Case 1:13-cv-03795-JBW-VVP Document 46 Filed 12/15/13 Page 1 of 14 PageID #: 2712 ‫ב”ה‬ UNITED STATES DISTRICT COURT EASTERN

DISTRICT OF NEW YORK EMECO INDUSTRIES, INC., Plaintiffs, -againstEAST END N.Y. IMPORTS, INC., et al., Defendants. AND RELATED COUNTERCLAIMS Case No. 1:13-cv-03795 (JBW-VVP)

DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF’S MOTION FOR DISMISSING COUNTERCLAIMS AND STRIKING AFFIRMATIVE DEFENSES FROM DEFENDANTS’ FIRST AMENDED COMPLAINT

Elie C. Poltorak (EP8791) elie@poltoraklaw.com POLTORAK PC 1650 Eastern Parkway, Suite 400 Brooklyn, NY 11233 Telephone: (718) 943-8815 Facsimile: (718) 943-8816 Attorneys for Defendants

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Case 1:13-cv-03795-JBW-VVP Document 46 Filed 12/15/13 Page 2 of 14 PageID #: 2713 ‫ב”ה‬ TABLE OF CONTENTS I. II. DEFENDANTS’ AFFIRMATIVE DEFENSES SHOULD BE SUSTAINED. ....................................................................................................1 THE NAVY CHAIR DESIGN REGISTRATION’S “INCONTESTABILITY” DOES NOT PRECLUDE A CHALLENGE FOR LACK OF SECONDARY MEANING. ...................................................3 PLAINTIFF’S “INCONTESTABLE” THE NAVY CHAIR MARK IS SUBJECT TO CHALLENGE FOR GENERICISM. ........................................5 DEFENDANTS’ FIRST AND SECOND PATENT COUNTERCLAIMS ARE PROPERLY PLED. ...............................................5 A. B. V. VI. Defendants’ Amended Answer dropped counterclaims for unenforceability due to inequitable conduct. .........................................5 Defendants’ Patent Counterclaims satisfy pleading requirements.........5

III. IV.

Defendants’ Trademark Counterclaims are properly pled. ................................8 ANY DISMISSAL SHOULD BE WITHOUT PREJUDICE AND DEFENDANTS SHOULD BE GRANTED LEAVE TO REPLEAD. .............9 CONCLUSION.....................................................................................................10

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TABLE OF AUTHORITIES CASES Anderson News, L.L.C. v. Am. Media, Inc., 2013 U.S. Dist. LEXIS 58469, at *12, 2013-1 Trade Cas. (CCH) P78, 349 (S.D.N.Y. 2013) ................................................................2 Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009) .............5 Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007) .. 5 Checkers Drive-In Rests. v. Tampa Checkmate Food Servs., 221 B.R. 541, 547 (Bankr. M.D. Fla. 1998) ........................................................................................................................3 Cnty. Vanlines Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 152–53 (S.D.N.Y. 2002). ........................................................................................................................................2 Elan Pharma Int’l Ltd. v. Lupin Ltd., No. CIV. A. 09-1008 (JAG), 2010 U.S. Dist. LEXIS 32306 (D.N.J. 2010) .......................................................................................................6 Franek v. Walmart Stores, Inc, 2009 U.S. Dist. LEXIS 20361, at *4 (N.D. Ill. Mar. 13, 2009), aff’d Jay Franco, 615 F.3d 855 ......................................................................................4 Goldman v. Belden, 754 F.2d 1059, 1070 (2d Cir. 1985)...................................................8 Jay Franco & Sons, Inc. v. Franek, 615 F.3d 855, 857 (7th Cir. 2010) .............................4 Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 703 F. Supp. 2d 671, 688, n.18 (W.D. Ky. 2010), aff’d, 679 F.3d 410 (6th Cir. 2012) ..............................................................4 Malaco Leaf, AB v. Promotion in Motion, Inc., 287 F. Supp. 2d 355, 363-64 (S.D.N.Y. 2003) ........................................................................................................................................4 Microsoft Corp. v. Phoenix Sol’ns, Inc., 741 F. Supp. 2d 1156, 1159 (C.D. Cal. 2010) ...6 Orientview Techs. LLC v. Seven for All Mankind, LLC, 2013 U.S. Dist. LEXIS 111107, at *9– 10 (S.D.N.Y. Aug. 7, 2013 .........................................................................................2, 6 Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 196, 105 S. Ct. 658, 663 (1985) 3 Pfizer Inc. v. Apotex Inc., 726 F. Supp. 2d 921, 937-38 (N.D. Ill. 2010) ...........................6 R+L Carriers, Inc. v. DriverTech LLC, 681 F.3d 1323, 1334 (Fed. Cir. 2012) .................5 Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984) .................................1 Spiteri v. Russo, 2013 U.S. Dist. LEXIS 128379 (E.D.N.Y. Sept. 7, 2013) ......................1 Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 2009 WL 2922851,

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at *4-*5 (E.D.N.Y. 2009) ...............................................................................................8 Stern v. Gen. Elec. Co., 924 F.2d 472, 477 (2d Cir. 1991) .................................................9 Sunrise Jewelry Mfg. Corp. v. Fred S.A., 175 F.3d 1322, 1326 (Fed. Cir. 1999) ..........4, 5 Teirstein v. AGA Med. Corp., No. 6:08CV14, 2009 U.S. Dist. LEXIS 125002, at *11, at *4-6 (E.D. Tex. 2009) .............................................................................................................6 Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 216, 120 S. Ct. 1339, 1346 (2000) ........................................................................................................................................3 Wausau Bus. Ins. Co. v. Horizon Admin. Servs. LLC, 803 F. Supp. 2d 209, 213 (E.D.N.Y. 2011) ...............................................................................................................................2 STATUTES 15 USCS § 1115(b)(1) ........................................................................................................4 RULES Fed. Rules Civ. Proc. R. 9(b) ..............................................................................................8

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Case 1:13-cv-03795-JBW-VVP Document 46 Filed 12/15/13 Page 5 of 14 PageID #: 2716 ‫ב”ה‬ Defendants East End N.Y. Imports d/b/a Modway and Modway Furniture and Sugar Stores, Inc. d/b/a Lexmod, Atlantic Furniture Store, Mid Century Furniture, Safco Shop, Bestrar Furniture Store Shop Seating and Menachem T. Greisman, Moshe Melamed, and Schneur Hirsch respectfully submit this Memorandum of Law in opposition to Plaintiff’s motion for dismissing counterclaims and striking the First, Second, Fifth, Seventh, Eighth, and Fourteenth Affirmative Defenses from Defendants’ First Amended Complaint. Given that there are no questions of fact relevant to this motion, Defendants will not burden the Court with quibbling over Plaintiff’s Statement of Facts or recitation of the procedural history of this action, none of which is relevant hereto. Defendants believe that their original Answer would have withstood Plaintiff’s previous motion. Nevertheless, Defendants chose to amend their Answer so as to focus on the issues likely to determine this lawsuit’s outcome and avoid needless litigation over minor issues unlikely to play a major role herein. Defendants reserve the right to seek to further amend their pleadings to reassert any such defenses and/or counterclaims, should they discover additional facts relevant thereto. I. DEFENDANTS’ AFFIRMATIVE DEFENSES SHOULD BE SUSTAINED. Motions to strike affirmative defenses pursuant to Rule 12(f) are disfavored. Spiteri v. Russo, 2013 U.S. Dist. LEXIS 128379, at *240–41, n. 62 (E.D.N.Y. Sept. 7, 2013) 1 Such motions are granted “only if there is a strong reason to do so” and “it is clear that the allegations in question can have no possible bearing on the subject matter of the litigation.” Id.; see also Salcer v. Envicon Equities Corp., 744 F.2d 935, 939 (2d Cir. 1984) (Such motions are “not favored and will not be granted unless it appears to a certainty that plaintiffs would succeed despite any state of the facts which could be proved in support of the defense.”). Additionally, the plaintiff must demonstrate prejudice if the defense were

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Unless otherwise noted, all internal quotations and citations are omitted, and all emphases are added.

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allowed to stand. Wausau Bus. Ins. Co. v. Horizon Admin. Servs. LLC, 803 F. Supp. 2d 209, 213 (E.D.N.Y. 2011); see also Anderson News, L.L.C. v. Am. Media, Inc., 2013 U.S. Dist. LEXIS 58469, at *12, 2013-1 Trade Cas. (CCH) P78, 349 (S.D.N.Y. 2013) (To succeed on a Rule 12(f) motion, the movant must show that “(1) no evidence in support of the allegations would be admissible; (2) that the allegations have no bearing on the issues in the case; and (3) that to permit the allegations to stand would result in prejudice to the movant”). “Furthermore, courts have recognized the inherent imprecision involved in the assertion of affirmative defenses, such that the cautious pleader is fully justified in setting up as affirmative defenses anything that might possibly fall into that category, even though that approach may lead to pleading matters as affirmative defenses that could have been set forth in simple denials” Orientview Techs. LLC v. Seven for All Mankind, LLC, 2013 U.S. Dist. LEXIS 111107, at *9–10 (S.D.N.Y. Aug. 7, 2013). “[A] motion to strike is not intended to furnish an opportunity for the determination of disputed and substantial questions of law.” Cnty. Vanlines Inc. v. Experian Info. Solutions, Inc., 205 F.R.D. 148, 152–53 (S.D.N.Y. 2002). “[A] motion to strike is not intended to furnish an opportunity for the determination of disputed and substantial questions of law.” Id. “[I]t is particularly important to refrain from considering disputed questions of law when … there has been no significant discovery.” Id. Here, Plaintiff asks the Court to effectively predetermine the outcome of this lawsuit by resolving the key legal issues in dispute in the context of a motion to strike affirmative defenses before Defendants have had the opportunity to take any discovery whatsoever. The Court should not countenance Plaintiff’s end run, and its motion to strike should be denied in all respects.

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II. THE NAVY CHAIR DESIGN REGISTRATION’S “INCONTESTABILITY” DOES NOT PRECLUDE A CHALLENGE FOR LACK OF SECONDARY MEANING. The key issue in the case at bar is whether Defendants are precluded from challenging Plaintiff’s Navy Chair Trade Dress as lacking secondary meaning due to its “incontestable” status. Citing Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 196, 105 S. Ct. 658, 663 (1985), Plaintiff asserts that its “incontestable” trademarks’ distinctiveness cannot be challenged. Plaintiff then posits the circular argument that “[b]ecause distinctiveness of a product’s design as trade dress can only be based on secondary meaning or “acquired distinctiveness” (Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 216, 120 S. Ct. 1339, 1346 (2000)[)], incontestability of Emeco’s Navy Chair® Trade Dress is conclusive proof it has secondary meaning.” (Pl. Mem. at 12) Plaintiff’s argument fails on several grounds. Firstly, it is highly doubtful whether the Park ‘N Fly holding is still good law, in light of the subsequent amendment to the portion of the Lanham Act, 15 U.S.C. § 1115(b), interpreted thereby. At the time that Park ‘N Fly was decided, the prefatory language to the list of defenses contained in Section 1115(b) stated: “If the right to use the registered mark has become incontestable…, the registration shall be conclusive evidence of the registrant’s exclusive right to use the registered mark … except when one of the following defenses or defects is established.” 15 U.S.C. § 1115(b). (Emphasis supplied). The statute was amended in 1988, however, after the Supreme Court decided Park ‘N Fly, and the prefatory language now states: “Such conclusive evidence of the right to use the registered mark shall be subject to proof of infringement as defined in section 1114 of this title, and shall be subject to the following defenses or defects.” 15 U.S.C. § 1115(b) (Trademark Law Revision Act of 1988) (Emphasis supplied). The former statute deems the registration conclusive evidence “except” when “one” of the defenses applies. The revision provides that the conclusive is “subject to” the listed defenses.” Checkers Drive-In Rests. v. Tampa Checkmate Food Servs., 221 B.R. 541, 547 (Bankr. M.D. Fla. 1998). Secondly, even if arguendo Park ‘N Fly is still good law, it is inapplicable to product design marks, particularly in light of the Wal-Mart holding. Essentially, Park ‘N Fly held that an “incontestable” trademark cannot be challenged as merely descriptive. However, Wal-Mart 3

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eliminated the distinctive/descriptive distinction altogether as applied to product designs. In light of Wal-Mart, a product design must possess secondary meaning to be protectable. Thus, a product design lacking secondary meaning is equivalent to a generic trademark, which is not protected by “incontestability” (Sunrise Jewelry Mfg. Corp. v. Fred S.A., 175 F.3d 1322, 1326 (Fed. Cir. 1999); see also Park ‘n Fly, 469 U.S. at 201). Ergo, “incontestability” does not protect against challenge for lack of secondary meaning. See, e.g., Malaco Leaf, AB v. Promotion in Motion, Inc., 287 F. Supp. 2d 355, 363-64 (S.D.N.Y. 2003) (holding an incontestable product design registration “unprotectable,” due to lack of secondary meaning). Plaintiff cites two cases, Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., 703 F. Supp. 2d 671, 688, n.18 (W.D. Ky. 2010), aff’d, 679 F.3d 410 (6th Cir. 2012) and Jay Franco & Sons, Inc. v. Franek, 615 F.3d 855, 857 (7th Cir. 2010), as examples (“ see, e.g.,” ) of cases supporting its erroneous assertion. (Pl. Mem. at 12, 15) Of them, Maker’ s Mark is entirely inapposite, as it does not address product design trade dress. Jay Franco is a case in which the party contesting the registration’ s argument was “ limited to the alleged functionality of [the] trademark” (Franek v. Walmart Stores, Inc., 2009 U.S. Dist. LEXIS 20361, at *4 (N.D. Ill. Mar. 13, 2009), aff’d Jay Franco, 615 F.3d 855) and the issue of secondary meaning was not raised at all. The district court held the product design at issue to be functional and the Seventh Circuit affirmed. Thus, the “holding” cited by Plaintiff (Pl. Mem. at 12) is no holding at all. Rather, it is dicta recapitulating the Park ‘N Fly holding (to which it expressly cites) and cannot be applied to the product design context. Plaintiff cannot cite a single case holding that incontestable product design registrations cannot be challenged for lack of secondary meaning. Finally, even if arguendo Defendants were precluded from raising the present lack of secondary meaning as a defense against the “incontestable” marks, Defendants could nevertheless

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defend against such marks by asserting fraudulent registration (15 U.S.C.S. § 1115(b)(1)), in that Plaintiff falsely represented to the Patent and Trademark Office that the marks possessed secondary meaning at the time of registration. III. PLAINTIFF’S “INCONTESTABLE” THE NAVY CHAIR MARK IS SUBJECT TO CHALLENGE FOR GENERICISM. As previously stated, “incontestable” status does not prevent a challenge on grounds of genericism. Sunrise Jewelry Mfg. Corp. v. Fred S.A., 175 F.3d 1322, 1326 (Fed. Cir. 1999); see also Park ‘n Fly, 469 U.S. at 201. Accordingly, Defendants’ affirmative defenses and counterclaims related to the THE NAVY CHAIR mark’s genericism must be sustained. IV. DEFENDANTS’ FIRST AND SECOND PATENT COUNTERCLAIMS ARE PROPERLY PLED. A. Defendants’ Amended Answer dropped counterclaims for unenforceability due to inequitable conduct. Plaintiff continues to argue that Defendants’ counterclaims should be dismissed for lack of specificity in asserting inequitable conduct; however, no allegations of inequitable conduct appear in the Amended Answer. B. Defendants’ Patent Counterclaims satisfy pleading requirements. Plaintiff asserts that Defendants’ patent counterclaims do not meet the pleading requirements of Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009), and Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S. Ct. 1955, 167 L. Ed. 2d 929 (2007). As a preliminary matter, claims for direct infringement of patents are subject to the more relaxed pleading standards contained in Form 18 of the Appendix of Forms to the Federal Rules of Civil Procedure, which only requires a bare statement that defendant has been infringing the patent. R+L Carriers, Inc. v. DriverTech LLC, 681 F.3d 1323, 1334 (Fed. Cir. 2012). Counterclaims for noninfringement are similarly governed by the relaxed Form 18 standard. Orientview Techs., 2013 U.S.

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Dist. LEXIS 111107, at *14, n. 4. Accordingly, so much of Defendants’ counterclaims as seeks a declaration of non-infringement must be sustained as conforming with Form 18. With respect to the invalidity counterclaim, “[c]ourts have split both as to whether [it] must meet Twombly and Iqbal’s heightened pleading standard, and, if it must, whether such a counterclaim survives if it does no more than simply assert the invalidity of the patent in question with no factual elaboration.” Orientview Techs., 2013 U.S. Dist. LEXIS 111107, at *15; see generally, Id. at 14-21. Generally, courts sitting in jurisdictions with local patent rules requiring service of invalidity contentions, have not held invalidity counterclaims to Twombly/Iqbal pleading standards. See, e.g., Microsoft Corp. v. Phoenix Sol’ns, Inc., 741 F. Supp. 2d 1156, 1159 (C.D. Cal. 2010) (“[B]ecause the Court requires that invalidity contentions be served promptly after a counterclaim of invalidity is advanced, invalidity claims are not subject to the heightened pleading standards of Twombly and Iqbal.”); Pfizer Inc. v. Apotex Inc., 726 F. Supp. 2d 921, 937-38 (N.D. Ill. 2010) (holding that an invalidity counterclaim stating that the disputed patents were “invalid for failure to comply with one or more of the conditions of patentability set forth in Title 35 of the United States Code” sufficient as its dismissal would “undermine the local patent rules, which requires more detailed disclosure at a later stage”); Elan Pharma Int’l Ltd. v. Lupin Ltd., No. CIV. A. 09-1008 (JAG), 2010 U.S. Dist. LEXIS 32306 (D.N.J. 2010); Teirstein v. AGA Med. Corp., No. 6:08CV14, 2009 U.S. Dist. LEXIS 125002, at *11, at *4-6 (E.D. Tex. 2009). Similarly, several courts that have held invalidity counterclaims to heightened pleading standards “have noted the fact that, in contrast, no local patent rules were in place in those districts.” Orientview Techs., 2013 U.S. Dist. LEXIS 111107, at *19. Plaintiff relies extensively on Orientview—the only reported decision in the Second Circuit to address the question—to support its contention that the existence of patent rules cannot supersede the heightened pleading requirement of Iqbal/Twombly. Indeed, this is an unsettled area of law and it

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remains to be seen how the courts will resolve the considerable tension between the local patent rules and heightened pleading requirements. However, none of this is relevant to the case at bar. In Orientview, the counterclaim consisted of a bare conclusion that the patent in question is “invalid or failure to comply with one or more of the requirements of” the relevant statutes. Id. at 12. Such barebones counterclaims nearly universal in patent suits prior to Iqbal/Twombly. All or virtually all of the cases to have considered the adequacy of such counterclaims, including the cases relied upon by Plaintiff and the cases cited in Orientview, concern such conclusory pleading. By contrast, Defendants’ counterclaim contains specific factual allegations as to the grounds for the patent-in-suit’s invalidity: Defendants allege that the designs claimed by Plaintiff’s patents are “functional,” “anticipated by the prior art,” “not novel,” and “would have been obvious to a person having ordinary skill in the art.” (Amended Answer ¶¶ 296-98, 304-06) Such allegations are more than adequate under any pleading standard, as they “state a claim for relief that is plausible on its face” (Iqbal, 556 U.S. at 678) and give Plaintiff notice of the specific grounds on which Defendants seek to invalidate the patents-in-suit. Plaintiff cannot cite a single to case to have so much as considered the adequacy of such a pleading. Nor can Plaintiff cite any authority whatsoever to suggest that an invalidity counterclaim must contain detailed recitations of the specific prior art at issue. Any such requirement would be at war with the local patent rules, which call for such disclosures at a later time after allowing for discovery. Furthermore, any such requirement would either eliminate the opportunity to challenge the validity of an asserted patent, as no defendant could complete a review of the prior art in the time allotted for a responsive pleading, or needlessly delay resolution of patent suits, as defendants sought to interpose counterclaims in late stages of litigation.

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Accordingly, Plaintiff’s motion to dismiss Defendants’ patent counterclaims for lack of notice is frivolous and must be denied. V. DEFENDANTS’ TRADEMARK COUNTERCLAIMS ARE PROPERLY PLED. Contrary to Plaintiff’s assertions, Defendants’ counterclaims for cancellation of Plaintiff’s trademark registrations are well-pled, with the requisite specificity. Defendants allege that specific representation submitted by Plaintiff to the patent office were “false, misleading, and/or fraudulent.” (Amended Answer at ¶¶ 315-16, 325-26) Defendants identify the basis for characterizing the representations as false, by alleging that the marks in question are generic and lack secondary meaning/acquired distinctiveness. (Amended Answer ¶¶ 313-14, 323-24) Generic trademarks and product designs lacking secondary meaning cannot be registered; hence, absent Plaintiff’s fraudulent misrepresentations, the Patent Office would not have registered the marks. Further, with respect to the Navy Trade Dress, Defendant further alleges that such fraudulent representation was made in a “Request for Reconsideration.” (Amended Answer ¶ 315) As to the element of scienter, “intent, knowledge, and other condition of mind of a person may be averred generally.” Goldman v. Belden, 754 F.2d 1059, 1070 (2d Cir. 1985) (emphasis in original) citing Fed. Rules Civ. Proc. R. 9(b). Defendants aver that the representations were “fraudulent.” (Amended Answer ¶¶ 316, 326) Furthermore, Plaintiff can be assumed to have known whether the marks it sought to register had in fact attained secondary meaning. Defendants cannot be expected to plead Plaintiff’s state of mind in greater detail without the benefit of discovery. Finally, in the unlikely event the Court were to dismiss so much of the counterclaims as sound in fraud, the remainder of the counterclaims, asserting genericity/lack of acquired distinctiveness and functionality must be sustained. Citing Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., 2009 WL 2922851, at *4-*5 (E.D.N.Y. 2009), Plaintiff asserts that “Defendants’ mere isolated recitation of 8

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these theories in their Answer and Counterclaims, bereft of any substantiating explanation of why they constitute plausible bases for invalidation or cancellation, render them unsustainable.” (Pl. Mem. at 12) Plaintiff is wrong. Firstly, Star Mark does not remotely support Plaintiff’s position. Plaintiff’s characterization of Star Mark’s holding as “claim for cancellation of trademark dismissed for absence of adequate support in pleading” is wildly inaccurate. Rather, the Star Mark claims were dismissed (and Rule 11 sanctions awarded) for a host of reasons, including claim preclusion, issue preclusion, time-barred claims, lack of standing, and a finding that the plaintiff’s allegations of abandonment and material alteration were frivolous on their face. Secondly, claims of functionality, genericity, and lack of acquired distinctiveness turn on complex, mixed questions of fact and law. The place for such argument is in summary judgment briefing and trial testimony—not a pleading. Plaintiff cannot point to a single case requiring a pleading to go beyond the allegations set forth in Defendants’ Amended Answer. VI. ANY DISMISSAL SHOULD BE WITHOUT PREJUDICE AND DEFENDANTS SHOULD BE GRANTED LEAVE TO REPLEAD. In the unlikely event the Court dismisses any of Defendants’ Counterclaims and/or Affirmative Defenses, Defendants should be granted leave to replead. “[D]ismissals for insufficient pleadings are ordinarily with leave to replead.” Stern v. Gen. Elec. Co., 924 F.2d 472, 477 (2d Cir. 1991). Plaintiff’s assertion that Defendants’ amendment to its first pleading demonstrates the futility of leave to replead is meritless, as Defendants’ first amendment primarily sought to discontinue some of its affirmative defenses. In the unlikely event that the Court finds that any of Defendants’ affirmative defenses and/or counterclaims are inadequately pled as a matter of law, Defendants should be given an opportunity to replead in a manner comporting with the Court’s ruling. Furthermore, any

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dismissal should be without prejudice to Defendants’ seeking to amend their pleadings in light of subsequently discovered evidence. CONCLUSION For the reasons set forth above, Defendants East End N.Y. Imports d/b/a Modway and Modway Furniture and Sugar Stores, Inc. d/b/a Lexmod, Atlantic Furniture Store, Mid Century Furniture, Safco Shop, Bestrar Furniture Store Shop Seating and Menachem T. Greisman, Moshe Melamed, and Schneur Hirsch respectfully request that Plaintiff’s motion be denied in all respects and such other and further relief as the Court may deem good and proper. Dated: Brooklyn, New York December 15, 2013 Respectfully submitted, POLTORAK PC

By: Elie C. Poltorak (EP8791) elie@poltoraklaw.com Attorneys for Defendants

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