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Case 1:19-cv-01492-SEB-MJD Document 32 Filed 09/27/19 Page 1 of 29 PageID #: 145

IN THE UNITED STATED DISTRICT COURT


FOR THE SOUTHERN DISTRICT OF INDIANA
INDIANAPOLIS DIVISION

INDIE GAME STUDIOS, LLC )


a Delaware Limited Liability Company, )
d/b/a Stronghold Games LLC )
) Case No. 1:19-cv-1492
Plaintiff, )
)
v. )
)
PLAN B GAMES, INC. )
a Canadian corporation, and )
)
PLAN B GAMES EUROPE GMBH, )
a German company, )
)
Defendant(s). )

ANSWER AND AFFIRMATIVE DEFENSES TO COMPLAINT

Defendants, Plan B Games, Inc. and Plan B Games Europe GmbH (hereinafter at times

referred to as “Defendants”), by its attorneys, hereby submits its Answer and Affirmative

Defenses to the Complaint of the Plaintiff Indie Game Studios, LLC d/b/a Stronghold Games

LLC, as follows:

ANSWER

I. INTRODUCTION

1. In this action asserted by Stronghold against Defendants, Stronghold seeks


monetary relief for Defendants’ acts of trademark infringement and unfair competition under the
federal Lanham Act, trademark infringement and unfair competition under Indiana common law,
and common law conspiracy.

ANSWER: Defendants admit that Plaintiff has filed the Court Action with the claims

asserted, but Defendants deny that any such violation of said laws or tortious conduct occurred.

2. Stronghold Games LLC was a limited liability company organized under the laws
of Delaware and whose principal place of business is currently Florida. Stronghold Games LLC
was purchased by Travis Worthington on August 1, 2018. Stronghold Games LLC was merged
Case 1:19-cv-01492-SEB-MJD Document 32 Filed 09/27/19 Page 2 of 29 PageID #: 146

with Indie Game Studios LLC a Delaware Limited Liability Company, the surviving entity, on
March 1, 2019. Indie Game Studios continues to use Stronghold Games as a trade name.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 2 of the Complaint, and therefore deny those allegations.

3. On information and belief, Defendant Plan B Games, Inc. is a Canadian


corporation with a place of business at 19 rue de la Cooperative, Rigaud, QC JOP 1PO, Canada.

ANSWER: Defendant affirmatively states that it was misidentified in the Complaint

as Plan B Games, Inc. and its correct name is without the comma. With reference to the

correctly named Defendant, the allegations of Paragraph 3 are admitted.

4. On information and belief, Defendant Plan B Games Europe GmbH is a German


company with a place of business at Sinstorfer Weg 70, 21077 Hamburg, Germany.

ANSWER: Defendants deny the allegations of Paragraph 4 and affirmatively state that

the corporate address for the Head Office is Annabergstr. 2, 70374 Stuttgart, Germany

JURISDICTION AND VENUE

5. This action involves claims of unfair competition and false designation of origin
under the Federal Lanham Act (15 U.S.C. § 1125(a)), trademark infringement under Indiana law
(IN Code § 24-2-1-13), common law unfair competition, and common law conspiracy.

ANSWER: Defendants admit that Plaintiff is asserting in the paragraph the referenced

allegations, but Defendants deny that any such violation of said laws or tortious conduct

occurred.

6. This Court has jurisdiction over the subject matter of the claims pursuant to 28
U.S.C. § 1338(a), federal question jurisdiction, and 28 U.S.C. § 1332(a) (because the amount in
controversy exceeds $75,000 and this civil action is between citizens of a State and citizens or
subjects of a foreign state).

ANSWER: Defendants admit the jurisdiction of the Court, but Defendants deny that

any such violation of said laws or tortious conduct occurred.


 
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7. This Court has jurisdiction over the Defendants at least because they purposely
directed the activities at issue in this case towards this District, as evidenced at least by their
presence and activities at the 2018 GenCon convention that occurred in this District and the
offending sales that occurred in this District, as described more fully below.

ANSWER: Defendants admit the jurisdiction of the Court, but Defendants deny that

any such violation of said laws or tortious conduct occurred.

8. Venue is proper in this Court pursuant to 28 U.S.C. § 1391(b).

ANSWER: Defendants admit the jurisdiction of the Court, but Defendants deny that

any such violation of said laws or tortious conduct occurred.

II. FACTUAL BACKGROUND

A. Board game publishing

9. Stronghold is, among other things, in the business of marketing and selling
tabletop board games for the US and Canadian markets. Stronghold has been publishing and
marketing games since 2010 and has developed a favorable reputation in the industry by bringing
new and innovative board games to the American and Canadian gaming communities.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 9 of the Complaint, and therefore deny those allegations.

10. The marketing of board games is inherently risky, as it is difficult to anticipate the
commercial success any particular new game may have in these markets. Stronghold expends
considerable effort and expense bringing new games to market, and its business model depends
on its continued ability to enjoy the financial rewards of its initial effort and expense of bringing
those new games to the US and Canadian markets when those games are successful, including by
participating in the development and marketing of spinoff titles, variations, and/or expansions of
the original board game.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 10 of the Complaint, and therefore deny those

allegations.

11. Stronghold’s business model calls for it to contract with authors and/or foreign
rights holders to develop and publish board games in English for the American and Canadian
markets.


 
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ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 11 of the Complaint, and therefore deny those

allegations.

B. Stronghold’s marketing and sales of Great Western Trail in the U.S. and Canada

12. In 2016, Stronghold contracted with a German company known as eggertspiele


GmbH & Co. KG, (“eggertspiele”) whose principal place of business was Friedhostr. 17, D-
21073, Hamburg, Germany, regarding a new and soon-to-be-released board game that had been
designed by Alexander Pfister (“Pfister”) and was to be marketed under the trademark “Great
Western Trail.”

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 12 of the Complaint, and therefore deny those

allegations.

13. Per custom and practice, board games such as this new one are designed using
symbology or iconography to indicate the actions to take when “workers” are placed on the game
board. The language dependence is often limited to the playing cards and rules used in the
Game, as was the case here. Stronghold evaluated this new board game and provided its
feedback before the English language version of the game cards and rules were finalized and/or
published. The front and back of the relevant board game Stronghold eventually sold throughout
the U.S. and Canada (“Stronghold Version”) is shown below.

Stronghold Version- Front Stronghold Version- Back


 
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ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 13 of the Complaint, and therefore deny those

allegations, with the exception that the front and back of the game appears to have been shown in

the paragraph.

14. Stronghold obtained the exclusive rights to sell this new board game in the
English language in the United States and Canada from the time of the contract, August 3, 2016,
through December 31, 2018. This time period was named the “minimum contract duration” and
the contract anticipated future successive one-year extensions subject to cancellation by 3 month
written notice.

ANSWER: Defendants deny the out of context construction and summarization of the

alleged contract and affirmatively state that the contract speaks for itself with Defendants thereby

denying the summarization thereof, as provided in Paragraph 14.

15. One of the obligations eggertspiele agreed to was it “will not during the term
grant to any other person, firm or company any rights that would derogate from the grant made”
in its contract with Stronghold Games.


 
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ANSWER: Defendants deny the out of context construction and summarization of the

alleged contract and affirmatively state that the contract speaks for itself with Defendants,

thereby denying the summarization thereof as provided in Paragraph 15.

16. Per custom and practice in the board gaming industry, Stronghold expected
eggertspiele to allow Stronghold to obtain reprints of this new game to sell throughout the United
States during the pendency of its rights.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 16 of the Complaint, and therefore deny those

allegations.

17. Prior to Stronghold selling the Stronghold Version, this new board game had not
been previously produced or distributed in the United States or Canada, and on information and
belief, there had been no other board game previously marketed in the United States or Canada
using the distinctive name “Great Western Trail” or any other name confusingly similar thereto.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 17 of the Complaint, and therefore deny those

allegations.

18. At the time Stronghold Games introduced this new game to the US market, the
Great Western Trail name, including the distinctive lettering thereof, as shown on the front and
back of the Stronghold Version above (hereafter “the GWT marks”) was inherently distinctive as
a board game trademark. The distinctive commercial impression created by the use of the GWT
marks on the Stronghold Version was associated with Stronghold, the board game publisher, as

evidenced by the inclusion of the Stronghold Games “Castle” logo on the game
box.

ANSWER: Defendants deny the allegations of Paragraph No. 18 that the GWT marks

were associated or the property of Stronghold and with respect to the remaining allegations of

Paragraph 18 of the Complaint, including the legal conclusions, the Defendants deny those

allegations.


 
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19. Stronghold promoted and sold the Stronghold Version of this new board game
extensively throughout the US using the distinctive GWT marks, and by virtue of this use of the
GWT marks, Stronghold became the owner of the common law rights to the GWT marks for use
on board games in the US.

ANSWER: Defendants deny the allegations of Paragraph 19 of the Complaint.

20. Stronghold has continuously owned these trademark rights at all relevant times
and has not abandoned them.

ANSWER: Defendants deny the allegations of Paragraph 20 of the Complaint.

21. Stronghold also developed considerable positive goodwill for this new game and
the GWT marks in a variety of ways.

ANSWER: Defendants deny the allegations of Paragraph 21 of the Complaint.

22. For example, the Stronghold website advertised Great Western Trail and made it
available for purchase.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 22 of the Complaint, and therefore deny those

allegations.

23. Stronghold paid for a significant advertising and marketing campaign.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 23 of the Complaint, and therefore deny those

allegations.

24. Stronghold has relationships with various industry insiders and thought leaders,
and it leveraged these relationships to market Great Western Trail.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 24 of the Complaint, and therefore deny those

allegations.

25. To market the game, Stronghold sent various podcasters copies of Great Western
Trail for their review at Stronghold’s sole expense, including by way of example: Dice Tower
Media (Tom Vasel), Secret Cabal Gaming Podcast (Jamie Keagy), On Board Games podcast


 
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(Donald Dennis), Rolling Dice & Taking Names Podcast (Marty Connell), Drive Thru Reviews
(Joel Eddy), Chris Schreiber, and Heavy Cardboard. For example, Great Western Trail was
featured on The Secret Cabal podcast, which is sponsored by Stronghold and currently has
thousands of YouTube and podcast subscribers.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 25 of the Complaint, and therefore deny those

allegations.

26. Stronghold’s president, Stephen Buonocore, co-hosts a podcast called Board


Games Insider, which provides industry information; he utilized time on this podcast to advertise
and market Great Western Trail.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 26 of the Complaint, and therefore deny those

allegations.

27. Stronghold also created a group called The Knights of the Stronghold – a group of
volunteers who learn Stronghold titles and teach them at local game stores. Stronghold supplied
The Knights of the Stronghold with copies of Great Western Trail to teach from, at Stronghold’s
sole expense.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 27 of the Complaint, and therefore deny those

allegations.

28. At its sole expense, Stronghold provided copies of Great Western Trail to game
stores throughout the United States and Canada for their store libraries, so customers could look
at and play the game to encourage sales of the game.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 28 of the Complaint, and therefore deny those

allegations.

29. At its sole expense, Stronghold provided copies of Great Western Trail to board
gaming groups and conventions throughout the United States and Canada, so convention
attendees could play the game, also expecting that the games would be given away in “play-and-
wins” or as door prizes.


 
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ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 29 of the Complaint, and therefore deny those

allegations.

30. Because rule books cannot anticipate every question that might be asked, board
gamers often utilize the industry website www.boardgamegeek.com (“BGG”) to post questions
about game mechanics, rules, strategies, and variants; Stronghold personnel answered questions
about Great Western Trail on various fora threads on BGG.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 30 of the Complaint, and therefore deny those

allegations.

31. Stronghold’s castle logo was featured on the box cover, box back, rule book for
Great Western Trail, and advertising and marketing for Great Western Trail.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 31 of the Complaint, and therefore deny those

allegations.

32. Further, Stronghold created a special series of games called The Great Designers
Series, and these games received special marketing efforts.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 32 of the Complaint, and therefore deny those

allegations.

33. Great Western Trail was #7 in the Stronghold Great Designers Series.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 33 of the Complaint, and therefore deny those

allegations.


 
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34. Stronghold paid for booth space at board gaming conventions, created and
purchased marketing materials for Great Western Trail including banners, and paid for the
shipping and handling to make Great Western Trail available for sale at these conventions.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 34 of the Complaint, and therefore deny those

allegations.

35. Stronghold sponsored certain conventions to provide even more substantial


marketing for its games (including Great Western Trail) at these conventions.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 35 of the Complaint, and therefore deny those

allegations.

C. Stronghold’s requests for reprints of Great Western Trail

36. Game publishers hope for a “smash hit” of a game; The Stronghold Version of
this new game, Great Western Trail, was a “smash hit.”

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 36 of the Complaint, and therefore deny those

allegations.

37. Great Western Trail was initially released in the U.S. in November of 2016.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 37 of the Complaint, and therefore deny those

allegations.

38. By April 2017, Stronghold was requesting another large print run of Great
Western Trail from eggertspiele to meet the growing consumer demand for the game; unlike
their prior corporate dealings this request to eggertspiele went unanswered.

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ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 38 of the Complaint, and therefore deny those

allegations.

39. On June 9, 2017, Stronghold made a written request for a 10,000 unit print run for
Great Western Trail:

Peter, Phil,

I have asked you many times over the last 2 months to enable me
to print GREAT WESTERN TRAIL again, per our contract.

Stronghold Games has much customer demand for this product,


which I need to satisfy immediately as well as for the very
important holiday season. If I do not print more units of this product
very quickly, Stronghold Games will be damaged by the [loss] of
revenue, since as you are aware, product demand in this industry
reduces over time as customers move onto the next games that are
being released.

Therefore, and very specifically, I politely request that you


enable me to print GREAT WESTERN TRAIL immediately.

My order is 10,000 units, which you have informed me is the


"minimum print run size", so that no other partners need to be
involved. Stronghold Games now commits to 10,000 units (at
minimum - we can discuss higher quantities), and we expect to
receive a price which is in line with this very large print run size.
For reference, as you know, we received a price of 10.62
EUR/unit on our last much smaller print run of 5000 units.

Please reply back with your commitment to enable me to print


Great Western Trail, per the above.

I need your commitment no later than June 16, 2017.

Thanks for your interest and support of Stronghold Games!

Thanks,
Stephen M. Buonocore Stronghold Games
www.strongholdgames.com

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ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 39 of the Complaint, and therefore deny those

allegations.

40. On Friday, June 9, Stronghold’s Stephen Buonocore was told by Phil El Alaoui at
eggertspiele that the assets of eggertspiele had been purchased by Plan B Games, one of the
Defendants in this case.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 40 of the Complaint, and therefore deny those

allegations.

41. On Friday, June 16, Stephen Buonocore and Patrick J. Olmstead, Jr., outside
counsel for Stronghold, spoke with Sophie Gravel and Martin Tremblay of Plan B Games.

ANSWER: Defendants admit that a telephone conversation occurred, but as to the

date of such conversation Defendants lack knowledge or information sufficient to form a belief

as to the truth of the allegations in Paragraph 41 of the Complaint, and therefore deny those

allegations.

42. During the phone call, Stronghold repeated its request for a reprint of 10,000 units
of Great Western Trail and offered to pay for a larger print run, if that was preferred.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 42 of the Complaint, and therefore deny those

allegations.

43. On June 23, 2017, eggertspiele sent Stronghold an e-mail providing:

23.06.17

Changes at eggertspiele

Hello Stephen,

eggertspiele has been acquired by Plan B Inc.! We, Peter Eggert


and Philipp El Alaoui, as well as Viktor Kobilke and Philippe

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Schmit will stay on board and eggertspiele will be a brand in


the Plan B world. We're a looking forward to working together
with the Plan B team.

Of course we will have some changes in our business operations.


Until the transition is fully completed Peter and Philipp remain
your contact for eggertspiele and we're very happy to meet you
in Essen. All meetings in Essen will take place as planned.

Please be assured that productions for which you have order


confirmations will be produced in accordance to schedule.
Our future projects, this includes our two new Essen releases
"Reworld" and "Heaven & Ale", will became brand products
of Plan B.

Peter and Philipp will keep you informed about our two new
Essen releases as well as the changes in business operations. If
you have any questions or are missing information please contact
us!

Kind regards

Peter Eggert & Philipp El Alaoui

ANSWER: Defendants admit that the above email occurred.

44. On June 23, 2017, Martin Tremblay spoke with Stronghold’s Stephen Buonocore
by skype and provided, in relevant part, that Stronghold and Plan B had no contract, and
Stronghold needed to contact eggertspiele about a reprint of Great Western Trail.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 44 of the Complaint, and therefore deny those

allegations.

45. On June 23, 2017, Stephen Buonocore sent this follow-up e-mail to Martin
Tremblay:

Dear Martin,

First, I once again congratulate you on your partnership with


eggertspiele. Thanks for speaking with me today. On behalf
of Plan B Games, you informed me that Plan B Games
disclaims any opposition or interest regarding the production
and manufacture of games under contract with eggertspiele.

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Thus, Plan B Games does not oppose in any way eggertspiele


producing additional copies of Great Western Trail for
Stronghold Games, pursuant to our contractual rights. As you
know, we have a contract for the production of Great Western
Trail through December 31, 2018. I appreciate your
clarification that we may resume our rights under our
contract, which we intend to do in earnest. We are confirming
with eggertspiele today our request for a print run of at least
10,000 units.

Warmest regards, Stephen

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 45 of the Complaint, and therefore deny those

allegations.

46. For reasons that remain somewhat unclear, and despite its contractual rights that
extended through at least December 30, 2018, Stronghold’s efforts to secure a reprint of the
Stronghold Version of Great Western Trail during 2017 (or at any time prior to December 31,
2018) were unsuccessful. Thus, customers seeking the Stronghold Version had to be told the
game was “out of stock,” and there became a significant buildup of unmet demand for this
increasingly popular Stronghold game.

ANSWER: Defendants deny the allegations of the first sentence of Paragraph 46 and

with regard to the second sentence of Paragraph 46 the Defendants lack knowledge or

information sufficient to form a belief as to the truth of the allegations, and therefore deny those

allegations.

47. By the end of 2017/beginning of 2018, Great Western Trail had become a top 10
game on BGG. See post from Alexander Pfister on BGG from Jan. 12, 2018 at 7:05 pm (“Thank
you! I feel very honored about this game being Top 10. That said I believe one can’t say that
game #10 (Great Western Trail) is better than game #11 (Castles of Burgundy) or even #20. It’s
a nice statistic however!”) (https://www.boardgamegeek.com/article/28232137#28232137). By
February 8, 2018, Great Western Trail would rise to #9 on BGG – the same spot it holds today.

ANSWER: Defendants admit this information appears to have been posted, but

Defendants lack knowledge or information sufficient to form a belief as to the truth of the

allegations in Paragraph 47 of the Complaint, and therefore deny those allegations.

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D. Defendants’ Infringement of Stronghold’s Great Western Trail Marks / unfair competition

48. In or around January of 2018, Defendants released their version of Great Western
Trail (hereinafter “Plan B Version”), a copy of which is shown below, and compared to the
Stronghold Games version:

Plan B
Version

Stronghold
Version

ANSWER: Defendants admit the above allegations, but deny the preface to the

paragraph entitled D above and Defendants further deny that any such violation of said laws or

tortious conduct occurred.

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49. The Plan B Version is virtually identical to the Stronghold Version, and on
information and belief, has been marketed and sold throughout the US to those customers that
had been seeking the “out of stock” Stronghold Version. This is evident by the near identity of
the game boxes, including the fact that the Plan B Version uses the identical GWT marks,
including the distinctive lettering used in the Stronghold Version.

ANSWER: Defendants deny the allegations of the legal conclusions of “near identity”

or “virtually identical” of the games as significant differences exist in the branding of the games

and Defendants thereby deny the allegations of Paragraph 49.

50. In both the Stronghold Version and the Plan B Version, “Great Western Trail” is
the trademark for the game, and this trademark is used in the same lettering and in the same
location on the front and back of the game box.

ANSWER: Defendants deny that Great Western Trail is the only trademark used on

the versions of the games, but admit that the trademark is used on the games and that the

referenced lettering is similar and used on similar locations on the front and back of the box.

51. Plan B was well aware of the pent-up demand for the Stronghold Version of this
game in 2017, and the introduction of the nearly identical Plan B Version in early 2018 to satisfy
the pent-up demand for the Stronghold Version improperly traded on Stronghold’s goodwill and
has led to consumer confusion. In fact, the BGG entry of Great Western Trail continues to
feature the image of the Stronghold Version.

https://boardgamegeek.com/boardgame/193738/great-western-trail.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 51 of the Complaint, and therefore deny those

allegations and specifically deny the legal conclusions and allegations of any improper actions

and of consumer confusion.

52. By using nearly identical packaging, including the GWT marks owned at all
relevant times by Stronghold, the Plan B Version capitalized on the goodwill established by
Stronghold.

ANSWER: Defendants deny the allegations of Paragraph 52 of the Complaint.

53. The Plan B version has been distributed in the United States and Canada in
derogation of Stronghold’s preexisting trademark rights.

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ANSWER: Defendants deny the allegations of Paragraph 53 of the Complaint.

E. Defendants’ Infringement in the Southern District of Indiana

54. The Plan B Version was distributed by Plan B Games throughout the United
States using GTS Distribution.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 54 of the Complaint, and therefore deny those

allegations.

55. Copies of the Plan B Version were sold in the Southern District of Indiana.

ANSWER: Defendants admit the allegations of Paragraph No. 55 of the Complaint.

56. For example, one infringing version was sold at Family Time Games, in
Indianapolis, Indiana, within the Southern District of Indiana on or about February 20, 2018, as
shown by the following copy of the receipt:

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ANSWER: Defendants deny the allegations that the game identified is an “infringing

version” of the game and thereby deny the allegations of Paragraph 56.

57. Indianapolis, Indiana is the host for GenCon, the largest tabletop gaming
convention in North America.

ANSWER: Defendants admit the allegations of Paragraph No. 57 of the Complaint.

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58. The infringing Plan B Version was sold at the Plan B Games booth during
GenCon 2018, as shown by the photograph reproduced below and a receipt for one such sale e-
mailed from Plan B Games, Inc.:

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ANSWER: Defendants deny the allegations of Paragraph 58 of the Complaint.

59. Thus, Defendants have sold infringing copies of Great Western Trail in the
Southern District of Indiana, in derogation of Stronghold’s trademark rights.

ANSWER: Defendants deny the allegations of Paragraph 59 of the Complaint.

F. Plan B’s works are degrading Stronghold’s goodwill and reputation in the industry

60. If replacement parts are needed for a game, the consumer will typically contact
the publisher.

ANSWER: Defendants deny the allegations of Paragraph 60 of the Complaint.

61. On information and belief, Plan B has produced and sold Great Western Trail
games that have missing or defective parts.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 61 of the Complaint, and therefore deny those

allegations.

62. Consumers who have purchased the Plan B Version with missing or defective
parts have been erroneously contacting Stronghold to address their complaints. These
erroneously directed requests for replacement parts are both damaging to Stronghold’s reputation
and confirmation that consumers continue to associate the Great Western Trail game marketed
under the GWT marks, with Stronghold.

ANSWER: Defendants lack knowledge or information sufficient to form a belief as to

the truth of the allegations in Paragraph 62 of the Complaint, and therefore deny those

allegations.

63. Thus, the public is actually confused by the identically branded Plan B Version of
the Great Western Trail game, whose goodwill is associated with Stronghold Games.

ANSWER: Defendants deny the allegations of Paragraph 63 of the Complaint.

64. Plan B has traded on and has improperly benefited from the goodwill developed
solely and exclusively by Stronghold.

ANSWER: Defendants deny the allegations of Paragraph 64 of the Complaint.

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65. Meanwhile, Plan B’s production problems have damaged the reputation of
Stronghold in the marketplace, as shown by customers asking Stronghold to replace damaged or
missing components for games that Stronghold did not actually sell.

ANSWER: Defendants deny the allegations of Paragraph 65 of the Complaint.

66. Defendants’ use of the GWT marks to market identical goods to identical
consumers is likely to cause confusion, deception, and mistake by creating the false and
misleading impression that the Plan B Version originates from or is associated or connected
with, or has the sponsorship, endorsement or approval of, Stronghold.

ANSWER: Defendants deny the allegations of Paragraph 66 of the Complaint.

COUNT I
FEDERAL UNFAIR COMPETITION AND FALSE DESIGNATION OF ORIGIN
(Lanham Act, 15 U.S.C. 1125(a))

67. Stronghold incorporates by reference and realleges each allegation set forth in
paragraphs 1 through 66 as if fully set forth herein.

ANSWER: Defendants repeat and reallege the responses to each and every allegation

set forth in the foregoing paragraphs 1 through 66 of the Complaint as though fully set forth at

length herein.

68. Stronghold was the first to use the GWT marks on a board game in the United
States, and through this use developed strong and enforceable trademark rights in the GWT
marks for board games, including the name “Great Western Trail” and the stylized font in which
it is presented on the front and back of the game box, which it has not abandoned and has owned
at all relevant times.

ANSWER: Defendants deny the allegations of Paragraph 68 of the Complaint.

69. Defendants intentionally began using this same GWT mark to market a virtually
identical product to virtually identical customers in derogation of the trademark laws of the
Unites States, and continue to do so, causing harm to Stronghold. Defendants have also engaged
in unfair trade practices and unfair competition in connection with their use, publication, and sale
of the infringing copies of Great Western Trail.

ANSWER: Defendants deny the allegations of Paragraph 69 of the Complaint.

70. Defendants’ use of the GWT marks to market identical goods to virtually identical
consumers is likely to cause confusion, deception, and mistake by creating the false and
misleading impression that the Plan B Version originates from or is associated or connected with,
or has the sponsorship, endorsement or approval of, Stronghold.

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ANSWER: Defendants deny the allegations of Paragraph 70 of the Complaint.

71. Stronghold has sustained injury to its business’ reputation and goodwill, and
Defendants have unlawfully derived income and profits from their wrongful acts.

ANSWER: Defendants deny the allegations of Paragraph 72 of the Complaint.

72. Defendants’ acts have been committed with the intent to cause deception,
confusion or mistake.

ANSWER: Defendants deny the allegations of Paragraph 72 of the Complaint.

COUNT II
INDIANA TRADEMARK INFRINGEMENT
(IN Code § 24-2-1-13 (2017))

73. Stronghold incorporates by reference and realleges each allegation set forth in
paragraphs 1 through 72 as if fully set forth herein.

ANSWER: Defendants repeat and reallege the responses to each and every allegation

set forth in the foregoing paragraphs 1 through 72 of the Complaint as though fully set forth at

length herein.

74. Stronghold was the first to use the GWT marks in the United States and in Indiana
in connection with a board game, and through this use Stronghold developed strong and
enforceable trademark rights in the GWT marks, including the name Great Western Trail and the
stylized font in which it is presented on the game box, which it has not abandoned and has
continued to own at all relevant times.

ANSWER: Defendants deny the allegations of Paragraph 74 of the Complaint.

75. Defendants intentionally began using this same GWT mark in Indiana to market a
virtually identical product in Indiana to virtually identical customers in derogation of the
trademark laws of the State of Indiana, and continue to do so, causing harm to Stronghold.
Defendants have also engaged in unfair trade practices and unfair competition in connection with
their use, publication, and sale of the infringing copies of Great Western Trail in Indiana.

ANSWER: Defendants deny the allegations of Paragraph 75 of the Complaint.

76. Defendants’ use of the GWT marks to market identical goods to virtually identical
consumers in Indiana is likely to cause confusion, deception, and mistake by creating the false

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and misleading impression that the Plan B Version originates from or is associated or connected
with, or has the sponsorship, endorsement or approval of, Stronghold.

ANSWER: Defendants deny the allegations of Paragraph 76 of the Complaint.

77. Stronghold has sustained injury to its business’ reputation and goodwill, and
Defendants have unlawfully derived income and profits from their wrongful acts.

ANSWER: Defendants deny the allegations of Paragraph 77 of the Complaint.

78. Defendants’ acts have been committed with the intent to cause deception,
confusion or mistake.

ANSWER: Defendants deny the allegations of Paragraph 78 of the Complaint.

COUNT III
COMMON LAW UNFAIR COMPETITION

79. Stronghold incorporates by reference and realleges each allegation set forth in
paragraphs 1 through 78 as if fully set forth herein.

ANSWER: Defendants repeat and reallege the responses to each and every allegation

set forth in the foregoing paragraphs 1 through 78 of the Complaint as though fully set forth at

length herein.

80. Stronghold has extensively marketed the game Great Western Trail using the
GWT marks, which are inherently distinctive, and which have become associated with
Stronghold. Defendants had knowledge in 2017 that there was strong demand for the Stronghold
Version of the game and that Stronghold was actively seeking to replenish its inventory to meet
that demand.

ANSWER: Defendants deny the allegations of Paragraph 80 of the Complaint.

81. Defendants’ use of the GWT marks in early 2018 to market identical goods to
virtually identical consumers was an unlawful effort to capitalize on that strong demand and/or
constitutes and effort to pass off their goods as the goods of another.

ANSWER: Defendants deny the allegations of Paragraph 81 of the Complaint.

82. Defendants’ use of the identical GWT marks was likely to cause confusion,
deception, and mistake by creating the false and misleading impression that the Plan B Version
was the Stronghold Version or that it originated from or was associated or connected with, or had
the sponsorship, endorsement or approval of, Stronghold.

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ANSWER: Defendants deny the allegations of Paragraph 82 of the Complaint.

83. Defendants have created, promoted and advertised the Plan B Version with the
GWT Marks in violation of and with knowledge of Stronghold’s rights for the purpose of trading
on Stronghold’s goodwill and reputation.

ANSWER: Defendants deny the allegations of Paragraph 83 of the Complaint.

84. Stronghold has been damaged by Defendants’ unfair competition.

ANSWER: Defendants deny the allegations of Paragraph 84 of the Complaint.

COUNT IV
CONSPIRACY

85. Stronghold incorporates by reference and realleges each allegation set forth in
paragraphs 1 through 84 as if fully set forth herein.

ANSWER: Defendants repeat and reallege the responses to each and every allegation

set forth in the foregoing paragraphs 1 through 84 of the Complaint as though fully set forth at

length herein.

86. Stronghold has extensively marketed the game Great Western Trail using the
GWT marks, which are inherently distinctive, and which have become associated with
Stronghold. Plan B had knowledge in 2017 that there was strong demand for the Stronghold
Version of the game and that Stronghold was actively seeking to replenish its inventory to meet
that demand.

ANSWER: Defendants deny the allegations of Paragraph 86 of the Complaint.

87. Plan B also had knowledge that Stronghold had a contract with eggertspiele which
gave Stronghold exclusive rights for sales in the United States and Canada through the end of
2018 with respect to the Great Western Trail game. Plan B also knew that eggertspiele had
received requests from Stronghold in 2017 with respect to a reprint of the Stronghold Version of
the Great Western Trail game.

ANSWER: Defendants deny the allegations of Paragraph 87 of the Complaint.

88. On information and belief, Plan B used this knowledge and/or conspired with
others such that they were able to introduce the Plan B Version during a time when the
Stronghold Version was out of stock, thereby capturing the pent-up consumer demand for the
Stronghold Version of the game by selling the nearly identical Plan B Version.

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ANSWER: Defendants deny the allegations of Paragraph 88 of the Complaint.

89. Defendants conspired to create the Plan B Version and to time its introduction to
the market to unlawfully pass off the Plan B Version as the Stronghold Version.

ANSWER: Defendants deny the allegations of Paragraph 89 of the Complaint.

90. Defendants’ use of the identical GWT marks was likely to cause confusion,
deception, and mistake by creating the false and misleading impression that the Plan B Version
was the Stronghold Version or that it originated from or was associated or connected with, or had
the sponsorship, endorsement or approval of, Stronghold.

ANSWER: Defendants deny the allegations of Paragraph 90 of the Complaint.

91. Defendants’ conspiracy proximately caused damages to Stronghold.

ANSWER: Defendants deny the allegations of Paragraph 91 of the Complaint.

AFFIRMATIVE DEFENSES

Defendants hereby set forth their separate and distinct Affirmative Defenses to Plaintiff’s

Complaint, and set forth the following matters to apprise Plaintiff of certain applicable defenses.

By listing any matter as an Affirmative Defense, Defendants do not assume the burden of

proving any matter upon which Plaintiff bears the burden of proof on such legal issues.

Defendants specifically reserve all rights to modify or withdraw any such potential or conditional

Affirmative Defense as continuing discovery in this matter may cause to be appropriate.

FIRST AFFIRMATIVE DEFENSE

1. Each and every claim for relief in Plaintiff’s Complaint fails to state sufficient

facts to constitute a cause of action against Defendants. For instance, Plaintiff has not asserted

any rights beyond a distribution agreement that was terminated and Plaintiff has no claim of

rights in the mark GREAT WESTERN TRAIL. Plaintiff has also not asserted any breach of

contract by the Defendants or any other claim under contract that would give rise to any assertion

of rights in the mark at issue, GREAT WESTERN TRAIL. Based upon the legal contentions

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asserted and the factual situation, the Defendants request under Rule 11 of the Federal Rules of

Civil Procedure, and pursuant to 15 U.S.C. §1117 of the Lanham Act, that the Court assess the

costs of this action and attorneys’ fees against Plaintiff and find this case to be exceptional for

awarding such attorneys’ fees against the Plaintiff under the provisions of the Lanham

Trademark Act and the Federal Rules of Civil Procedure.

SECOND AFFIRMATIVE DEFENSE

2. Each and every claim for relief in Plaintiff’s Complaint fails to state a claim upon

which relief can be granted against Defendants, because Defendants have not performed any act

that constitutes a violation of the Lanham Act or otherwise in violation of any law.

THIRD AFFIRMATIVE DEFENSE

3. Each and every claim for relief in Plaintiff’s Complaint fails to state a claim upon

which relief can be granted against the Defendants, because the alleged acts of Defendants do not

constitute any unlawful infringement of Plaintiff’s alleged common law trademark rights, which

Plaintiff has no right to even assert.

FOURTH AFFIRMATIVE DEFENSE

4. Plaintiff has not properly asserted any rights under contract or for breach of

contract. To the extent that any contractual claims could give rise to any claim of rights by

Plaintiff, or to the extent that contractual rights are somehow involved in this matter, then

Defendants assert the failure of the Plaintiff to join an indispensable party to this lawsuit, namely

the prior entity providing the distribution contract to the Plaintiff and also being the entity that

terminated that contract. There would be no privity between the Plaintiff in this lawsuit and the

Defendants in any claim under the prior contract or any claim that the prior contract was

breached, which to the extent any breach of contract would have occurred that would have been

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between the parties in privity with the Plaintiff under that contract, which does not include either

of the Defendants.

FIFTH AFFIRMATIVE DEFENSE

5. To the extent that there are any operative documents under which Plaintiff claims

any rights to the mark GREAT WESTERN TRAIL, the Plaintiff has failed to provide or attach

such documents as exhibits, or even to refer to such documents as being operative documents for

basing any claim of rights, and under the circumstances the Complaint should be dismissed for

the failure to properly plead a cause of action.

SIXTH AFFIRMATIVE DEFENSE

6. Under the so called “CONSPIRACY” Count IV of the Complaint, the Plaintiff

has failed to properly identify the parties to any asserted claim of a conspiracy or what acts gave

rise to a conspiracy, or what wrongful conduct would have occurred giving rise to a conspiracy,

and as such the conspiracy Count of the Complaint fails to identify a violation of any specified

law or any potential rights of Plaintiff giving rise to a so called claim of “CONSPIRACY”.

Furthermore Plaintiff has failed to identify what statute or law is being asserted on which it is

basing its claim of rights under a so called alleged “CONSPIRACY” violation.

PRAYER FOR RELIEF

WHEREFORE Defendants pray for relief as follows:

(a) that the Complaint be dismissed with prejudice with judgment entered in favor of

Defendants and against all claims of Plaintiff;

(b) that this Court assess the costs of this action and attorneys’ fees against Plaintiff

and under the provisions of the Trademark Act based upon findings that this case is exceptional,

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pursuant to 15 U.S.C. §1117 of the Lanham Act, and Federal Rule 11 of the Federal Rules of

Civil Procedure;

(c) and that Defendants have such other and further relief as the Court may deem as

just and equitable.

DEMAND FOR JURY TRIAL

Defendants admit that Plaintiff has made a request for jury trial. Defendants also request

a trial by jury of all issues so triable.

/s/ Burton S. Ehrlich


Burton S. Ehrlich (Pro Hac Vice Appearance)
Ladas & Parry LLP
224 S. Michigan Avenue, Suite 1600
Chicago, IL 60604
Phone: 312-427-1300
Facsimile: 312-427-6663 email:
burte@ladas.net

Darlene R. Seymour
Attorney Number: 23133-49
1010 Woodbridge Lane
Indianapolis, IN 46260
(317) 513-7463
dari1s@yahoo.com
Attorneys for Defendants Plan B Games Inc.
and Plan B Games Europe GmbH

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CERTIFICATE OF SERVICE

I certify that I electronically filed the foregoing document on September 27, 2019, using
the CM/ECF System and that the foregoing document was served upon the following counsel of
record listed in the CM/ECF system:

Patrick Olmstead Law LLC John Michael Bradshaw


633 Library Park Dr., Ste. K BRADSHAW LAW LLC
P.O. Box 1067 23 East 39th Street
Greenwood, IN 46142 Indianapolis, IN 46205
(317) 884-8524 317-490-4852
polmstead@patrickolmsteadlaw.com 866-283-8549 (fax)
john@jbradshawlaw.com

/s/ Burton S. Ehrlich


Burton S. Ehrlich 

29