at no cost. . at p. 7, lines 5-7.) Regardless of which of the above alleged fraudulent statements Defendants now wish to rely upon, Defendants have proffered no evidence sufficient to raise a genuine issue as to the fundamental fact: that consumers who sign up at the freecreditreport.com website are enrolled in a free trial membership in the credit monitoring program, and if they cancel before expiration of the trial period, they still keep their credit report and credit score free of charge. (Motion at pp. 3, 14). Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 11 of 17 9 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 Hence, Defendants cannot meet the first required element of a fraud claim -- that the statement made was false. Defendants assert question as to whether credit reports were provided for free. ( Opp. at p. 12, lines 12-15.) Yet, in the very next paragraph, Defendants concede that ConsumerInfo did answer the question, informing the Examiner that the initial credit report was provided for free. (Id. at lines 15-20.) That consumers also were signed up for a cancellable trial membership in credit monitoring does not render deceptively misdescriptive or deceptive. And, the fact that Defendants dispute that consumers get a free credit report with no admissible evidence to support this claim does not raise a triable reliance on inadmissible hearsay from consumer complaints save their theory.2 B. Reliance Do Not Save Their Fraud Claim. -party use of names, stantially similar to FREECREDITREPORT.COM. (Opp. at page 13) As discussed above, the only relevant question is whether a trademark owner believes that a third party user of a mark has superior rights to its 2 Defendants alleged in their Counterclaim but not in their Opposition that ConsumerInfo committed fraud by not referencing in in its trademark application papers that the FTC had filed a lawsuit in 2005 against ConsumerInfo (Counterclaim ¶ 28). Defendants apparently now have abandoned this fraud theory, notwithstanding that they still expend several pages discussing the FTC action, perhaps because Defendants now recognize that ConsumerInfo had no duty to include reference to the FTC action in its trademark application. (See ConsumerInfo Motion at pp. 14-16.) Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 12 of 17 10 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 mark. Defendants have raised no triable issue regarding knowledge, intent or reliance. Defendants also argue that ConsumerInfo was aware of consumer confusion between FREECREDITREPORT.COM and CREDITREPORTS.COM, however Defendants submit not a scintilla of evidence of any such confusion.3 Defendants further claim that ConsumerInfo was aware of purported confusion between its FREECREDITREPORT.COM mark and the ANNUALCREDITREPORTS.COM fail to address the fact that the FTC Action was settled, with no admission of liability, and ConsumerInfo had no duty to inform the PTO about this unrelated lawsuit. C. Defendants Have Raised No Genuine Issue of Material Fact With Respect to Their Lack of Damage. Recognizing that damage is a necessary element to a fraud on the PTO claim, Defendants attempt to rescue their fraud claim by resorting to the speculative, conclusory, inadmissible, unsupported testimony of Defendant Willms that the -launched their credit- at page 17). Defendants proffer no admissible evidence to support this claim, and their claim for damages based on fraud on the PTO claim fails for this reason also. Moreover, while Defendants attempt to distinguish the cases cited by ConsumerInfo which stand for the proposition that a defendant cannot pursue damages under a fraud on PTO theory if the defendant was not engaged in the business at the time of the alleged fraud, they cite no authority for the novel 3 Defendants allege that ConsumerInfo was purportedly aware of confusion between FREECREDITREPORT.COM and CREDITREPORT.COM; Defendants apparently themselves have confused CREDITREPORTS.COM with CREDITREPORT.COM Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 13 of 17 11 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 proposition that they have standing to pursue a damages claim when they were not even engaged in the credit-related business either when ConsumerInfo made its trademark application or when the registration issued. D. . 1. ds Defense Fails as a Matter of Law As to Defendants that ConsumerInfo allegedly misused its mark in commerce to assert this basis in their pleadings, and because the alleged misconduct does not affect the equities of the parti -hour positing of this new theory. Defendants indeed did not disclose this theory until January 27, 2010, after discovery was closed in the case, and only in connection with their counterclaim, not their unclean hands defense. (2/26/10 Maya Decl. in Supp. of Reply, ¶ 4.) legations against Defendants, nor does it affect the equities between the parties in this lawsuit. Instead, Defendants seek to proffer evidence with respect to purported acts concerning persons who are not even parties to this lawsuit. None of Defendants unclean hands theory. For example, in PerfumeBay.com, Inc. v. EBay, Inc., the unclean hands defense was based on an allegation that eBay was engaged in PerfumeBay.com, Inc. v. EBay, Inc., 506 F.3d 1165, 1177-78 (9th Cir. 2007). Hence, the alleged unclean hands conduct affected the equities between the parties in the lawsuit. Likewise, in Levi Strauss, the court rejected an unclean hands defense asserted by a defendant that was based Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 14 of 17 12 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 on the allegation that he was entrapped by the plaintiff into selling the counterfeit Levi Strauss & Co. v. Shilon, 121 F.3d 1309, 1313 (9th Cir. 1997). Though the Levi Strauss court did allow the unclean hands defense to survive to a bench trial, the unclean hands defense asserted affected the equities between the parties. Finally, in Emco, Inc. v. Obst, the court found the unclean hands defense applicable to a false advertising claim where the counterclaimant engaged in false advertising in terms of geographic origin of its products, and had alleged in his counterclaim that the counterdefendant had engaged in false advertising as to geographic origin of its products. Emco, Inc. v. Obst, 2004 WL 1737355 at * 5 (C.D. Cal. May 7, 2004). Hence, the Emco court found that the unclean hands alleged related to the subject matter of the claims made by the counterclaimant. Here, by contrast, there is no claim by the Defendants that ConsumerInfo falsely advertised that it was providing credit reports, credit scores or credit monitoring. npermitted unclean hands theory, their defense fails. 2. Defendant Failure to Mitigate Apparently recognizing that their counterclaim and unclean hands defense both fail as a matter of law, and desperate to preserve their ability to introduce to now concoct a novel theory of mitigation: that ConsumerInfo should never have adopted its FREECREDITREPORT.COM mark, in which case Defendants never would have infringed the mark. Defendants have no support for this novel theory, that taken to its logical conclusion would mean that any plaintiff attempting to enforce its rights fails to mitigate its damages by enforcing its rights. Defendants affirmative defense of failure to mitigate cannot survive as a matter of law. Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 15 of 17 13 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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. Defendants Cannot Create a Triable Issue of Fact on Superseding Events and Acts of Third Parties. Apparently misunderstanding that Defendants bear the burden of proof on their affirmative defenses, Defendants flatly assert that these affirmative defenses apply -secondary liability claims. Yet, Defendants do not even articulate the basis of purported application of the defenses, much less proffer evidence to support the defenses. These defenses should be dismissed. 4. The In Pari Delicto and Allocation of Fault Defenses Fail. Defendants entirely misconstrue these defenses, which are applicable where the plaintiff and the defendant are jointly involved in some wrongful action where each is at least equally at fault. See Weitzman v. Stein, 436 F. Supp. 895, 904-05 (D.C.N.Y. 1977) (in pari delicto bars . Defendants do not articulate a cogent basis for application of these defenses in this case because there is none and the defenses therefore should be dismissed. 5. Waiver, Estoppel, Abandonment, and Fair Use Defenses also Fail. that there purportedly were third action and otherwise, is enforcing its rights to FREECREDITREPORT.COM, not argument, nor do they even claim that they assumed the mark defenses, therefore, also fail. Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 16 of 17 14 23283682.DOCX CONSUMERINFO REPLY IN SUPPORT OF MOTION FOR PARTIAL SUMMARY JUDGMENT 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 III. Conclusion For the reasons set forth above, as well as those in its moving papers, ConsumerInfo respectfully requests the Court enter an order granting ConsumerInfo s motion for partial summary judgment in its entirety. DATED: February 26, 2010 Respectfully Submitted, KAYE SCHOLER LLP By: Theodore W. Maya Attorneys for Plaintiff and Counter- Defendant CONSUMERINFO.COM, INC. Case 8:09-cv-00055-DMG-MLG Document 125 Filed 02/26/10 Page 17 of 17