Case: 4:13-cv-02391-SNLJ Doc.

#: 13 Filed: 04/22/14 Page: 1 of 7 PageID #: 236

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MISSOURI EASTERN DIVISION THE PRECINCT, INC. an Ohio Corporation, Plaintiff, vs. MWS, LLC, a Missouri Limited Liability Co., Defendant. JURY TRIAL DEMANDED ANSWER COMES NOW Defendant, MWS, LLC, by and through its attorney, John J. Pawloski of The Law Office of John J. Pawloski, LLC and states in support of its Answer to Plaintiff’s Complaint states as follows: 1. Upon information and belief, admitted. Cause No. 4:13-CV-02391

2. Upon information and belief, admitted.

3. Admitted. 4. Admitted as to Mark Winfield. Except as expressly admitted, denied. 5. Defendant admits that this Court has jurisdiction over the claims presented. Except as expressly admitted, the remaining items of paragraph 5 are denied. 6. Defendant admits that venue is proper before this Court. Except as expressly admitted, the remaining allegations of paragraph 6 are denied. 7. Defendant admits that Plaintiff has operated a fine dining establishment known as The Precinct in Cincinnati. Except as expressly admitted, the remainder of paragraph 7 is denied.

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Case: 4:13-cv-02391-SNLJ Doc. #: 13 Filed: 04/22/14 Page: 2 of 7 PageID #: 237

8. Defendant admits that Plaintiff displays police memorabilia and decor. Except as expressly admitted, the remaining allegations of paragraph 8 are denied. 9. Defendant is without personal knowledge of the allegations of paragraph 9 and denies same. 10. Defendant is without personal knowledge of the allegations of paragraph 10 and denies same. 11. Defendant is without personal knowledge of the allegations of paragraph 9 and denies same. 12. Defendant admits that Plaintiff has secured a federal trademark registration No. 4,318,443. Except as expressly admitted the remaining allegations of paragraph 12 are denied. 13. Paragraph 13 does not aver facts, but rather legal conclusions. To the extent that the allegations of paragraph 13 are construed to aver facts, they are denied. 14. Denied. 15. Denied. 16. Defendant admits that Plaintiff has been recognized as a fine dining restaurant and one of the top steakhouses in the country. Except as admitted, the remaining allegations of paragraph 16 are denied. 17. Admitted. 18. Defendant is without personal knowledge of the allegations of paragraph 18 and denies same. 19. Defendant is without personal knowledge of the allegations of paragraph 19 and denies same. 20. Defendant is without personal knowledge of the allegations of paragraph 20 and denies same. 21. Defendant is without personal knowledge of the allegations of paragraph 21 and denies same. 2

Case: 4:13-cv-02391-SNLJ Doc. #: 13 Filed: 04/22/14 Page: 3 of 7 PageID #: 238

22. Denied. 23. Denied. 24. Denied. 25. Defendant admits that Jim Edmonds was a professional baseball player with the St. Louis Cardinals for many years in varying capacities, that he would in that capacity, play against the Cincinnati Reds. Except as admitted, the remaining allegations of paragraph 25 are denied. 26. Admitted. 27. Defendant admits that Edmonds has been to Plaintiff’s establishment. Except as expressly admitted, the remaining allegations of paragraph 27 are denied. 28. Admitted. 29. Admitted. 30. Admitted. 31. Admitted. 32. Denied. 33. Defendant admits that it uses social media to promote its restaurant. Except as expressly admitted, Defendant denies the remainder of paragraph 33. 34. Defendant admits that its decor includes police memorabilia and sports memorabilia of Jim Edmonds. Except as expressly admitted, the remaining allegations of paragraph 34 are denied. 35. Defendant admits that it received a letter from Plaintiff’s attorney. Except as expressly admitted, the remaining allegations of paragraph 35 are denied. 36. Denied. 37. Denied. 38. Denied. 39. Denied. 40. Denied.

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Case: 4:13-cv-02391-SNLJ Doc. #: 13 Filed: 04/22/14 Page: 4 of 7 PageID #: 239

41. Defendant admits that it is not licensed by Plaintiff. Except as expressly admitted, the remaining allegations of paragraph 41 are denied. 42. Denied. Count I: Federal Trademark Infringement 43. Defendant reincorporates its response to paragraphs 1-42 as if expressly set forth herein. 44. Defendant is without personal knowledge of the allegations of paragraph 44 and denies same. 45. Denied. 46. Denied. 47. Denied. 48. Denied. 49. Denied. 50. Denied. 51. Denied. 52. Defendant admits that Plaintiff’s damages cannot be ascertained. Except as expressly admitted, the remainder of paragraph 52 are denied. 53. Denied.

Count II: Unfair Competition

54. Defendant incorporates by reference its response to allegations in paragraphs 1-53 as if expressly set forth herein. 55. Denied. 56. Denied. 57. Denied. 58. Denied. 4

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59. Denied. 60. Defendant admits that Plaintiff cannot yet ascertain its damages. Except as expressly

admitted, the remainder of paragraph 60 are denied. Count III: Missouri Statutory and Common Law Trademark and Unfair Competition under RSMo. 417.056

61. Defendant incorporates by reference its responses to allegations in paragraphs 1-60 as if expressly set forth herein. 62. Plaintiff has failed to allege facts, but rather merely legal conclusions. To the extent that Plaintiff’s allegations are construed to allege facts, they are expressly denied. 63. Denied. 64. Denied. 65. Denied. 66. Denied. 67. Denied.

Count IV: Missouri Statutory Infringement Trademark Dilution under RSMo. 417.061 68. Defendant incorporates its response to allegations in paragraphs 1-67 as if expressly set forth herein. 69. Denied. 70. Denied. 71. Denied. 72. Denied. 73. Denied. Defendant denies each every prayer for relief pled by Plaintiff. Affirmative Defenses 5

Case: 4:13-cv-02391-SNLJ Doc. #: 13 Filed: 04/22/14 Page: 6 of 7 PageID #: 241

1. Plaintiff has failed to maintain a distinctive mark for sufficient duration such that it has an enforceable interest under federal or state trademark law. 2. There is no substantial risk of confusion between Defendant and Plaintiff’s enterprise, especially given the differing cuisine and target audience of their customer base, as well as Defendant’s sports marketing centered on its namesake, Jim Edmonds. 3. Plaintiff’s damages if any are unascertainable, and not sufficiently definite to state a claim for relief as a matter of law, and are unduly speculative. 4. Plaintiff’s harm, if any, was proximately caused by its own conduct in the operation of a restaurant in the St. Louis community, and not on account of any confusion between Plaintiff and Defendant’s business. 5. Plaintiff’s allegations for injunctive relief are based upon a personal animus toward Jim Edmonds, and accordingly, should be barred due to unclean hands. 6. Plaintiff has failed to take sufficient measures to protect its mark from competition such that it has forfeited its legal protection for its mark as a matter of law.

Respectfully Submitted, /s/ John J. Pawloski _______________________________ John J. Pawloski #38059 The Law Office of John J. Pawloski, LLC 1900 Locust Street, Suite 302 St. Louis, MO 63103 (314) 588-7802 (314) 588-7803 (fax) JPawloski@msn.com

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Certificate of Service The undersigned does hereby certify pursuant to the Federal Rules of Civil Procedure and local rules of Court that a true and correct copy of the foregoing was provided to the counsel of record on this 21st day of April, 2014 via the Court’s electronic filing system to the following: Mr. Michael R. Annis Husch Blackwell, LLP 190 Carondolet Plaza, Suite 600 St. Louis, MO 63105 (314) 480-1500 (314) 480-1505 (fax) /s/ John J. Pawloski _________________________________________________

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