Case 2:13-cv-03406-DMG-JCG Document 62 Filed 09/03/13 Page 1 of 102 Page ID #:1349 1 Patricia L. Glaser, State Bar No. 55668 G. Jill Basinger, State Bar No. 195739 2 David Sergenian, State Bar No. 230174 3 GLASER WEIL FINK JACOBS HOWARD AVCHEN & SHAPIRO LLP 4 10250 Constellation Boulevard, 19th Floor 5 Los Angeles, CA 90067 Telephone: (310) 553-3000 6 Facsimile: (310) 556-2920 7 Attorneys for Defendants SWEETPEA ENTERTAINMENT, INC. 8 and SWEETPEA B.V.I. LTD. 9 10 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA 11 WESTERN DIVISION 12 HASBRO, INC., and WIZARDS OF CASE NO. 13-CV-03406-DMG (JCGx) 13 THE COAST, LLC, 14 Hon. Dolly M. Gee Plaintiffs, 15 DEFENDANTS’ ANSWER AND 16 v. AFFIRMATIVE DEFENSES; AND 17 SWEETPEA ENTERTAINMENT, SWEETPEA B.V.I. LTD’S 18 INC., and SWEETPEA B.V.I. LTD, COUNTERCLAIMS FOR: 19 Defendants. (1) BREACH OF CONTRACT; (2) COPYRIGHT INFRINGEMENT; 20 Deadline.com(3) FALSE DESIGNATION OF 21 ORIGIN; SWEETPEA B.V.I. LTD, (4) TRADEMARK DILUTION; AND 22 (5) DECLARATORY RELIEF Counter-Claimant, 23 DEMAND FOR JURY TRIAL 24 v. 25 Complaint Filed: May 13, 2013 HASBRO, INC., and WIZARDS OF 26 THE COAST, LLC, 27 Counter-Defendants. 28 ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS 823542 Case 2:13-cv-03406-DMG-JCG Document 62 Filed 09/03/13 Page 2 of 102 Page ID #:1350 1 Defendants Sweetpea Entertainment, Inc. (“SEI”) and Sweetpea B.V.I. Ltd. 2 (“Sweetpea”) (collectively, “Defendants”), by and through their undersigned counsel, 3 hereby submit their Answer and Affirmative Defenses to Plaintiffs Hasbro, Inc.’s 4 (“Hasbro”) and Wizards of the Coast, LLC’s (“Wizards”) (collectively, “Plaintiffs”) 5 Complaint for Copyright Infringement, Trademark Infringement, False Designation of 6 Origin, Trademark Dilution and Declaratory Relief (the “Complaint”) as follows: 7 JURISDICTION AND VENUE 8 1. Paragraph 1 states a legal conclusion which Defendants are not required 9 to admit or deny; to the extent a response is required Defendants admit that the 10 Complaint purports to state causes of action arising under 28 U.S.C. §§ 1331, 1338(a) 11 and 2201 and 15 U.S.C. § 1121(a). 12 2. Defendants admit that personal jurisdiction over Sweetpea is proper 13 solely by reason of Sweetpea’s consent for the purposes of this suit and venue is 14 proper as to Sweetpea on the same basis. Defendants deny that Sweetpea transacts 15 substantial business in Los Angeles, California. Defendants admit that SEI transacts 16 business in Los Angeles, California. Defendants deny the remaining allegations of 17 paragraph 2. 18 NATURE OF THE ACTION 19 3. Defendants admit that the Complaint purports to state causes of action 20 for copyright andDeadline.com trademark infringement, and that Plaintiffs seek declaratory and 21 other relief. Defendants deny the remaining allegations of paragraph 3. 22 4. Defendants are without knowledge or information sufficient to form a 23 belief as to the truth or falsity of Hasbro’s statement as to when Hasbro purported to 24 learn information regarding Sweetpea’s plans to produce a Dungeons & Dragons 25 movie and on that basis deny them. Defendants admit that Sweetpea plans to use the 26 “Dungeon and Dragons” trademark in connection with its upcoming Dungeons & 27 Dragons theatrical motion picture. Defendants are without knowledge or information 28 sufficient to form a belief as to the truth or falsity of the allegation that the Chainmail 1 ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS 823542 Case 2:13-cv-03406-DMG-JCG Document 62 Filed 09/03/13 Page 3 of 102 Page ID #:1351 1 script is based upon elements from the Property. The allegation that the Property 2 contains protected elements is a legal conclusion that does not require a response. 3 Sweetpea admits that it has been working with Warner Bros to reach an agreement in 4 principle to produce a Dungeons & Dragons theatrical motion picture with a yet-to- 5 be-determined entity. Defendants admit that Sweetpea has stated that it has the right 6 to produce and exploit and to license to others the right to produce and exploit a 7 theatrical motion picture based on the Property. Defendants deny the remaining 8 allegations of paragraph 4. 9 5. Sweetpea admits that its rights in the Property are based on the 10 Agreement as amended by the First and Second Amendments. Sweetpea admits that 11 the documents attached as Exhibits A, B and C are true and correct copies of the 12 Agreement, the First Amendment and the Second Amendment, respectively. 1 13 6. Defendants admit that the Agreement granted Sweetpea the right to 14 make one live-action theatrical motion picture based on the Property. Defendants 15 admit that Sweetpea exercised that right, inter alia, by producing the first Dungeons 16 & Dragons movie, released in U.S. theaters on December 8, 2000 (the “Picture”). 17 Defendants admit that the Agreement granted Sweetpea the right to make one or 18 more sequels, prequels or remakes. The allegation that the Sequel Rights and 19 Television Rights are separate and independent is a legal conclusion that does not 20 require a response.Deadline.com Defendants deny the remaining allegations of paragraph 6. 21 7. Defendants deny the allegations of paragraph 7. 22 8. Defendants admit that the selected language from the Agreement is 23 accurately quoted. Defendants deny the remaining allegations of paragraph 8. 24 9. Defendants admit that a motion picture titled Dungeons & Dragons: 25 Wrath of the Dragon God aired in the United States on the Syfy Channel on October 26 8, 2005. Defendants admit that a motion picture titled Dungeons & Dragons: The 27 1 28 As used herein, the term “Agreement” refers to the Agreement as amended by the First and Second Amendments. 2 ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS 823542 Case 2:13-cv-03406-DMG-JCG Document 62 Filed 09/03/13 Page 4 of 102 Page ID #:1352 1 Book of Vile Darkness aired in the United States on the Syfy Channel on November 2 24, 2005. Defendants deny the remaining allegations of paragraph 9. 3 10. Defendants deny the allegations of paragraph 10. 4 11. Defendants deny the allegations of paragraph 11. 5 12. Defendants deny the allegations of paragraph 12. 6 13. Defendants deny the allegations of paragraph 13. 7 14. Defendants deny the allegations of paragraph 14. 8 PARTIES 9 15. Defendants are without knowledge or information sufficient to form a 10 belief as to the truth or falsity of the allegations in paragraph 15 and on that basis 11 deny them. 12 16. Defendants are without knowledge or information sufficient to form a 13 belief as to the truth or falsity of the allegations in paragraph 16 and on that basis 14 deny them. 15 17. Defendants admit that Defendant SEI is a corporation organized under 16 the laws of the State of Delaware. Defendants deny the remaining allegations of 17 paragraph 17. 18 18. Defendants admit that Sweetpea is a corporation organized under the 19 laws of the British Virgin Islands. Defendants admit that Sweetpea is the successor- 20 in-interest to SweetpeaDeadline.com Entertainment Corporation (“SEC”) with respect to the 21 Agreement. Defendants deny the remaining allegations of paragraph 18. 22 FACTS 23 19. Defendants deny that the Dungeons & Dragons game contains the 24 character classes “warriors,” “wizards,” or “healers.” Defendants admit the 25 remaining allegations of paragraph 19. 26 20. Defendants admit the allegations of paragraph 20. 27 21. Defendants deny the allegations of paragraph 21. 28 3 ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS 823542 Case 2:13-cv-03406-DMG-JCG Document 62 Filed 09/03/13 Page 5 of 102 Page ID #:1353 1 22. Defendants are without knowledge or information sufficient to form a 2 belief as to the truth or falsity of the allegations that Hasbro owns the worldwide 3 trademark rights in the name Dungeons & Dragons with respect to products and 4 services unrelated to television programs and motion pictures, and on that basis deny 5 them. Defendants deny the remaining allegations in paragraph 22. 6 23. Defendants are without knowledge or information sufficient to form a 7 belief as to the truth or falsity of the allegations in paragraph 23 and on that basis 8 deny them. 9 24. Defendants admit the allegations of paragraph 24. 10 25. Defendants admit the allegations of paragraph 25. 11 26. Defendants admit the allegations of paragraph 26. 12 27. Defendants admit the allegations of paragraph 27. 13 28. Defendants admit the allegations of paragraph 28. 14 29. Defendants admit the allegations of paragraph 29. 15 30. Defendants admit the allegations of paragraph 30. 16 31. Defendants admit the allegations of paragraph 31. 17 32. Defendants admit the allegations of paragraph 32. 18 33. Defendants admit the allegations of paragraph 33. 19 34. Defendants admit that the selected language from the Agreement is 20 accurately quoted.Deadline.com Defendants deny the remaining allegations of paragraph 34. 21 35. Defendants admit that the selected language from the Agreement is 22 accurately quoted. Defendants deny the remaining allegations of paragraph 35. 23 36. Defendants admit that the selected language from the Agreement is 24 accurately quoted. Defendants deny the remaining allegations of paragraph 36. 25 37. Defendants admit the allegations of paragraph 37. 26 38. Defendants admit the allegations of paragraph 38. 27 39. Defendants admit the allegations of paragraph 39. 28 40. Defendants admit the allegations of paragraph 40. 4 ANSWER, AFFIRMATIVE DEFENSES AND COUNTERCLAIMS 823542 Case 2:13-cv-03406-DMG-JCG Document 62 Filed 09/03/13 Page 6 of 102 Page ID #:1354 1 41.