Lingo v Lingo Answer

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    YCST01:10278396.1 065887.1003

    IN THE UNITED STATES DISTRICT COURT

    FOR THE DISTRICT OF DELAWARE

    ARCHIBALD LINGO and

    ARCHIES MARKET, INC.,

    Plaintiff,

    v.

    DINAH LINGO, JESSICA LINGO, LINGOBROS., LLC and THE ORIGINALLINGOS MARKET, LLC,

    Defendants.

    )))))))))))))

    C.A. No. 10-624-SLR

    DEFENDANTSANSWERTOFIRST

    AMENDEDCOMPLAINTANDCOUNTERCLAIMS

    Defendants Dinah Lingo, Jessica Lingo, Lingo Bros., LLC and The Original Lingos

    Market, LLC (collectively, Lingo Defendants), by and through their undersigned counsel,

    answer the First Amended Complaint (Complaint) of Plaintiffs, Archibald Lingo and Archies

    Market, Inc. (collectively, Archie Lingo or Plaintiffs) and assert counterclaims as follows:

    NATURE OF THE ACTION

    1. The Lingo Defendants admit that Plaintiffs have filed an action which seeksdamages and injunctive relief under the laws of the United States and the State of Delaware. The

    Lingo Defendants otherwise deny the allegations of paragraph 1 of the Complaint.

    2. The Lingo Defendants are without knowledge or information sufficient to form abelief as to the truth of the allegation that Plaintiffs are in the process of securing space in

    Rehoboth Beach, and therefore deny it. The Lingo Defendants otherwise deny the allegations of

    paragraph 2 of the Complaint.

    Case 1:10-cv-00624-SLR Document 48 Filed 10/15/10 Page 1 of 21 PageID #: 367

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    JURISDICTION AND VENUE

    3. The Lingo Defendants admit that Plaintiffs have asserted claims under the laws ofthe United States and the State of Delaware. The Lingo Defendants otherwise deny the

    allegations of paragraph 3 of the Complaint.

    4. The Lingo Defendants admit that this Court has subject matter jurisdiction overthis case. The Lingo Defendants otherwise deny the allegations of paragraph 4 of the Complaint.

    5. The Lingo Defendants admit that venue is proper in this district. The LingoDefendants otherwise deny the allegations of paragraph 5 of the Complaint.

    THE PARTIES

    6. The Lingo Defendants admit that U.S. Patent and Trademark Office records stateon their face that Archie Lingo is the owner of U.S. Service Mark, Reg. No. 33,553,466. The

    Lingo Defendants otherwise deny the allegations of paragraph 6 of the Complaint.

    7. The Lingo Defendants are without knowledge or information sufficient to form abelief as to the truth of the allegation that Archies Market, Inc. is located at 31034 Edge Wood

    Drive, Lewes, Delaware, and therefore deny it. The Lingo Defendants otherwise deny the

    allegations of paragraph 7 of the Complaint.

    8. The Lingo Defendants admit that Dinah Lingo is the sister of Archie Lingo and aresident of Delaware. The Lingo Defendants further admit that Dinah Lingo purchased the space

    that housed the Lingos Market business owned by Dinah Lingo and Archie Lingos parents and

    that she is using the space to operate a grocery and gourmet food business. The Lingo

    Defendants otherwise deny the allegations of paragraph 8 of the Complaint.

    Case 1:10-cv-00624-SLR Document 48 Filed 10/15/10 Page 2 of 21 PageID #: 368

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    9. The Lingo Defendants admit that Jessica Lingo is a resident of Delaware. TheLingo Defendants otherwise deny the allegations of paragraph 9 of the Complaint.

    10. The Lingo Defendants admit that Lingo Bros., LLC is a Delaware limited liabilitycompany. The Lingo Defendants otherwise deny the allegations of paragraph 10 of the

    Complaint.

    11. The Lingo Defendants admit that The Original Lingos Market, LLC is aDelaware limited liability company. The Lingo Defendants otherwise deny the allegations of

    paragraph 11 of the Complaint.

    FACTUAL BACKGROUND

    12. The Lingo Defendants admit that the history of Lingos Market dates back morethan one hundred years, that William H. and Eleanor Lingo operated Lingos Market for many

    years prior to 1981, and that William H. Lingo died in 1981. The Lingo Defendants otherwise

    deny the allegations of paragraph 12 of the Complaint.

    13. The Lingo Defendants deny the allegations of paragraph 13 of the Complaint.14. The Lingo Defendants deny the allegations of paragraph 14 of the Complaint.15. The Lingo Defendants deny the allegations of paragraph 15 of the Complaint.16. The Lingo Defendants admit that the Lingos Market name is well-known in the

    Rehoboth Beach community. The Lingo Defendants further admit that the market has been the

    subject of newspaper articles and is depicted in a painting by a local artist. The Lingo

    Defendants otherwise deny the allegations of paragraph 16 of the Complaint.

    17. The Lingo Defendants deny the allegations of paragraph 17 of the Complaint.18. The Lingo Defendants deny the allegations of paragraph 18 of the Complaint.19. The Lingo Defendants deny the allegations of paragraph 19 of the Complaint.

    Case 1:10-cv-00624-SLR Document 48 Filed 10/15/10 Page 3 of 21 PageID #: 369

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    20. The Lingo Defendants admit that U.S. Patent and Trademark Office records stateon their face that Archie Lingo is the owner of U.S. Service Mark, Reg. No. 33,553,466. The

    Lingo Defendants further admit that the registration is for retail gourmet grocery store

    services. The Lingo Defendants are without knowledge or information sufficient to form a

    belief as to the truth of the allegation that Exhibit A is a true and correct copy of the registration,

    and therefore deny it. The Lingo Defendants otherwise deny the allegations of paragraph 20 of

    the Complaint.

    21. The Lingo Defendants admit that Plaintiffs did not operate a retail grocery andgourmet food business during the 2010 season. The Lingo Defendants further admit that, upon

    information and belief, Plaintiffs do not currently operate a retail grocery and gourmet food

    business. The Lingo Defendants are without knowledge or information sufficient to form a

    belief as to the truth of the allegation about Plaintiffs intentions for the 2011 tourist season, and

    therefore deny it. The Lingo Defendants otherwise deny the allegations of paragraph 21 of the

    Complaint.

    22. The Lingo Defendants admit that the Lingos Market name is recognizedfavorably among the consuming public in the Rehoboth Beach area. The Lingo Defendants

    otherwise deny the allegations of paragraph 22 of the Complaint.

    23. The Lingo Defendants admit that the Lingos Market name carries intangiblevalue. The Lingo Defendants otherwise deny the allegations of paragraph 23 of the Complaint.

    24. The Lingo Defendants deny the allegations of paragraph 24 of the Complaint.25. The sentence in paragraph 25 concerning secondary meaning states a legal

    conclusion to which no response is required. The Lingo Defendants otherwise deny the

    allegations of paragraph 25 of the Complaint.

    Case 1:10-cv-00624-SLR Document 48 Filed 10/15/10 Page 4 of 21 PageID #: 370

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    26. The Lingo Defendants admit that the Lingos Market name is recognizedamong the consuming public in the Rehoboth Beach area. The Lingo Defendants otherwise deny

    the allegations of paragraph 26 of the Complaint.

    27. The Lingo Defendants deny the allegations of paragraph 27 of the Complaint.28. The Lingo Defendants are without knowledge or information sufficient to form a

    belief as to the truth of the allegation about Plaintiffs use of the Lingos Market name, and

    therefore deny it. The Lingo Defendants otherwise deny the allegations of paragraph 28 of the

    Complaint.

    29.

    The Lingo Defendants admit that Archie Lingo leased the space that housed the

    Lingos Market business, now owned by Dinah Lingo and formerly owned by Dinah Lingos

    parents. The Lingo Defendants further admit that Dinah Lingo purchased the space that housed

    the Lingos Market business, now owned by Dinah Lingo, and formerly owned by her parents.

    The Lingo Defendants otherwise deny the allegations of paragraph 29 of the Complaint.

    30. The Lingo Defendants admit that Dinah Lingo operates a grocery and gourmetfood business under the name The Original Lingos Market, Dinah H. Lingo, Sole Proprietor.

    The Lingo Defendants are without knowledge or information sufficient to form a belief as to the

    truth of the allegation about the photograph attached to the Complaint as Exhibit B, and therefore

    deny it. The Lingo Defendants otherwise deny the allegations of paragraph 30 of the Complaint.

    31. The Lingo Defendants deny the allegations of paragraph 31 of the Complaint.32. The Lingo Defendants admit that Lingo Bros., LLC and The Original Lingos

    Market, Dinah H. Lingo, Sole Proprietor are not associated or affiliated with Plaintiffs or any

    alleged retail grocery and gourmet food business of Plaintiffs. The Lingo Defendants otherwise

    deny the allegations of paragraph 32 of the Complaint.

    Case 1:10-cv-00624-SLR Document 48 Filed 10/15/10 Page 5 of 21 PageID #: 371

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    33. The Lingo Defendants deny the allegations of paragraph 33 of the Complaint.34. The Lingo Defendants are without knowledge or information sufficient to form a

    belief as to the truth of the allegation about invoices and account numbers assigned to Plaintiffs

    alleged business, and therefore deny it. The Lingo D