IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO

        KAREN DUDNIKOV, a/k/a TABBERONE,
        MICHAEL MEADORS,
        Pro Se Plaintiffs,

v.

        Major League Baseball Properties, a New York Corporation
        Defendant.

ANSWER TO COMPLAINT AND COUNTERCLAIMS

        1. In responding to the entirety of the Complaint, MLBP avers that Plaintiffs' Complaint is ambiguous, but appears to assert various state law tort claims to which MLBP has defenses under Federal and State law. In responding to each and every paragraph of the Complaint, MLBP incorporates this averment.

        2. As to paragraph 1 of the Complaint, MLBP admits that venue is proper. Except as so admitted, MLBP denies the allegations contained in paragraph 1 of the Complaint.

        3. MLBP is without sufficient knowledge or information to form a belief as to the truth of the allegations contained in the following paragraphs of Plaintiffs' Complaint, and therefore denies the same: 2-3,11,13,27,39,56,66, and 85.

        4. In response to paragraph 4 of the Complaint, MLBP avers that is it s New York corporation. Except as so averred, MLBP admits the allegations contained in paragraph 4 of the Complaint.

        5. In response to paragraph 5 of the Complaint, MLBP admits that it licensed certain intellectual property owned by MLBP, certain of the Major League Baseball Clubs, and other Major League Baseball entities for use in the manufacture and sale of certain fabric. Except as so admitted, MLBP denies all further and remaining allegations contained in paragraph 5 of the Complaint.

        6. In response to paragraphs 6 and 15 of the Complaint, MLBP avers that pursuant to its contractual and statutory duties it reasonably and in good faith undertakes efforts to protect the intellectual property rights of MLBP, the Major League Baseball Clubs, and other Major League Baseball entities. Except as so averred, MLBP denies all further and remaining allegations contained in paragraphs 6 and 15 of the Complaint.

        7. MLBP denies each allegation contained in the following paragraphs of Plaintiffs' Complaint: 7, 10,16,21-26,30-32,71,72,79,83,87, and 88.

        8. MLBP admits the allegations contained in the following paragraphs of Plaintiffs' Complaint: 8 and 35.

        9. As to paragraph 9 of the Complaint, MLBP admits that it made certain statements as set forth in Attachment No. 2 to Plaintiffs' Complaint and avers that such statements speak for themselves. Except as so admitted and averred, MLBP denies all further and remaining allegations contained in paragraph 9 of the Complaint.

        10. In response to paragraph 12 of the Complaint, MLBP admits that Tabberone has in at least three auctions offered for sale on the eBay Internet auction website fabric tissue box covers that contain protected trademarks of certain Major League Baseball Clubs. Except as so admitted, MLBP is without sufficient knowledge or information to form a belief as to the truth of the remaining allegations of this paragraph and therefore denies the same.

        11. As to paragraph 14 of the Complaint, MLBP admits that MLBP is the owner, licensor, and/or licensing agent of certain intellectual property. Except as so admitted, MLBP denies all further and remaining allegations contained in paragraph 14 of the Complaint.

        12. As to paragraph 17 of the Complaint, MLBP avers that on March 31, 2003, MLPB requested that eBay terminate three auction listings by Tabberone. Except as so averred, MLBP denies all further and remaining allegations contained in paragraph 17 of the Complaint

        13. As to paragraph 18 of the Complaint, MLBP is without sufficient knowledge or information to form a belief as to the truth of the allegation that Tabberone lost revenue as a result of the Notice of Infringement dated March 31, 2003, and therefore denies the same. MLBP denies all further and remaining allegations contained in paragraph 18 of the Complaint.

        14. As to paragraph 19 of the Complaint, MLBP admits that it sent a Notice of Infringement to eBay on March 31, 2003, which stated that MLBP had a good faith belief that certain items offered for sale by Plaintiffs infringed on MLBP's rights according to State, Federal or United States law. Except as so admitted, MLBP denies all further and remaining allegations contained in paragraph 19 of the Complaint.

        15. As to paragraph 20 of the Complaint, MLBP admits that in sending the Notice of Infringement, it was acting reasonably and in good faith within its normal course of business to protect the intellectual property rights of MLBP, certain of the Major League Baseball Clubs, and other Major League Baseball entities. Except as so admitted, MLBP denies all further and remaining allegations contained in paragraph 20 of the Complaint.

        16. As to paragraph 28 of the Complaint, MLBP admits that the Notice of Infringement was made with the intent that eBay remove or disable access to the items claimed to be infringing. Except as so admitted, MLBP denies all further and remaining allegations contained in paragraph 28 of the Complaint.

        17. As to paragraph 29 of the Complaint, MLBP admits that eBay terminated the auctions for the items identified in the Notice of Infringement. Except as so admitted, MLBP is without sufficient knowledge or information to form a belief as to the truth of all further and remaining allegations contained in paragraph 29 of the Complaint and therefore denies the same.

        18. As to paragraph 33 of the Complaint, MLBP admits that it made certain statements as set forth in attachment NO. 4 to the Complaint and avers that such statements speak for themselves. Except as so admitted and averred, MLBP denies all further and remaining allegations contained in paragraph 33 of the Complaint.

        19. As to paragraph 34 of the Complaint, MLBP is without sufficient knowledge or information to form a belief as to the truth of the allegations regarding the motivation and conduct of Plaintiffs, and therefore denies the same. MLBP denies all further and remaining allegations contained in paragraph 34 of the Complaint.

        20. The following paragraphs of Plaintiffs' Complaint contain arguments and legal conclusions and do not set forth a "short and plain statement of the claim showing that the pleader is entitled to relief," as required by Fed. R. Civ.P.8(a) and thus no response is required by MLBP: 36,40-45,58-65,67,68,73-76,80-81,84, and 89-91. To the extent that a response is required to these paragraphs, MLBP denies all allegations contained in these paragraphs.

        21. As to paragraph 37 of the Complaint, MLBP admits that from time-to-time it licenses certain intellectual property owned by MLBP, certain of the Major League Baseball Clubs, and other Major League Baseball entities for use in the manufacture and sale of certain fabric. Except as so admitted, MLBP denies all further and remaining allegations contained in paragraph 37 of the Complaint.

        22. MLBP is without sufficient knowledge or information to form a belief as to the truth of the allegation contained in paragraph 38 of Plaintiffs' Complaint-that Plaintiffs purchase fabric from a retail outlet-and therefore denies the same. The remainder of paragraph 38 of the Complaint contains arguments and legal conclusions and do not set forth a "short and plain statement of the claim showing that the pleader is entitled to relief," as required by Fed. R. Civ.P.8(a) and thus no response is required by MLBP. To the extent that a response is required to paragraph 38 of the Complaint, MLBP denies all further and remaining allegations contained in this paragraph.

        23. As to paragraph 57 of the Complaint, MLBP avers that Attachment No. 6 to the Complaint does not relate to Plaintiffs and speaks for itself. Except as so averred, paragraph 57 of the Complaint does not contain any factual averments to which an admission or denial seems appropriate. To the extent such a response may be required, MLBP denies the allegations contained in paragraph 57 of the complaint.

        24. As to paragraph 69 of the Complaint, MLBP is without sufficient knowledge or information to form a belief as to the truth of the allegations regarding the acquisition of fabric by Plaintiffs, and therefore denies the same. The first two sentences of paragraph 69 contain arguments and legal conclusions and do not set forth a "short and plain statement of the claim showing that the pleader is entitled to relief," as required by Fed. R. Civ.P.8(a) and thus no response is required by MLBP. As to the other allegations of this paragraph and to the extent that a response otherwise is required to paragraph 69 of the Complaint, MLBP denies all further and remaining allegations contained in this paragraph.

        25. As to paragraph 70 of the Complaint, MLBP denies the allegation that Plaintiffs liberally use disclaimers in their auction listings. The remainder of paragraph 70 of the Complaint contains arguments and legal conclusions and do not set forth a "short and plain statement of the claim showing that the pleader is entitled to relief," as required by Fed. R. Civ.P.8(a) and thus no response is required by MLBP. To the extent that a response is required to paragraph 70 of the Complaint, MLBP denies all further and remaining allegations contained in this paragraph.

        26. As to paragraph 77 of the Complaint, MLBP avers that the displayed titles of "Atlanta Braves Fabric Tissue Box Cover," "Arizona Diamondbacks Fabric Tissue Box Cover" and "New York Yankees Tissue Box Cover" improperly imply affiliation with, association with, sponsorship of and/or endorsement by the identified Major League Baseball Clubs. Except as so averred, MLBP denies the allegations contained in paragraph 77 of the Complaint.

        27. As to paragraph 77 of the Complaint, MLBP admits that Tabberone has used photographs of infringing fabric tissue box covers depicting intellectual property owned by MLBP, certain of the Major League Baseball Clubs and other Major League Baseball entities in at least three auctions that Tabberone posted on eBay's Internet auction website. Except as so admitted, MLBP denies the allegations contained in this paragraph.

        28. As to paragraph 82 of the Complaint, MLBP admits that it receives royalties in connection with the licensing of certain intellectual property owned by MLBP, certain of the Major League Baseball Clubs and other Major League Baseball entities. Except as so admitted, the remainder of paragraph 82 of the Complaint contains arguments and legal conclusions and do not set forth a "short and plain statement of the claim showing that the pleader is entitled to relief," as required by Fed. R. Civ.P.8(a) and thus no response is required by MLBP. To the extent that a response is required to paragraph 82 of the Complaint, MLBP denies all further and remaining allegations contained in this paragraph.

        29. As to paragraph 82 of the Complaint, MLBP avers that Ebay provides a Verified Rights Owner'' Program called the VeRo Program. Except as so averred, MLBP denies all further and remaining allegations contained in paragraph 86 of the Complaint.

        30. MLBP denies each allegation and claim contained in the Conclusion to Plaintiffs' Complaint.

DEFENSES

        32. Plaintiff's Complaint fails to state a claim upon which relief can be granted.

        33. Plaintiff's Claims are barred by the doctrines of waiver, estoppel, and acquiescence.

        34. Plaintiffs are barred from recovery by the doctrine of unclean hands.

        35. Even if MLBP interfered with Plaintiffs' contractual or business relations, which MLBP specifically denies, MLBP's actions were justified or privileged.

        36. Some or all of Plaintiffs' claims are preempted by Federal law.

        37. The Court lacks subject matter jurisdiction over Plaintiffs' claims.

        38. Even if Plaintiffs incurred damages, which MLBP specifically denies, recovery in this action, if any, should be reduced or barred by the failure to mitigate damages.

        39. MLBP is entitled to an award of its attorneys' fees incurred in connection with its defense of this action.

        40. Plaintiff Michael Meadors is not a real party in interest and lacks standing to assert any of the claims in the Complaint.

        41. While MLBP believes that Plaintiffs do not properly assert any claims for declaratory judgment under Federal law, any claims which might be deemed to be asserted are not ripe.

        42. Plaintiffs have no standing to assert claims other than those related to their own conduct, products, and dealings with MLBP.

        43. MLBP reserves the right to raise additionally affirmation defenses based upon further discovery and investigation.

        WHEREFORE, MLBP respectfully requests that Plaintiff's Complaint by dismissed with prejudice, that MLBP be awarded its attorneys' fees and costs incurred in the defense of this action, and any such other and further relief as the Court deems proper.

COUNTERCLAIMS

The Parties

        3. On information and belief, Karen Dudnikov, a/k/a Tabberone is a Colorado residents who runs an unincorporated home-bases business that primarily does business on the Internet. See Complaint, ¶2. On information and belief, Karen Dudnikov resides at 3463 Maskoke Trail, P.O. Box 87, Hartsel, Colorado, 80449.

Jurisdiction and Venue

        5. Venue is proper in this district pursuant to 28 U.S.C §1391 because Tabberone resides and does business in Colorado. Further, a substantial part of the events giving rise to the counterclaims alleged herein occurred in this judicial district.

Background

        7. The fame of the YANKEES Trademarks has historically resulted from the fame of the YANKEES baseball club, one of the most popular MAJOR LEAGUE BASEBALL clubs, and the popularity of YANKEES, branded products among sports fans and the general public alike.

        8. Starting in the early to mid 1900's, and long prior to any use by Plaintiff and Counterclaim-Defendant Tabberone, the BRAVES, itself or through its predecessors-in-interest, ahs adopted, used and has been the owner of various trademarks comprising or containing the mark BRAVES (including, but not limited to BRAVES, ATLANTA BRAVES, BRAVES(Stylized Script), and the BRAVES and tomahawk design logo), and various A (Stylized) marks, (collectively, the "BRAVES Trademarks") to identify the services of its baseball club and a wide variety of goods and services, including, but not limited to, clothing, baseball caps and other headwear, toys, sporting goods, novelty items, jewelry, leather goods, bags, paper goods and printed matter, pens, pencils, glassware, household goods, collectibles, decals, and pillows, throws and other home décor items.

        9. The fame of the BRAVES Trademarks has historically resulted from the fame of the BRAVES baseball club, one of the most popular MAJOR LEAGUE BASEBALL clubs, and the popularity of BRAVES, branded products among sports fans and the general public alike.

        10. Starting at least as early as 1995, and long prior to any use by Plaintiff and Counterclaim-Defendant Tabberone, the DIAMONDBACKS, itself or through its predecessors-in-interest, has adopted, used and has been the owner of various trademarks comprising or containing the mark DIAMONDBACKS (including, but not limited to DIAMONDBACKS, ARIZONA DIAMONDBACKS, DIAMONDBACKS (Stylized), A DIAMONDBACKS logo), and the letter marks A (Stylized) marks, and D (Stylized) (collectively, the "DIAMONDBACKS Trademarks") to identify the services of its baseball club and a wide variety of goods and services, including, but not limited to, clothing, baseball caps and other headwear, toys, sporting goods, novelty items, jewelry, leather goods, bags, paper goods and printed matter, pens, pencils, glassware, household goods, collectibles, decals, and pillows, throws and other home décor items.

        11. The fame of the DIAMONDBACK Trademarks has historically resulted from the fame of the DIAMONDBACKS baseball club, and the popularity of DIAMONDBACKS branded products among sport fans and the general public alike.

        12. The YANKEES, BRAVES and DIAMONDBACKS (collectively, the "MLB Clubs") have won many championships, including WORLD SERIES, LEAGUE CHAMPIONSHIP SERIES and DIVISION SERIES titles. For many years, the MLB clubs' games have been frequently broadcast throughout the United States and viewed by millions of people on network, cable and/or on pay-TV telecasts using the YANKEES Trademarks, BRAVES Trademarks and DIAMONDBACKS Trademarks (collectively, the "MLB Club Trademarks") and featuring players and other personnel of the MLB club wearing uniforms that prominently display trademarks identifying the MLB clubs, including the MLB Club Trademarks. Such games and broadcasts displaying or referencing the MLB Club Trademarks have received extensive coverage in the press and media, including in print, radio, television and on the Internet.

        13. Defendant and Counterclaim-Plaintiff MLBP is a licensee of and licensing agent of the MLB Clubs in connection with intellectual property of the MLB Clubs, including the MLB Club Trademarks, and through its licensing program, MLBP has licensed hundred of entities the rights to use the MLB Club Trademarks on or in connection with a wide variety of goods and services, such as merchandise of various kinds, including, but not limited to, a wide variety of clothing, baseball caps and other headwear, toys, sporting goods, novelty items, jewelry, leather goods, bags, paper goods and printed matter, pens, pencils, glassware, household goods, collectibles, decals, and pillows, throws and other home décor items. Such MLB club branded products have become part of American culture and are purchased not only by sports fans but by general consumers alike. Sales of such MLB Club branded products sold throughout the United States represent sales in excess of a billion dollars in the marketplace.

        14. Defendant and Counterclaim-Plaintiff MLBP, and licensees and sponsors of MLBP and the MLB Clubs have extensively promoted and advertised goods and services bearing the MLB Club Trademarks and have sold such goods and offered such services in commerce throughout the United States, including on the Internet.

        15. As a result of the extensive sales and promotions of licensed goods and services bearing the MLB Club Trademarks, the MLBP and the MLB Clubs have built up a reputation for excellence and high quality and enormous goodwill in the MLB club Trademarks. Through long use and extensive promotion, the MLB club Trademarks have become famous among the relevant consuming public, and, indeed, are among the most famous marks in the United States.

        16. As a result of the extensive use of the MLB Club Trademarks on or in connection with merchandise and the MLB Clubs' baseball games and services sold and/or rendered in the United States, the MLB Club Trademarks have, long prior to any use made by Plaintiff and Counterclaim-Defendant Tabberone, functioned as unique identifiers, and synonyms for the MLB Clubs in the publics mind.

        17. The YANKEES Club owns numerous state and federal applications and registrations for its YANKEES Trademarks. The following is a list of certain federal trademark registrations on the Principal Register of the United States Patent and Trademark Office for the YANKEES Trademarks that are owned by the YANKEES Club which are set forth in more detail in Exhibit A attached hereto: Registration No. 1,898,998 for "NY"; Registration Nos. 2,651,320, 1,182,757, 1,564,580, 1,577,279 and 1,076,665 for "NY" (Stylized)"; Registration No. 1,671,371 for YANKEES, Registration No. 1,161,865 for YANKEES (Stylized); Registration Nos. 2,575,644, 1,542,501, 1,032,767 for YANKEES and Design Logo; and Registration No. 1,550,798 for NEW YORK YANKEES and Design (the "YANKEES Registered Trademarks").

        18. The above Registration Nos. 1,032,767, 1,076,665, 1,165,865, 1,182,757, 1,542,501, 1,550,798, 1,564,580, 1,577,279, 1,671,731, and 1,898,998 are valid and in effect and have become incontestable.

        19. The BRAVES Club owns numerous state and federal applications and registrations for its BRAVES Trademarks. The following is a list of certain federal trademark registrations on the Principal Register of the United States Patent and Trademark Office for the BRAVES Trademarks that are owned by the BRAVES Club which are set forth in more detail in Exhibit B attached hereto: Registration No. 2,542,804, 2,657,980, 2,573,347, 1,560,470 and 1,253,034 for "A" (Stylized); Registration Nos. 845,032, 829,308 and 1,562,115 for BRAVES (Stylized); Registration Nos. 2,671,045, 829,309, and 1,596,052 for BRAVES and Design logo (the BRAVES Registered Trademarks").

        20. The above Registration Nos. 845,032, 829,308, 829,309, 1,560,470, 1,253,034, 1,596,052, 1,562,115 are valid and in effect and have become incontestable.

        21. The DIAMONDBACKS Club owns a number of state and Federal applications and registrations for its DIAMONDBACKS Trademarks. The following is a list of certain federal trademark applications and registrations on the Principal Register of the United States Patent and Trademark Office, and Arizona state trademark registrations, for the DIAMONDBACKS Trademarks that are owned by the DIAMONDBACKS Club which are set forth in more detail in Exhibits C and D attached hereto: Registration Nos. 2,243,911 and 2,408,953 for "A and Design" and Registration Nos. 2,718,516 and 2,577,984 for ARIZONA DIAMONDBACKS (the DIAMONDBACKS Registered Trademarks"); Application No. 76/350,716 for ARIZONA DIAMONDBACKS; Application No. 76/350,673 for A DIAMONDBACKS and Design; Application No. 76/350,672 for D and Design; Application No. 76/350,674 for a and Design ( the "DIAMONDBACKS Applications"); Arizona State Registration Nos. 45422 and 45420 for DIAMONDBACKS; Arizona State Registration Nos. 45424 and 45374 for "D and Design", Arizona State Registration Nos. 45423 and 45376 for "A DIAMONDBACKS and Design", and Arizona State Registration No. 45377 for "ARIZONA DIAMONDBACKS and Design" (the "DIAMONDBACKS Arizona Registrations"). The YANKEES Registered Trademarks, BRAVES, Registered Trademarks and DIAMONDBACKS Registered Trademarks are herein collectively referred to as the 'MLB Club Registered Trademarks".

        22. As part of its extensive licensing program involving the trademarks of the Major League Baseball Entities, Defendant and Counterclaim-Plaintiff MLBP has licensed the MLB Club Trademarks for use in the manufacture and sale of fabric (the "MLB Licensed Fabric"). Said MLB Licensed Fabric contains a statement prominently printed on the selvage of the fabric stating that the fabric is "…FOR INDIVIDUAL CONSUMPTION ONLY. ANY UNAUTHORIZED USE OF THIS FABRIC IS PROHIBITED AND ILLEGAL."

        23. Upon information and belief, Plaintiff and Counterclaim-Defendant Tabberone is in the business of manufacturing and selling various home décor items, such as pillows, throws and tissue box covers made of fabric.

        24. Upon information and belief, Tabberone used MLB Licensed Fabric to manufacture tissue box covers bearing certain MLB Club Trademarks (the "Tissue Box Covers").

        25. In or around March 2003, Tabberone posted three auctions on eBay, Inc.'s ("eBay") Internet action website for Tissue Box Covers made of the Licensed Fabric bearing certain of the MLB Club Trademarks, (the "Tabberone Auctions"). See Attachment No. 3 to Complaint. By posting the Tabberone Auctions on eBay's Internet Auction website, Tabberone placed the infringing Tissue Box Covers in interstate commerce extending to all states including Colorado and Arizona. Tabberone's offer to see and/or sale of said Tissue Box Covers through the Tabberone Auctions violated the intended purpose of the MLB Licensed Fabric which specifically and prominently stated that the MLB Licensed Fabric was "for individual consumption only." Upon information and belief, the Tissue Box Covers offered for sale or sold through the Tabberone Auctions do not have affixed to them labels or tags or other identification indicating that the Tissue Box Covers are not licensed or sponsored by, or affiliated in any way with, MLBP and/or the MLB Clubs.

        26. Tabberone also created three titles for the Tabberone Auctions-"Atlanta Braves Fabric Tissue Box Cover, " "Arizona Diamondbacks Tissue Box Cover," and "New York Yankees Tissue Box Cover" (the "Tabberone Auction Titles")-by prominently using the MLB club Trademarks to identify and designate Tabberone's Tissue Box Covers. Such use of the MLB Club Trademarks was not authorized by MLBP or the MLB Club.

        27. Each of the Tabberone Auctions featured a photograph of the specific Tissue Box Cover being offered for sale featuring MLB Club Trademarks (the "Tabberone Auction Photographs"). Such use of the MLB Club Trademarks was not authorized by MLBP or the MLB Clubs.

        28. Consumers who use eBay's Internet auction website have the ability to browse the products being offered for sale on that website by entering keywords into that website's search engine. If such keywords relate to any items currently being offered for sale through an eBay auction, eBay consumers are presented with a list of corresponding auctions which are identified solely by the title of the auction and a photograph of the item being offered for sale.

        29. On or around March 2003, eBay consumers who entered into eBay's search engine the keywords "Atlanta Braves," Arizona Diamondbacks," or "New York Yankees" would have received a list of relevant auction titles and auction photographs relating to those keywords. Upon information and belief, such auction titles and auction photographs would have included the Tabberone Auction Titles and Tabberone Auction Photographs. Upon viewing the Tabberone Auction Titles and Tabberone Auction Photographs, eBay consumers would have no reason to believe that the corresponding Tabberone Auctions and Tissue Box Covers were not licensed products of MLBP or the MLB Clubs.

        30. Tabberone does not currently have, nor has it ever had, a license from MLBP or the MLB Clubs to use the MLB Club Trademarks for any purpose, including for use in connection with home décor items such as the Tissue Box Covers or the Tabberone Auctions.

        31. As a result of MLBP's extensive licensing of Major League Baseball trademarks, including the MLB Club Trademarks, on a wide variety of products including home décor items, consumers have come to expect such products as emanating from MLBP and the MLB Clubs. The prominent and misleading use of the MLB Club Trademarks on home décor items such as the Tissue Box Covers and in the Tabberone Auction Titles and Tabberone Auction Photographs is likely to cause confusion, mistake or deception as to the source or origin of Tabberone's Tissue Box Covers and the Tabberone Auctions and lead consumers to mistakenly believe that the Tissue Box Covers and Tabberone Auctions are authorized by MLBP or the MLB Clubs, and that Tabberone and the Tissue Box Covers are associated or affiliated with, endorsed or sponsored by MLBP and/or the MLB Clubs. Consequently, any deficiencies or faults in the quality of Tabberone's goods and/or services are likely to reflect negatively upon, tarnish, and seriously injure the goodwill and valued reputation which MLBP and the MLB Clubs have established for goods and services marketed under the MLB Club Trademarks and is likely to result in a loss of revenues to MLBP and/or the MLB Clubs.

        32. On March 31, 2003 and as set forth in Exhibit E attached hereto, MLBP notified eBay as part of the eBay VeRo Program, that Tabberone made unauthorized use of the MLB Club Trademarks in connection with the three listings for the Tabberone Auctions and that such use infringed MLB Club Trademark rights protected by MLBP. Pursuant to the standard procedure of the eBay VeRO Program, eBay then terminated the Tabberone Auctions on or about the same date. See Attachment No. 3 to Complaint.

        33. On April 1, 2003, MLBP and Tabberone engaged in correspondence as set forth in Attachment Nos. 2 and 4 to the Complaint.

        34. On or about April 3, 2003, Karen Dudnikov submitted a Counter-Notice to eBay certifying her "good faith belief that the listings or other materials referred to below [the Tissue Box Covers] do not involve infringing materials or uses and have been identified by a Verified Intellectual Property Owner, its agent, or law enforcement as infringing by mistake or due to misidentification." See Attachment No. 5 to Complaint. This Counter-Notice contradicted communications from MLBP to Tabberone that the Tissue Box Covers and Tabberone Auctions infringed the MBL Club Trademarks by creating a likelihood of consumer confusion and suggesting sponsorship by endorsement by MLBP in violation of trademark laws. See Attachment No. 2 to the Complaint.

        35. Having no further communications with MLBP, on April 3, 2003, Tabberone filed the above captioned action against MLBP regarding Tabberones' use of the MLB club Trademarks.

Counterclaim Count One: Trademark Infringement-Federal Law

        37. The above acts by Tabberone constitute trademark infringement of the MLB Club Registered Trademarks in violation of section 32(1) of the Lanham Act, 15 U.S.C. § 1114 (1), in that they create the likelihood of consumer confusion as to whether the Tissue Box Covers, the Tabberone Auctions and/or Tabberone were affiliated or associated with the MLB Clubs and/or MLBP.

        38. Tabberone infringed the MLB Club Registered Trademarks by promoting, marketing, offering for sale and/or selling the Tissue Box Covers using the MLB Licensed Fabric bearing the MLB Club Trademarks.

        39. Tabberone's wrongful acts have permitted or will permit Tabberone to make sales and profits on the strength of the substantial nationwide advertising, sales, consumer recognition, and goodwill of the MLB Club Trademarks.

        40. As a direct and proximate result of Tabberone's wrongful conduct, MLBP and the MLB Clubs have been and will be deprived of the value of the MLB Club Trademarks as commercial assets.

        41. Tabberone's actions in violation of MLBP's trademark rights have been deliberate, willful, and in complete disregard of MLBP's rights.

Counterclaim Count Two: Unfair Competition-Federal Law

        43. The above acts by Tabberone constitute unfair competition, passing off and use in commerce of false designations of origin, false or misleading descriptions of fact or false and misleading representations of fact in violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

        44. Tabberone's wrongful acts have permitted or will permit Tabberone to make sales and profits on the strength of the substantial nationwide advertising, sales, consumer recognition, and goodwill of the MLB Club Trademarks.

        45. As a direct and proximate result of Tabberone's wrongful conduct, MLBP and the MLB Clubs have been and will be deprived of the value of the MLB Club Trademarks as commercial assets.

        46. Tabberone's actions in violation of MLBP's trademark rights have been deliberate, willful, and in complete disregard of MLBP's rights.

Counterclaim count Three: Common Law Trademark Infringement and Unfair Competition-Colorado Law

        48. The above acts by Tabberone constitute common law trademark infringement, unfair competition, and passing off in violation of Colorado law. Tabberone's auctions create a likelihood of consumer confusion as to whether the Tissue box Covers, the Tabberone Auctions, and/or Tabberone were affiliated or associated with MLBP and/or the MLB Clubs and unfairly misappropriate and exploit the business value of the MLB Club Trademarks.

        49. Tabberone's wrongful acts have permitted or will permit Tabberone to make sales and profits on the strength of the substantial nationwide advertising, sales, consumer recognition, and goodwill of the MLB Club Trademarks.

        50. As a direct and proximate result of Tabberone's wrongful conduct, MLBP and the MLB Clubs have been and will be deprived of the value of the MLB Club Trademarks as commercial assets.

        51. Tabberone's actions in violation of MLBP's trademark rights have been deliberate, willful, and in complete disregard of MLBP's rights.

Counterclaim Count Four: Trademark Infringement-Arizona Law

        54. The above acts by Tabberone constitute trademark infringement of the DIAMONDBACKS Arizona Registrations in violation of Ariz. Rev. Stat. § 44-151, in that they create a likelihood of consumer confusion as to whether the Tissue Box Covers, the Tabberone Auctions and/or Tabberone were affiliated or associated with the MLB Clubs and or MLBP.

        55. Tabberone infringed the DIAMONDBACKS Arizona Registrations by promoting, marketing, offering for sale and, selling the Tissue Box Covers using the Licensed Fabric bearing the DIAMONDBACKS Trademarks in the state of Arizona.

        56. Tabberone's wrongful acts have permitted or will permit Tabberone to make sales and profits on the strength of the substantial nationwide advertising, sales, consumer recognition, and goodwill of the DIAMONDBACKS Trademarks.

        57. As a direct and proximate result of Tabberone's wrongful conduct, MLBP and the MLB Clubs have been and will be deprived of the value of the MLB Club Trademarks as commercial assets.

        58. Tabberone's actions in violation of MLBP's trademark rights have been deliberate, willful, and in complete disregard of MLBP's rights.

Counterclaim Count Five: Colorado Consumer Protection Act

        60. By virtue of the above acts, Tabberone has engaged in unfair and deceptive trade practices as set forth in Colo. Rev.Stat § 6-1-105(1), including, inter alia., in Colo. Rev. Stat. § 6-1-105(1)(a), (b), (c), and (u).

        61. Tabberone's actions occurred in the course of Tabberone's business, vocation, and occupation.

        62. Tabberone's actions significantly impact the public as actual as potential customers of the goods of Tabberone, MLBP, and the MLB clubs.

        63. Tabberone's actions constitute bad faith conduct.

        64. As a direct and proximate result of Tabberone's wrongful conduct, MLBP and the MLB Clubs have suffered damages in an amount to be determined at trial.

        WHEREFORE, Defendant and counterclaim-Plaintiff MLBP respectfully request that this Court:

        (a) Dismiss the Plaintiffs' Complaint with prejudice;

        (b) Grant MLBP permanent injunctive relief preventing Tabberone, and any agents, servants, employees, or attorneys of Tabberone, and all others in active concert or participation with Tabberone from using the MLB Club Trademarks, or any other mark similar or likely to cause confusion with the MLB Club Trademarks in the sale, offering for sale, distribution, advertising, or promoting of any products, including, but not limited to the Tissue Box Covers, at any locality in the United States in a manner likely to create a likelihood of consumer confusion; from suggesting, requiring or otherwise inducing others to use the MLB Club Trademarks, or any other mark similar to or likely to cause confusion with the MLB Club Trademarks in the sale, offering for sale, distribution, advertising or promoting of any products, including, but not limited to, Tissue Box Covers, at any locality in the United States; from passing Tabberone's goods off as being associated with MLBP, the MLB Clubs or other Major League Baseball Entities; and from committing any other unfair business practices directed toward obtaining for itself the business and customers of MLBP, the MLB Clubs or other Major League Baseball Entities;

        ( c) Order Tabberone to surrender immediately for destruction all products, including but not limited to, Tissue Box Covers, labels, packaging, advertisements, and other materials bearing the MLB Club Trademarks pursuant to 15 U.S.C. § 1118;

        (d) Award MLBP any and all profits derived from Tabberone's wrongful acts and the actual damages suffered by MLBP as a result of Tabberone's unlawful conduct, in an amount to be proven at trial, pursuant to 15 U.S.C. § 1117(a) and Ariz. Rev. Stat. § 44-1451;

        (e) Award MLBP treble damages and enhanced profits pursuant to 15 U.S.C § 1117 and §1125 ( c)(2);

        (f) Award MLBP three times actual damages sustained by MLBP as a result of Tabberone's unlawful and bad faith conduct, pursuant to Colo. Rev. Stat § 6-1-113(2)(a)(III);

        (g) Award MLBP reasonable attorneys' fees and costs of this action, pursuant to, inter alia. Colo. Rev. State. § 6-1-113(2)(b), Ariz. Rev. Stat. § 44-1451, and 15 U.S.C. § 1117 (a).

        (h) Award MLBP, in the alternative, statutory damages for willfulness pursuant to 15 U.S.C. § 1117(c );

        (I) Award MLBP, in the alternative, statutory damages pursuant to Colo. Rev. Stat. § 6-1-113(2) and Ariz. Rev. Stat. § 44-1451;

        (j) Award MLPB pre-and post-judgment interest; and

        (k) Award MLBP all other relief to which MLBP may be entitled.

Date: June 23, 2003