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Jeffrey L. Cimbalo (JC-6680) THE CIMBALO FIRM, P.C. 1306 W. Main St. Richmond, VA 23220 Tel: (804) 313-6266 jcimbalo@cimbalofirm.com Paul R. Niehaus (PN-3394) S. Gabriel Hayes-Williams (SH-0075) NIEHAUS LLP 1359 Broadway Suite 2001 New York, NY 10018 Tel: (212) 631-0223 Fax: (212) 624-0223 Attorneys for Defendant Thursday Friday, Inc. UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ____________________________________ ) ) ) ) Plaintiff, ) ) ) ) THURSDAY FRIDAY, INC., a California ) corporation, ) ) Defendant. ) ) ____________________________________) HERMÈS INTERNATIONAL, a French corporation,

No. 11 Civ. 580 (AKH) The Honorable Alvin K. Hellerstein JURY TRIAL DEMANDED

ANSWER AND AFFIRMATIVE DEFENSES TO FIRST AMENDED COMPLAINT OF DEFENDANT THURSDAY FRIDAY, INC.

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Defendant Thursday Friday, Inc. (“Thursday Friday”), through its attorneys The Cimbalo Firm, P.C. and Niehaus LLP, responds to the First Amended Complaint in this action as follows: INTRODUCTION 1. Thursday Friday admits that plaintiff creates, manufactures, and sells the “Birkin” handbag. Thursday Friday lacks knowledge or information sufficient to form a belief as to the truth of the allegation of how many women recognize the Birkin bag’s appearance. Thursday Friday denies the remaining allegations in Paragraph 1. 2. As to the allegations in Paragraph 2, the allegations set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 2. PARTIES 3. Thursday Friday admits the allegations in Paragraph 3, but states that Hermès’s address is believed to be 24 rue du Faubourg St.-Honoré 75008, Paris, France. 4. As to the allegations in Paragraph 4, the allegations set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 4.

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JURISDICTION AND VENUE 5. Thursday Friday admits that plaintiff purports to bring this action under the Lanham Act and New York state statutes and common law, and that this Court has jurisdiction over plaintiff’s claims. The remaining allegations in Paragraph 5 set forth legal conclusions that do not require a response. Thursday Friday specifically denies that plaintiff is entitled to any relief whatsoever from Thursday Friday. 6. Thursday Friday admits that personal jurisdiction is proper under the statutory provisions identified in Paragraph 6, but the allegation that Defendant has committed “tortuous” acts in New York is denied. 7. Thursday Friday admits the allegations in Paragraph 7, except the allegation that a substantial part of the claims arose in this district, which allegation calls for a legal conclusion that does not require a response. FACTS COMMON TO ALL COUNTS Plaintiff and the Birkin Bag 8. Thursday Friday lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 8, and they are consequently denied. 9. Thursday Friday lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 9, and they are consequently denied.

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10.

Thursday Friday lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 10, and they are consequently denied.

11.

Thursday Friday admits that the design of the Birkin bag contains the features listed, and more, but the remaining allegation in Paragraph 11 calls for a legal conclusion, to which no response is required.

12.

Thursday Friday admits the existence of a registration as shown in Exhibit B, which document speaks for itself. As to the remaining allegations in Paragraph 12, the allegations set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations as to the remaining allegations in Paragraph 12.

13.

Thursday Friday admits that the Birkin bag is often made of leather, but lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 13, and they are consequently denied.

14.

Thursday Friday lacks knowledge or information sufficient to form a belief about the truth of the allegations in Paragraph 14, and they are consequently denied.

15.

Thursday Friday admits that fashion magazines show the Birkin bag, as shown in Exhibit C, and those documents speak for themselves. Thursday Friday lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 15, and they are consequently denied.

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16.

Thursday Friday admits that Exhibit D describes a plot of the television show, which document speaks for itself. Thursday Friday lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations of Paragraph 16, and they are consequently denied.

17.

Thursday Friday admits that Exhibits E and F show documents related to a book about Birkin bags, which documents speak for themselves. Thursday Friday lacks knowledge or information sufficient to form a belief about the truth of the remaining allegations in Paragraph 17, and they are consequently denied.

18. 19.

Thursday Friday denies the allegations in Paragraph 18. Thursday Friday admits that the case cited was filed, and that any final judgment speaks for itself. The remaining allegations in Paragraph 19 set forth legal conclusions that do not require a response. Defendant’s Acts

20.

Thursday Friday denies the allegations in Paragraph 20, except Thursday Friday admits that it is a relatively recently formed corporation.

21.

Thursday Friday admits the allegations in Paragraph 21, except Thursday Friday denies that the photographs on the Together Bag’s sides appear to be of a genuine Hermès Birkin, since genuine Hermès Birkin bags have plaintiff’s word trademarks that are not present on the photographs.

22. 23. 24.

Thursday Friday admits the allegations in Paragraph 22. Thursday Friday denies the allegations in Paragraph 23. Thursday Friday denies the allegations in Paragraph 24.

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25.

Thursday Friday denies the allegations in Paragraph 25. COUNT ONE (False Designation of Origin – 15 U.S.C. § 1125(a)(1)(A))

26.

In response to the allegations in Paragraph 26, Thursday Friday restates and incorporates herein responses set forth above to each allegation in Paragraphs 1 through 25.

27.

The allegations in Paragraph 27 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 27.

28.

The allegations in Paragraph 28 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 28.

29. 30.

Thursday Friday denies the allegations in Paragraph 29. The allegations in Paragraph 30 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 30.

31.

The allegation in Paragraph 31 sets forth a legal conclusion that does not require a response. To the extent that a response is required, Thursday Friday denies the allegation in Paragraph 31.

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COUNT TWO (Federal Trademark Infringement – 15 U.S.C. § 1114) 32. In response to the allegations in Paragraph 32, Thursday Friday restates and incorporates herein responses set forth above to each allegation in Paragraphs 1 through 32. 33. The allegation in Paragraph 33 sets forth a legal conclusion that does not require a response. To the extent that a response is required, Thursday Friday denies the allegation in Paragraph 33. 34. 35. Thursday Friday denies the allegations in Paragraph 34. The allegations in Paragraph 35 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 35. 36. The allegation in Paragraph 36 sets forth a legal conclusion that does not require a response. To the extent that a response is required, Thursday Friday denies the allegation in Paragraph 36. COUNT THREE (New York Common Law Trademark Infringement and Unfair Competition) 37. In response to the allegations in Paragraph 37, Thursday Friday restates and incorporates herein responses set forth above to each allegation in Paragraphs 1 through 36. 38. The allegations in Paragraph 38 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 38.

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39. 40.

Thursday Friday denies the allegations in Paragraph 39. The allegations in Paragraph 40 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 40.

41.

The allegation in Paragraph 41 sets forth a legal conclusion that does not require a response. To the extent that a response is required, Thursday Friday denies the allegation in Paragraph 41. COUNT FOUR (Dilution – 15 U.S.C. § 1125(c))

42.

In response to the allegations in Paragraph 42, Thursday Friday restates and incorporates herein responses set forth above to each allegation in Paragraphs 1 through 41.

43.

The allegation in Paragraph 43 sets forth a legal conclusion that does not require a response. To the extent that a response is required, Thursday Friday denies the allegation in Paragraph 43.

44.

The allegations in Paragraph 44 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 44.

45.

The allegations in Paragraph 45 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 45.

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46.

The allegation in Paragraph 46 sets forth a legal conclusion that does not require a response. To the extent that a response is required, Thursday Friday denies the allegation in Paragraph 46. COUNT FIVE (Dilution Under New York General Business Law Section 360-I [sic])

47.

In response to the allegations in Paragraph 47, Thursday Friday restates and incorporates herein responses set forth above to each allegation in Paragraphs 1 through 46.

48.

The allegations in Paragraph 48 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 48.

49.

The allegations in Paragraph 49 set forth legal conclusions that do not require a response. To the extent that a response is required, Thursday Friday denies the allegations in Paragraph 49.

50.

The allegation in Paragraph 50 sets forth a legal conclusion that does not require a response. To the extent that a response is required, Thursday Friday denies the allegation in Paragraph 50. PRAYER FOR RELIEF The Prayer for Relief does not contain allegations of law or fact that require a

response from Thursday Friday. To the extent a response is required, Thursday Friday denies the allegations of the Prayer for Relief. WHEREFORE, Thursday Friday denies that plaintiff is entitled to any relief whatsoever and respectfully requests judgment dismissing the Complaint with prejudice and with such costs and attorneys’ fees as may

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be allowed by law, and any further relief the Court deems appropriate. AFFIRMATIVE DEFENSES Thursday Friday asserts the following affirmative defenses in the alternative when appropriate and without assuming the burden of proof or persuasion as to such defenses that would otherwise rest on plaintiff. Thursday Friday restates and incorporates herein responses set forth above to each allegation in Paragraphs 1 through 50. First Affirmative Defense The Complaint fails to state a claim upon which relief may be granted. Second Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because Thursday Friday did not make use of the Birkin Bag Trademark or the Birkin Closure trademark as a trademark, or as a designation of source, or otherwise, as required by the Lanham Act. Third Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because Thursday Friday did not use photographs of any product made by plaintiff, nor any copyrighted material whatsoever, for the artwork on the sides of the Together Bag. Fourth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because Thursday Friday, if they did make use of the Birkin Bag Trademark or the Birkin closure trademark, intended to create and successfully created a parody of those marks under the Lanham Act, without using any more of the mark than necessary, without using the mark as Thursday Friday’s own trademark, and without creating a likelihood of confusion or dilution of plaintiff’s mark(s). Exhibit 1 to this Answer consists of media coverage from the New York Times

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and Huffington Post that recognize the humorous association between the Hermès Birkin and the Together Bag, referring to the surrealist René Magritte painting “Ceci n’est pas une pipe” in the title of the article (meaning “This is not a Birkin”) and noting the “humor” and “irony” behind the bag, respectively. Fifth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because Thursday Friday, if they did make use of the Birkin Bag Trademark or the Birkin closure trademark, did so in a way that constitutes a fair use of one or both of those trademarks within the meaning of the Lanham Act because the Together Bag does not use any more of the mark than necessary to make that fair use, does not use the mark as Thursday Friday’s own trademark, and does not use the mark in a way that creates a likelihood of confusion with or dilution of plaintiff’s mark(s). Sixth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because Thursday Friday did not intend to confuse, mislead, or deceive the public in any way, but instead to create a parody. Seventh Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because Thursday Friday did not confuse, mislead, or deceive the public in any way. Eighth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because plaintiff has suffered no damage as a result of any action or inaction on the part of Thursday Friday.

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Ninth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the Hermès Birkin contains word trademarks “Hermès Paris” on the Birkin closure and elsewhere, and the Together Bag does not contain either plaintiff’s word trademarks nor any other word trademark. Tenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the presence of word trademarks as part of the Birkin Bag Trademark and the Birkin Closure are the primary means for consumers to identifying the Birkin bag’s source, and because the absence of these word trademarks on any other bag than those made by plaintiff is sufficient to distinguish it as one not made by or affiliated with plaintiff. Eleventh Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because plaintiff’s alleged injuries were not legally or proximately caused by any acts or omissions of Thursday Friday. Twelfth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because there is no likelihood of confusion between the Birkin Bag Trademark, or indeed any aspect of any Birkin bag, and the Together Bag, and because the Together Bag and the Hermès Birkin, with its registered closure, are not at all similar to each other.

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Thirteenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because there is no likelihood of injury or actual injury of any type to plaintiff as a result of any of Thursday Friday’s acts or omissions. Fourteenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the design of the Birkin Bag Trademark is functional. The Chief Executive Officer of Hermès, Robert Chavez, stated in an interview in 2004 that “I think one of the things that makes [the Hermès Birkin] so desirable is that it is very functional.” Fifteenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because any and all of Thursday Friday’s actions alleged by plaintiff were lawful, justified, procompetitive, carried out in furtherance of Thursday Friday’s legitimate business interests, and/or constituted fair business competition, to the extent Thursday Friday and plaintiff compete at all. Sixteenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the design of the Together Bag, and its use as a mark, is original and fanciful, and the photographs on its sides ornamental and not a designator of source. Seventeenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the Birkin Bag Trademark and Birkin closure are not famous enough to merit protection from dilution, and in any event are not famous aside from the registered marks visible on the Hermès Birkin and Birkin closure.

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Eighteenth Affirmative Defense Plaintiff’s claims are barred, in whole or in part, because the Birkin Bag Trademark does not have secondary meaning separate and apart from the word trademarks that appear on it. Defenses Reserved The foregoing affirmative defenses are raised by Thursday Friday without waiver of any other defenses that may come to light during the discovery proceedings in this case or otherwise. Thursday Friday hereby reserves the right to amend or supplement its Answer to assert any other related defenses as they become available. JURY DEMAND Defendant demands a jury trial of all issues so triable. PRAYER FOR RELIEF Defendant prays that this Court dismiss all Counts in the First Amended

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Complaint with prejudice. Dated: Richmond, Virginia April 18, 2011 Respectfully submitted, THE CIMBALO FIRM, P.C. By:____/s/Jeffrey L. Cimbalo__________ Jeffrey L. Cimbalo (JC-6680) THE CIMBALO FIRM, P.C. 1306 W. Main St. Richmond, VA 23220 Tel: (804) 313-6266 jcimbalo@cimbalofirm.com Paul R. Niehaus (PN-3394) S. Gabriel Hayes-Williams (SH- 0075) NIEHAUS LLP 1359 Broadway Suite 2001 New York, NY 10018 Tel: (212) 631-0223 Fax: (212) 624-0223 Attorneys for Defendant Thursday Friday, Inc.

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CERTIFICATE OF SERVICE I, Jeffrey L. Cimbalo, an attorney duly admitted to the bar of this court, and the Principal of the law firm The Cimbalo Firm, P.C., Counsel to Defendant Thursday Friday, Inc., hereby certify that on April 18, 2011, a true and correct copy of the Answer to the First Amended Complaint which has been electronically filed with the Clerk of Court using the CM/ECF system, which automatically sent e-mail notification to counsel of record to Andrew Baum at abaum@foley.com.

Dated: April 18, 2011 Richmond, Virginia /s/ Jeffrey L. Cimbalo Jeffrey L. Cimbalo

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