UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(PHILADELPHIA)
Strick Corporation,
plaintiff
v.
James B. Strickland,
defendant
Civil action no. 00-CV-3343
JUDGE BRUCE W. KAUFFMAN
ANSWER TO PLAINTIFF'S MOTION AND MEMORANDUM TO DISMISS COUNTS
Plaintiff Strick Corporation ("SC") has filed a Plaintiff's Motion and Memorandum to Dismiss Counts, court docket no. 20.
Defendant James B. Strickland ("Mr. Strickland") agrees that the Motion would promote judicial efficiency, and does not oppose the motion, subject to the following comments.
The proposed Order. The proposed Order attached to SC's Motion appears to contain a typographical error -- "VI," referring to a "common law trademark infringement" claim, should apparently be "VII".
The consequences of a grant of SC's Motion. SC states at page 2 of its Motion that dismissal of its claims would render Defendant's Motion for Summary Judgment (court docket no. 15) moot as to trademark infringement, volations of the Anti-Cybersquatting Act and unjust enrichment. This is incorrect. Mr. Strickland's Motion seeks, among other things, declarations that he has not committed trademark infringement, has not violated the Anti-Cybersquatting Act, and has not unjustly enriched himself. Dismissal of claims against Mr. Strickland, even with prejudice, does not settle the question as to whether Mr. Strickland did not do these things. This question presents an actual case and controversy for this Court because of Mr. Strickland's defamation counterclaim against SC, arising out of SC's non-privileged statement in 1996 to third party NSI that Mr. Strickland was an infringer. SC's only defense to this defamation claim would be to show that SC's statement about Mr. Strickland was true, a defense apparently conceded by SC's present Motion.
While the proposed Order attached to SC's Motion does not suffice to moot or to dispose of any of Mr. Strickland's Motion, it does appear that a properly worded Order would dispose of portions of Mr. Strickland's Motion, which would likewise promote judicial efficiency. A proposed Order is attached.
Dated December 5, 2000.
<signed>
Carl Oppedahl
Admitted pro hac vice on October 12, 2000
Oppedahl & Larson LLP
P O Box 5088
Dillon, CO 80435-5088
Telephone 970-468-6600
Email: oppedahl@patents.com
Certificate of Service
I hereby certify that this paper has been served upon plaintiff, Strick Corp., by its attorneys:
Arthur H. Seidel, Esq.
Seidel, Gonda, Lavorgna & Monaco, P.C.
Two Penn Center Plaza #1800
Philadelphia, PA 19102-1786
by Federal Express, airbill number 790415931494 upon Mr. Seidel, this 6th day of December, 2000, and by fax at 215-568-5549 this 6th day of December, 2000.
<signed>
UNITED STATES DISTRICT COURT FOR THE
EASTERN DISTRICT OF PENNSYLVANIA
(PHILADELPHIA)
Strick Corporation,
plaintiff
Civil action no. 00-CV-3343
v.
JUDGE BRUCE W. KAUFFMAN
James B. Strickland,
defendant
Upon consideration of Plaintiff Strick Corporation's Motion and Memorandum to Dismiss (court docket no. 20), and upon consideration of the Answer of Defendant James B. Strickland, it is hereby ORDERED:
that Counts I (false designation of origin, Lanham Act section 43(a)), III (trademark infringement, Lanham Act section 32), IV (Anticybersquatting Consumer Protection Act, Lanham Act section 43(d), VII (common-law trademark infringement), and VIII (unjust enrichment) of Strick Corporation's Amended Complaint are dismissed with prejudice;
that Count V is dismissed with prejudice insofar as it relates to trademark infringement; and
that James B. Strickland's Motion for Summary Judgment and to Exclude (court docket no. 15) is granted in part, namely:
it is adjudged that Mr. Strickland has not engaged in and is not liable for trademark infringement, whether under Lanham Act Section 32 or 43(a), under state trademark law, or under common-law trademark law;
it is adjudged that Mr. Strickland has not violated and is not liable under the Anticybersquatting Consumer Protection Act, Lanham Act Section 43(d);
it is adjudged that Mr. Strickland has not engaged in and is not liable for unjust enrichment.
The portions of James B. Strickland's Motion for Summary Judgment and to Exclude not granted by this Order shall proceed with briefing consistent with this Court's order of November 29, 2000, court docket no. 16.
Ordered this __________ day of December, 2000.
By the Court:
______________________________
Judge Bruce W. Kauffman
United States District Judge