Last updated March 16, 2008

Answering The Complaint

We are not lawyers nor have we received any significant assistance from any lawyers beyond our appeal to the Tenth District which we won. The information presented here is based upon our experiences in federal court defending and prosecuting claims of trademark infringement and copyright infringement. It is presented to prepare you for what lies ahead should you end up in court. This outline is for those sellers who are thinking about representing themselves, pro se, in a court action. A business cannot represent themselves in federal court but individuals and unincorporated business can.. The court rules and the federal rules are written by lawyers for lawyers. We try to put them into plain English here.

It's been our habit to number all paragraphs in a complaint. It's a lot easier for the answering party to answer by numbered paragraphs. However, that isn't necessary. There are a lot of complaints ol-line. Select the format you like.

When you read their answer you may initially get depressed. This is normal. Sit down, read it again. Begin listing what is not true and what you must combat. After a while you will see all is not lost. Soon you will realize their case is weak.

Usually the opposing side will deny, deny, deny. We've even seen them deny the sun rises in the morning (kidding but close). When they counter-claim, pay close attention to what they say and do not say. This area can give you a clue as the what they are doing.

The lawyer for Alex Grey filed a federal lawsuit alleging copyright infringement but failed to establish in his complaint that his client held a properly registered federal copyright. Before someone can claim copyright infringement in court they must first show the court they have that copyright registered with the U.S. Copyright Office. Failure to do so will result in the complaint being dismissed or the claim disallowed. See also Copyright Registraion.

We mention this as an example of what you need to look for. When Chalk & Vermilion Fine Arts & Sevenarts answered our complaint they did not counter-claim for copyright infringement. In fact, they did not counter-claim at all. Why not? Things like this can be used to predict your opponent's strategy.

Don't accept anything quoted by the other side at face value. Remember, corporate lawyers lie for a living. They will quote court cases improperly or partially because they can. They don't expect you to find out. We have caught several lawyers in case quote lies as well as down-right lies to the court by mis-representation. Check everything out when they cite references.

You must reply to any counter-claims. The easiest thing to do is deny. You must deny each claim specifically, not generally. If they make eight counter-claims, you must deny eight times citing the claim you are denying.

Generally you get to reply. The party filing a complaint or motion gets two filings while the party opposing gets one filing if the opposing party raises new issues. Usually the filing party overlooks the requirement and get two bites at the apple. When you reply, refuting their allegations and denying their counter-claims, you can include anything you've remembered that you forgot to include.

You can also challenge anything they said that is significant to you case. They may not agree that the court has jurisdiction or that it is a federal case, etc. You cannot assert additional legal violations in your reply.