Pho Real Answer

Case 1:23-cv-02059-SEB-KMB Document 13 Filed 01/12/24 Page 1 of 8 PageID #: 60
UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF INDIANA
SHOICHI MATSUMOTO, )
)
Plaintiff, )
)
v. ) CASE NO. 1:23-cv-2059
)
PHO REAL LLC, )
)
Defendant. )
DEFENDANT S ANSWER TO PLAINTIFF S

COMPLAINT FOR COPYRIGHT INFRINGEMENT
Pho Real, LLC, by counsel, A P C
C I ( C ) :
SUMMARY OF THE ACTION
1. P SHOICHI MATS MOTO ( M )
C A , 17 .S.C. 106, M
original copyrighted Work of authorship.
ANSWER: D P 1 P C .
2. Matsumoto is a private chef, TV host, food consultant and photographer, who
prepares food, styles the food and takes stunning images of the food he has created and styled. He
uses Sony DSLR, Sony A100, Sony A550 and Sony A77 (mated to a Carl Zeiss 24-70 f.28 lens)
cameras to capture his work. Matsumoto licenses his photos for both commercial and non-
commercial uses.
ANSWER: Defendant is without sufficient information to admit or deny the allegations
of Paragraph 2 and leaves Plaintiff to its proof.
Page 1 of 8
3. D , PHO REAL LLC ( P R ) I ,
IN, serving Thai, Vietnamese and Lao cuisine. It offers dine-in, take-out and delivery services.
At all times relevant herein, Pho Real owned and operated the internet website located at the URL
https://phorealindy.com/ ( ).
ANSWER: Defendant admits that it is a restaurant located in Indianapolis, IN serving
Thai, Vietnamese, and Lao cuisine. Defendant admits that it offers dine in, take-out and delivery
services. Defendant admits that it owns the internet website located at the URL
https://phorealindy.com/ ( ). D .
4. M P R M
internet in order to advertise, market and promote its business activities. Pho Real committed the
P R dvertising and
P R .
ANSWER: D P 4 P C .
JURISDICTION AND VENUE
5. This is an action arising under the Copyright Act, 17 U.S.C. § 501.
ANSWER: D P 5 P C .
6. This Court has subject matter jurisdiction over these claims pursuant to 28 U.S.C.
§§ 1331, 1338(a).
ANSWER: D P 6 P C .
7. Defendant is subject to personal jurisdiction in Indiana.
ANSWER: D P 7 P C .
8. Venue is proper in this district under 28 U.S.C. § 1391(b) and (c) and 1400(a)
because the events giving rise to the claims occurred in this district, Defendant engaged in
Page 2 of 8
infringement in this district, Defendant resides in this district, and Defendant is subject to personal
jurisdiction in this district.
ANSWER: D P 8 P C .
DEFENDANT
9. Pho Real LLC is an Indiana limited liability company, organized and existing under
the laws of the State of Indiana. Pho Real has its Principal Office at 9611 N College Ave, Carmel,
IN 46280 and can be served by serving its Registered Agent/President, Aet Saengkeo Ely, at 12257
Cobblestone Drive, Fishers, IN 46037 or whenever he may be found.
ANSWER: D P 9 P C .
THE COPYRIGHTED WORK AT ISSUE
10. I 2013, M -4 ,
11. Matsumoto registered the Work with the Register of Copyrights on April 3, 2024
and was assigned the registration number VA 1-908-799. The Certificate of Registration is
attached hereto as Exhibit 1.
of Paragraph 11 and leaves Plaintiff to its proof but admits that a Certificate of Registration is
attached as Exhibit 1. However, Defendant asserts that Exhibit 1 speaks for itself and Defendant
neither admits nor denies the material allegations relating to Exhibit 1, nor answer as to its
authenticity, completeness, or legal meaning.
Page 3 of 8
12. M ,
proprietary, or trade secrets. The Work in perspective, orientation, positioning, lighting and other
details is entirely original, distinctive, and unique. As such, the Work qualifies as subject matter
protectable under the Copyright Act.
13. M confidential,
proprietary, or trade secrets.
of Paragraph 13 whether it is protected by copyright but admits that it is not confidential,
proprietary, or a trade secret.
14. At all relevant times Matsumoto was the owner of the copyrighted Work at issue in
this case.
INFRINGEMENT BY DEFENDANT
15. Pho Real has never been licensed to use the Work at issue in this action for any
purpose.
ANSWER: D P 15 P C .
16. On a date after the Work at issue in this action was created, but prior to the filing
of this action, Pho Real copied the Work.
Page 4 of 8
17. On or about November 17, 2020, Matsumoto discovered the unauthorized use of
his Work on the American online and mobile prepared food ordering and delivery platform non-
party Grubhub.Inc. A representative example of one of the images from the Grubhub.Inc. website
using the Work is shown in part here.
18. P R M M .
19. After Pho Real copied the Work, it made further copies and distributed the Work
on the internet to promote the sale of goods and services as part of its restaurant business.
Specifically, upon information and belief, Pho Real uploaded the Work to Gru I .
to market its goods and services.
20. P R M
P R P R ,
course and scope of advertising and selling products and services.
21. Pho Real committed copyright infringement of the Work as evidenced by the
documents attached hereto as Exhibit 2.
22. Matsumoto never gave Pho Real permission or authority to copy, distribute or
display the Work at issue in this case.
Page 5 of 8
23. Matsumoto notified Pho Real of the allegations set forth herein on November 15,
2022 M 7, 2023. T ,P R P N .
ANSWER: Defendant denies having actually received prior notice of the allegations set
forth in the Complaint.
COUNT I
COPYRIGHT INFRINGEMENT
24. Matsumoto incorporates the allegations of paragraphs 1through 23 of this
Complaint as if fully set forth herein.
ANSWER: Defendant restates, adopts, and asserts its answers contained in paragraphs
1 through 23 as if fully set forth herein.
25. Matsumoto owns a valid copyright in the Work at issue in this case.
26. Matsumoto registered the Work at issue in this case with the Register of Copyrights
pursuant to 17 U.S.C. § 411(a).
27. Pho Real copied, displayed, and distributed the Work at issue in this case and made
M 17 .S.C. 501.
28. Pho Real performed the acts alleged in the course and scope of its business
activities.
29. P R .
Page 6 of 8
30. Matsumoto has been damaged.
31. The harm caused to Matsumoto has been irreparable.
WHEREFORE, Defendant respectfully requests that Plaintiff take nothing by his
C , , ,
may be entitled.
AFFIRMATIVE DEFENSES
Defendant reserves the right to rely upon any of the following or additional defenses or
claims asserted by Defendant to the extent such defenses are supported by information developed
through discovery or evidence at trial. By asserting the following defenses, Defendant does not
allege or admit it has the burden of proof or the burden of persuasion with respect to any of these
matters:
1. P C , part, fails to state a claim upon which relief
can be granted.
2. P , , , ,
and/or omissions of parties or persons other than Defendant.
3. P , , P
own a valid and legally protectable copyright for the copyright at-issue in this litigation.
4. P , , P
the damages as alleged.
5. P , , D
P .
Page 7 of 8
6. Defendant acted in good faith at all times.
7. Defendant reserves the right to assert additional defenses that it may discover in the
course of this litigation.
WHEREFORE, Defendant respectfully requests that Plaintiff take nothing by his
C , , ,
may be entitled.
Respectfully submitted,
CARSON LLP
/s/ Robert L. Nicholson

Robert L. Nicholson #16153-02
301 W. Jefferson Blvd., Suite 200
Fort Wayne, IN 46802
PH: 260-423-9411
Fax: 260-423-4329
Attorney for Defendant, Pho Real LLC
CERTIFICATE OF SERVICE
I hereby certify that on the 12th day of January, 2024, a copy of the foregoing was filed
C C CM/ECF , :
Jay Campbell Miller

Email: Campbell.Miller@sriplaw.com
/s/ Robert L. Nicholson
Page 8 of 8

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Case 1:23-cv-02059-SEB-KMB Document 13 Filed 01/12/24 Page 1 of 8 PageID #: 60

UNITED STATES DISTRICT COURT

DEFENDANT S ANSWER TO PLAINTIFF S

Pho Real, LLC, by counsel, A P C

SUMMARY OF THE ACTION

1. P SHOICHI MATS MOTO ( M )

original copyrighted Work of authorship.

2. Matsumoto is a private chef, TV host, food consultant and photographer, who

ANSWER: Defendant is without sufficient information to admit or deny the allegations

of Paragraph 2 and leaves Plaintiff to its proof.

3. D , PHO REAL LLC ( P R ) I ,

ANSWER: Defendant admits that it is a restaurant located in Indianapolis, IN serving

JURISDICTION AND VENUE

5. This is an action arising under the Copyright Act, 17 U.S.C. § 501.

7. Defendant is subject to personal jurisdiction in Indiana.

jurisdiction in this district.

Cobblestone Drive, Fishers, IN 46037 or whenever he may be found.

THE COPYRIGHTED WORK AT ISSUE

ANSWER: Defendant is without sufficient information to admit or deny the allegations

of Paragraph 10 and leaves Plaintiff to its proof.

attached hereto as Exhibit 1.

ANSWER: Defendant is without sufficient information to admit or deny the allegations

authenticity, completeness, or legal meaning.

protectable under the Copyright Act.

ANSWER: Defendant is without sufficient information to admit or deny the allegations

of Paragraph 12 and leaves Plaintiff to its proof.

proprietary, or trade secrets.

ANSWER: Defendant is without sufficient information to admit or deny the allegations

of Paragraph 13 whether it is protected by copyright but admits that it is not confidential,

proprietary, or a trade secret.

ANSWER: Defendant is without sufficient information to admit or deny the allegations

of Paragraph 14 and leaves Plaintiff to its proof.

of this action, Pho Real copied the Work.

using the Work is shown in part here.

ANSWER: Defendant is without sufficient information to admit or deny the allegations

of Paragraph 17 and leaves Plaintiff to its proof.

to market its goods and services.

course and scope of advertising and selling products and services.

documents attached hereto as Exhibit 2.

display the Work at issue in this case.

forth in the Complaint.

24. Matsumoto incorporates the allegations of paragraphs 1through 23 of this

Complaint as if fully set forth herein.

1 through 23 as if fully set forth herein.

ANSWER: Defendant is without sufficient information to admit or deny the allegations

of Paragraph 25 and leaves Plaintiff to its proof.

pursuant to 17 U.S.C. § 411(a).

30. Matsumoto has been damaged.

31. The harm caused to Matsumoto has been irreparable.

WHEREFORE, Defendant respectfully requests that Plaintiff take nothing by his

1. P C , part, fails to state a claim upon which relief

and/or omissions of parties or persons other than Defendant.

the damages as alleged.

6. Defendant acted in good faith at all times.

course of this litigation.

WHEREFORE, Defendant respectfully requests that Plaintiff take nothing by his

/s/ Robert L. Nicholson

Jay Campbell Miller

/s/ Robert L. Nicholson

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