(main body of reply)

 

DOCUMENTS AND THINGS REQUESTED PLAINTFFS are requested to produce the following: REQUEST NO. 1 All DOCUMENTS and things which YOU consulted, referred to, or used in any way, in connection with the preparation of the responses to Defendant's First Set of Interrogatories, and all DOCUMNETS and things YOU identified in such responses. Answer to Document Request No. 1 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks The request is too vague in order for the Plaintiffs to comply. A request has to be specific, not general. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. Since the request is vague and overly broad, Plaintiffs will produce documents upon greater identification. REQUEST NO. 2 Exemplars of all products you have offered for sale, including the BRATZ HAT Answer to Document Request No. 2 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks. This request as worded is not relevant to the issues involved in the complaint. Subject to and without waiving their objections, Plaintiffs respond to this Document Request as follows: The Plaintiffs have offered over five thousand items on eBay since 1998, including but not limited to, hand-made fabric items, collectibles, Nippon porcelain, gasoline generators, furniture, audio tapes, books, cd's, fabric, etc. Plaintiffs do not have examples of many of these. Hand-crafted items are one-of-a-kind and Plaintiffs do not have an inventory that can meet this request. If the Defendant wishes to be more specific and reasonable in its request the Plaintiffs will attempt to comply. REQUEST NO. 3 All DOCUMENTS which RELATE TO or constitute COMMUNICATIONS between PLAINTIFFS and any other PERSON regarding PLAINTFFS' PRODUCTS. Answer to Document Request No. 3 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks. This request as worded is not relevant to the issues involved in the complaint. Subject to and without waiving their objections, Plaintiffs respond to this Document Request as follows: The Plaintiffs have offered over five thousand items on eBay since 1998, including but not limited to, hand-made fabric items, collectibles, Nippon porcelain, gasoline generators, furniture, audio tapes, books, cd's, fabric, etc. If the Defendant wishes to be more specific and reasonable in its request the Plaintiffs will attempt to comply. As worded, this request is unreasonable. REQUEST NO. 4 All DOCUMENTS which RELATE TO PLAINTFFS' auctions posted on eBay.com, including auction number 296833612. Answer to Document Request No. 4 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks nor does it set a reasonable time frame. This request as worded is not relevant to the issues involved in the complaint. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. Since the request is vague and overly broad, Plaintiffs will produce documents upon greater identification. REQUEST NO. 5 All DOCUMENTS which RLEATE TO any litigation in which either of PLAINTIFFS were witnesses or parties. Answer to Document Request No. 5 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks nor does it set a reasonable time frame. This request as worded is not relevant to the issues involved in the complaint. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. Since the request is vague and overly broad, Plaintiffs will produce documents upon greater identification. REQUEST NO. 6 All DOCUMENTS which REFER or RELATE TO Defendant. Answer to Document Request No. 6 Plaintiffs object to this request as being irrelevant, unduly burdensome and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. REQUEST NO. 7 All DOCUMENTS which RELATE TO or constitute Internet postings made by PLAINTFFS. Answer to Document Request No. 7 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks nor does it set a reasonable time frame. This request as worded is not relevant to the issues involved in the complaint. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. Since the request is vague and overly broad, Plaintiffs will produce documents upon greater identification. REQUEST NO. 8 All DCOUMENTS which refer or RELATE TO COMMUNICATIONS from PLAINTFFS' customers or potential customers regarding the quality or nature of PLAINTIFFS PRODUCTS. Answer to Document Request No. 8 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks nor does it set a reasonable time frame. This request as worded is not relevant to the issues involved in the complaint. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. Since the request is vague and overly broad, Plaintiffs will produce documents upon greater identification. REQUEST NO. 9 All DOCUMENTS which refer or RELATE TO complaints or inquiries received by PLAINTIFFS from PLAINTIFFS' customers or potential customers. Answer to Document Request No. 9 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, redundant, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks nor does it set a reasonable time frame. This request as worded is not relevant to the issues involved in the complaint. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. Since the request is vague and overly broad, Plaintiffs will produce documents upon greater identification. REQUEST NO. 10 DOCUMENTS sufficient to show the total number of each product sold by PLAINTIFFS. Answer to Document Request No. 10 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks nor does it set a reasonable time frame. This request as worded is not relevant to the issues involved in the complaint. Since this request is for confidential business information, Plaintiffs will produce such information only after a suitable confidentiality agreement has been ordered by and entered by the Court in this matter. REQUEST NO. 11 DOCUMENTS sufficient to show PLAINTIFFS' revenue earned from the sale of PLAINTIFF'S PRODUCTS. Answer to Document Request No. 11 Plaintiffs object to this request as being irrelevant, unduly burdensome, vague and ambiguous, and not reasonably calculated to lead to the discovery of admissible evidence. Plaintiffs also object to the Request insofar as it does not identify with reasonable particularity the documents and information plaintiff seeks nor does it set a reasonable time frame. This request as worded is not relevant to the issues involved in the complaint. Since this request is for confidential business information, Plaintiffs will produce such information only after a suitable confidentiality agreement has been ordered by and entered by the Court in this matter. REQUEST NO. 12 All DCOUMENTS that RELATE TO or support PLAINTFFS' contention in paragraph 6 of the COMPLAINT that "defendant has actively engaged in threatening and intimidating persons who have attempted to sell the aforementioned items on eBay. These actions include threats of litigation through cease and desist letters as well as terminating eBay auctions selling the items manufactured by the defendant." Answer to Document Request No. 12 Plaintiffs object to this request as being redundant and unnecessary as this information is already in the possession of the Defendant as attachments. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. REQUEST NO. 13 All DCOUMENTS that RELATE TO or support PLAINTFFS' contention in paragraph 11 of the COMPLAINT that "plaintiffs manufacture a wide variety of fabric items from a selection of fabrics lawfully purchased through a variety of national outlets. In the course of business, the plaintiffs also buy and resell various collectibles and other items." Answer to Document Request No. 13 Plaintiffs object to this Request as it is nonsensical, redundant, and already available to the Defendant. From the "definitions" included with the Interrogatories and Document Requests, it is obvious the Defendant has spent much time reviewing the web site of the Plaintiffs and is therefore very familiar with the business activities of the Plaintiffs. The same information is readily available through eBay which, as a VeRO member, Defendant can request from eBay while the Plaintiff cannot. REQUEST NO. 14 All DOCUMENTS that RELATE TO or support PLAINTFFS' contention in paragraph 16 of the COMPLAINT that "the defendant knows, and its counsel knows, or consequently knows, or reasonably should know, that the resale of lawfully acquired product is permitted under copyright law, specifically the First [Sale} Doctrine. The defendant knows, and their counsel knows, or reasonably should know, that under the Lanham Act, the term "authorized" refers to the counterfeiting of a mark or trademarked product and does not apply to lawfully acquired trademarked materials" Answer to Document Request No. 14 Plaintiffs object to this Request as nonsensical, redundant, and already available to the Defendant. The statement is self-explanatory and requires no documentation. REQUEST NO. 15 All DOCUMENTS that RELATE TO or support PLAINTFFS' contention in paragraph 16 of the COMPLAINT that defendant "rel[ies] on the fact people can't fight back because of the potential enormous legal expense." Answer to Document Request No. 15 Plaintiffs object to this Request as nonsensical, redundant, and already available to the Defendant. The statement is self-explanatory and requires no documentation. REQUEST NO. 16 All DOCUMENTS that RELATE TO or support PLAINTIFFS' contention in paragraph 17 of the COMPLAINT that "on or about December 2, 2003, the defendant requested eBay terminate the auction listing by Blueis2cool, falsely alleging to eBay in an affidavit that the article offered in this auction, a fleece hat with a Bratz appliqué on it, was an infringing item." Answer to Document Request No. 16 Plaintiffs object to this Request as nonsensical, redundant, and already available to the Defendant. MGA admitted in ¶17 of its response to the complaint that it ordered the termination of the auction. The "false allegation" is based upon "the defendant knows, and its counsel knows, or consequently knows, or reasonably should know, that the resale of lawfully acquired product is permitted under copyright law, specifically the First [Sale} Doctrine. The defendant knows, and their counsel knows, or reasonably should know, that under the Lanham Act, the term "authorized" refers to the counterfeiting of a mark or trademarked product and does not apply to lawfully acquired trademarked materials". REQUEST NO. 17 All DOCUMENTS that RELATE TO or support PLAINTIFFS' contention in paragraph 18 of the COMPLAINT that "by listing the item on eBay, a contract existed between the plaintiffs and eBay whereby eBay agreed to host the listing for a period of time." Answer to Document Request No. 17 Plaintiffs object to this Request as redundant and already available to the Defendant. See eBay user agreement paragraph 4 and 5.2. Also, when someone bids on an item, before the bid is accepted, the bidder is cautioned that they are entering into a binding contract. This is a standard part of the bidding process. On the eBay site, there are a number of references to binding contracts. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. REQUEST NO. 18 All DOCUMENTS that RELATE TO or support PLAINTIFFS' contention in paragraph 18 of the COMPLAINT that "the defendant reasonably knew contracts were in effect because the defendant had to look at the listing to affirm information used to terminate the auctions." Answer to Document Request No. 18 Plaintiffs object to this Request as nonsensical, redundant, and already available to the Defendant. REQUEST NO. 19 All DOCUMENTS that RELATE TO or support PLAINTIFFS' contention in paragraph 18 of the COMPLAINT that "this action resulted in loss of future revenue and good will to the plaintiffs." Answer to Document Request No. 19 Plaintiffs object to this Request as nonsensical, redundant, and already available to the Defendant. Ebay uses a feedback system to rate buyers and sellers. A cursory inspection of the feedback for the Plaintiffs shows over 5,000 ebay sales since 1998 with a 47% repeat average. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. However, the Plaintiffs know of no documents that meet this description. REQUEST NO. 20 All DOCUMENTS that RELATE TO or support PLAINTIFFS' contention in paragraph 23 of the COMPLAINT that "Defendant failed to exercise reasonable care and competence in communicating said information to eBay. Answer to Document Request No. 20 Plaintiffs object to this Request as nonsensical, redundant, and already available to the Defendant. Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. However, the Plaintiffs know of no documents that meet this description. REQUEST NO. 21 All DOCUMENTS that RELATE TO or support PLAINTIFFS' contention in paragraph 18 of the COMPLAINT that "part of the auction terminations was that eBay sent all bidders an email that stated the plaintiffs had violated the law and infringed upon rights held by defendant. These emails also strongly urged the bidder not to complete the auction by purchasing the items." Answer to Document Request No. 21 Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections. REQUEST NO. 22 All DOCUMENTS that RELATE TO or support PLAINTIFFS' contention in paragraph 31 of the COMPLAINT that "defendant's representative who terminated the auctions was not properly trained to judge whether there was a trademark infringement but merely 'following orders' and lacked the training to handle subsequent inquiries." Answer to Document Request No. 22 Pursuant to Rule 34, the documents Plaintiffs believe will fulfill this request will be made available for inspection and subsequent copying as indicated in Paragraph F of the Preliminary Statement and general Objections.   Karen Dudnikov Michael Meadors 3463 Maskoke Trail P.O. Box 87 Hartsel, Colorado 80449 PRO SE PLAINTIFFS 303-913-4702 303-913-6075     (end of complaint)