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HomeMy WebLinkAbout97-04227 .. WORLDI'/IDE TELECOMMUNICATIONS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97-4227 CIVIL TERM CIVIL ACTION-LAW JURY TRIAL DEMANDED MIRRa COMPANY, Defendant RESPONSE TO COUNTERCLAIM 1. After reasonable investigation, Worldwide Telecommunications. Inc. (Worldwide) is without knowledge or information sufficient to form a belief as to the truth of paragraph 1 of Mirro Company's paragraph 1. The same is therefore denied and proof is demanded. 2. Denied. Robert J. Kanitz who was the information services director for Mirro Company authorized Worldwide to use Mirro Company as a reference. 3. It is denied that Worldwide did anything in violation of 15 U.S.C. 51125. 4. It is denied that anything Worldwide did served to dilute or tarnish the mark of Mirra Company. 5. Denied. Robert J. Kanitz was very satisfied with the service being provided by Worldwide to the Mirro Company. In that Robert J. Kanitz was very satisfied with the service being provided, Worldwide asked if Robert J. Kanitz on behalf of Mirro Company would provide favorable references to prospective clients of Worldwide. Robert J. Kanitz on behalf of Mirra Company agreed to do so and accordinqly Worldwide lolled Mirro Company al a reference. 6. It is denied that Mirra Company has been damaged at all. It il denied that Worldwide enqaged in any deception or that the qoad will of Mirra COIIIp4ny was damaged or that ita famol.ll Nrll wal diluted. With the conlent of Mirra Company, Worldwide lolled Mirro CClIllpany .. . reference. VERIFICATION I hereby state that I am an adult individual who is authorized to make this verification and that the facts set forth in the foregoing response are true to the best of my knowledge. information, and belief. I understand that false statements herein are made subject to the penalties of 18 Pa. C.S. S4904 relating to unsworn falsification to authorities. Worldwide Telecommunications. Inc. Dated: ?W,n.cl~ Robert Schaner - President worldwide Telecommunications. Inc. worldwld\.trro\ver1f I..1I , f? .() ':1 ~ , - .. '; .n! : 1 .,., ':-1 .;: ::J , ' _0 i.j ".'- " 1 w '_'~ :'1 ~."1 ";"'~' , ~., -. -. ... Carleton O. StroU88 Pa. Supreme Court No. 29564 David R. Fine Pa. Supreme Court No. 66742 Kirkpatrick'" Lockhart Ltf' 240 North Third Street Harriabul'l. PA 17101 WORLDWIDE TELECOMMUNICATIONS. INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97.4227 Civil Tcrm MIRRO COMPANY Civil Action - Law Defendant. ANSWER WITH NEW MA~R Mirra Company ("Mirro") hereby answcrs the complaint as follows: 1. Mirro is without Ilufficient knowledge to admit or deny the averments oCthia paragraph and, therefore. they are denicd. 2. Denied in part. It is denied that Mirro is a corporation. At all relevant times, Mirra haa been a division of Newell Operating Company. It is admitted that Mirro hall iu principal place of bUlJineu in Maniwwoc, WiIlc:onaion. 3. Denied. It is denied that the parties entered into Il contract. To the contnir)', there was no contl1lct between the parties beca\lle, _moq other things, the person signing the document attached to the complaint as Exhibit "A" was without authority to bind Mirro contractually. 4. Denied. The response to Paragraph 3 IS incorporated by reference. 5. Denied. The responsc to Paragraph 3 IS incorporated by reference. 6. Denied. The responsc to Paragraph 3 is incorporated by reference. 7. Mirro is without sufficient knowledge to admit or deny the averments ofthis paragraph and, therefore, they are denied. 8. Mirro is without sufficient knowledge to admit or deny the averments ofthis paragraph and, therefore, they are denied. 9. Mirro is without sufficient knowledge to admit or deny the averments of this paragraph and. therefore. they are denied. 10. Denied. It is denied that the parties entered into a contract. To the contrary, there was no contract between the partie. becaU8e. among other thinp, the penlOn .icninc the document attacbed to tbe complaint as Exhibit "Aw Wll8 without authority to bind Mirro contractually. 11. Denied in part. It is denied that the partie. entered into a contract. To the contrary. there w.. no contract between the parties beea\lle. ataonl other thiap. the penon .ipinc the document attached to the co_plaiat u 2 Exhibit "A" was without authority to bind Mirro contractually. It is admitted that there were communications between employces of Plaintiff and cmployccs of Mirro; however, Mirro denies the characterization of thosc communications in this paragraph. 12. Denied as statcd. It is dcnied that Mirro had an opportunity to request or negotiate changes in a contract bccausc Mirro did not enter into a contract. 13. Denied. The document attached to the complaint as Exhibit "AU is a document that speaks for itself and any characterization by Plaintiff is denied. The response to Paragraph 3 is incorporated by refcrence. 14. Denied. It is denied that Plaintiff performed its obligations under what it has alleged to be a contract. To the contrary, the product Plaintiff presented to Mirro was unusable and, thcrefore. Plaintiff did not meet its obligations under what it has alleged to be a contract. 15. Denied. It is denied that Mirro relied on Plaintiffs data and used it to negotiate lower rates with its carrier. To the contrary, Mirro relied on information widely known in the telecommunications industry and on information from sources other than Plaintiff in its negotiations with its carrier. Further answering, Plaintiff provided no uMble information to Mirra. J 16. Dcnicd. It is dcnicd that Mirro passcd on Plaintiffs data to any othcr party. To thc contrary. Mirro did not rcly upon that data or pass it along to any other entity. 17. Dcnied. It is denicd that Mirro passcd on Plaintiffs data to any other party. To the contrary, Mirro did not rely upon that data or pass it along to any other entity. The responscs to Paragraphs 3 and 15 are incorporated by reference. 18. Denied. It is denied that Mirro has cau..'!Cd any damage at all to Plaintiff. To the contrary. neither Mirra nor any of its "associated entities" had any contract with Plaintiff and neither Mirra nor any of its "associated entities" relied upon any information provided by Plaintiff. 19. Mirra is without sufficient knowledge to admit or deny the averments of this paragraph and. therefore, they are denied. 20. Mirra is without sutrlCient knowledge to admit or deny the averments of this paragraph and, therefore. they are denied. Further answering, it is denied that the fee llOught is reallOnable under the circumstancell. WHEREFORE. Defendant Mirra C()mpany seeks judlUlent in its favor alone with lIuch other relief a8 the Court deems jU5t and equitable. ~ 4. Worldwidc's usc of Mirro's famous mark scrvcs to dilute and tarnish that mark in a way that reflects adversely upon Mirro's products and reputation. 5. In using Mirro's mark, Worldwide willfully intcnded to trade on Mirra's reputation in the marketplace. 6. Mirro has been damagcd as a result of Worldwide's deception in that Mirro's reputation and goodwill will be damaged and its famous mark will be diluted. 7. Mirra has a reasonable intcrest in the protection of its trade name. 8. Worldwide's conduct is in violation of the Lanham Act, 15 U.S.C. S 1125(a) and (c) as amended by the Federal Trademark Dilution Act of 1995 (effective January 16, 1996). WHEREFORE, Counterclaimant Mirra Company hereby demands judgment against Worldwide Telecommunications, Inc., and the following relief; a. a permanent injunction prohibiting Worldwide Telecommunications. Inc., from using Mirra Company's mark in any of its advertising material and requiring Worldwide Telecommunications, Inc., to contact each and every pel'l!On or entity to whom it has distributed advertitting materials bearing Mirro Cum pliny's mark llnd to adville such pel'lJOn or entity that Mirra (> Company is not and has not been a client or customcr of Worldwidc Tclecommunications, Inc.. and that Mirro Company docs not cndorsc in any way any product or scrvice of Worldwide Tclccommunications, Inc. b. compensatory damages including, but not limited to, any profits Worldwide Telecommunications, Inc., has realized as a result of advertising or promotional materials using Mirro Company's mark: c. reasonable attorney's fees; and d. any other relief deemed just and appropriate by the Court. Respectfully submi~ed, \' .r I If r; 7}- KIRKPATRICK" LOCKHART LLP 240 North Third Street Harrisburg, PA 17101 (717) 231.4000 Carleton O. trouss Pa. Supreme ourt No. 29554 David R. Fine Pa Supreme Court No. 66742 Coutuel {or Mirra COnlpan, t ;,;,. . . ! 7 DEe 5 1997 4:01PtL. 1'EJ.ELL LEGR.. OEPT ROCKF'ORlr , I~Y ....:r ~ Ur.:)'~ .K"'~"I~.L'-"IlL.IJ-"\I'f.1 . . #"-:.' ~ i I hlnby CI'rti(y that the augment. CODtamecl m the rortlOiIlg &IlIwer and f DeW matter an true and correct to the beet of ZD7 baw1eclp, ~ iDIormatioJllU1d b.U,! I UDdentaDd that thiI oerti&cadon It made .uhjeat to the p,l181tie. or 18 Pa, , 0.8.14904, re1atiDe to W1IWOI'D &latf;l!lItiou to authoritit.. I~h- ,1,9: I I ~//~ Datil: , I ~' , -' - - eMlll A ~ ".11'"1"I& I n II'NT t .8T Bripz To_ CollllUll1lil:atiOJlS Product Dcvdc.pmar CorporaIioIl Scbillin& Paper CotnpIIIY MiD Supply, bcot~.ed Trusi1aII services. 1r.w.l""aud ifUi MimI CompartY - 'i JS-~3S' ~ 1'71 ADdw HodQaa specialtY Glass 0-- CCJIllOfaDoll Cascade Corpora!ion Cambridge IJIduSUia. ha-.I"".l>o4 MareriIIs HIQIII~ ~ Co.l""moo Tr2'IeI ApIlIS WaNtin.... Hd4 DisuibutiuI A~ Ml:NIdiaI" Millwork COftII*IY CIh!yst ~aa1 Oesip lnstinIte of America Blltoo-Conoa.1Dcorporaud VICtOI)' Vaa C~rarioD ~="'~&1 ~~ T.ahon1GrY. J.ocoqIotII8i Columbia JndusUics. \Dl.OIl""tllold n. PItebIo CIicftau Cu\llridp Biotedl AIIieII Film A Video 1,1\1 (, ApecheMills. t-tpon~ ::r~,oJ I H '''0. J1lcorporated St_y c_ C..,..,., bco.,..ocIlIS C_I U1lion of'Darov ADt DIll sysrems Ulrich 010-' ocU Coc.pa8Y .A.ccuR fiN...... ~ L..4I"",404 W.. SIll AWdiGa lalr-l.Awl.t Tool ~~ Co. n. B1WIA C~_~ A" wu.,a s-. ~ -. -- Oua boaon W_ ,tIIria Am Nll!"_.... n. 0.- A.,..i]i 11'''' ,... \.aMr S,-- T1lII Goft COftIf.., At ~ 11\-"""''' GaIcOrp Norzren fabri.Quilt o.w IncIusUi.... t....o.l""4>d ll. " D Labora!Dries TramiI Mia: eollCtUC eOJDPUlY lO. S~ CoosINo:Iioa. IocarpolClDii The cm- COIIIpCIY Americm }Ilaslics Mould;". GtoIIp P\Ibll~ mw.1""'"w fUdAitC...apJ--' Manin PacneD CompIlIY.la.-rOfUe4 l't.oeDix An Pms Sbid SaIOII. blco.~ ccauaI elll ClJIlIPUlY ~ 1Dc:.a...... oM eomSanics. L...._aud EldOll Exausi=s. tnc.orporued DlIIT EIl";'- Io'AC CIpiW zm:c.1I'" ponw1 11lc *co Orwp. ~rOIlle4 Be Lamp. IlIc...o .....04'- Vekri, ~ , /lZlm CM ~ IIiOll 'I HADCO CM.,.4I1ioD OW o.....;..iOII a.aric I ~T' 1&1 Bey SIa1II TNlIl CQIDPIIlY I AI\IeIt Oil. Supply. h..olpOnItI! \ _'_4'1'" . ..... j I I ~\ ! , , . , , , .. . . . KlRKM TRICK &.'l~~HART llf .lttiJ."'''-lVS-At ....W .t;l Nt"-!H 1 mil' n.'tl' tU,[i,t"~I',~. "~"',;\>l\,,,ftit~} ~h~ ~ ~~; 1:nf...~_"r t'''l711\\.~\:\ . Carleton O. Strouss Pa. Supreme Court No. 29554 David R. Fine Pa. Supreme Court No. 66742 Kirkpatrick &. Lockhart 1.1.1' 240 North Third Streel Harrisbul'l. PA 17101 WORLDWIDE TELECOMMUNICATIONS. INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA v. NO. 97.4227 Civil Term MIRRO COMPANY Civil Action - Law Defendant. TO THE PROTHONOTARY: Please enter a rule against Worldwide Telecommunications. Inc., plaintiff, to file a complaint against Mirro Company, defendant, within 20 days hereof or suffer the entry of a judgment of non pros. Respectfully sUbmi/J - I . . KIRKPATRICK &; LOCKHART IJ..P 240 North Third Street Harrisburr, PA 17101 (717) 231-4500 Car eton O. S rq' Pa. ~upre~e Ct:~ No. 29554 DaVId R. Fme ,,' ./ Pa Supreme Court No. 66742 CounMl {or Mirro Company '<~; .' - I . " , ~ - ) " f~. :' . .. .- , ~- , , , I >~iN><.tto( In ~b[ ~~~~ I rT-.I I-'rTtDO '.... 1 rt..... .rt...,.... ,< elii 1 0-.1 j ~~ '... ..., '.... ~~I I", j;~~ ~" I~ r flI lJ: .... I VI........ ZO< IrT ~rT tD .. > .... I . CD I"t\. 0 ,'" ....lii'... '" if 01-" 0 ." :g '" a:e~~I1C:~ f~~ - c5~b1 .... j , CD 'tI H'l. l' N rT n . .............. ii VI ... ~ ..... ~ tD 'tl ~cn~ VI o .. S' l::: '" ....cn n '" ....c:rTj. I S- o rT' ... ....... I "'~H ~ ... ....." I m .", , ~ rTR , N , N , 0 , N ... I .. I , I WORLDWIDE TELECOMMUNICATIONS, INC.. Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA ( v. NO. 97.4227 CIVIL TERM CIVIL ACTION'LAW MIRRO COMPANY. Defendant JURY TRIAL DEMANDED NOTICE YOU HAVE BEEN SUED IN COURT. If you wish to defend aqainst the claims set forth in the following paqes. you must take action within twenty (20) days after this Complaint and Notice are served. by enterinq a written appearance personally or by attorney and filing in writing with the Court your defenses or objections to the claims set forth against you. You are warned that if you fail to do so the case may proceed without you and a judgment may be entered against you by the Court without further notice for any money claimed in the Complaint or for any other claim or relief requested by the Plaintiff. You may lose money or property or other rights important to you. YOU SHOULD TAKE THIS PAPER TO YOUR LAWYER AT ONCE. IF YOU 00 NOT HAVE A LAWYER OR CANNOT AFFORD ONE. GO TO OR TELEPHONE THE OFFICE SET FORTH BELOW TO FIND OUT WHERE YOU CAN GET LEGAL HELP. Court Administrator 4th Floor Cumberland County Courthouse Carlisle. PA l7013 (717)240-6200 NOT I C I A Le han demandado a usted en la corte. Si usted qui ere defenders. de estas demandas expuestas en las paginas siguientes. usted tiene viente (20) dias de plazo al partir de la fecha de la demanda y la notificacion. Usted debe presenter una apariencia escrita 0 en persona 0 por aboqado y archivar en la corte en forma escrita sus defenses 0 SUI objecionea a 1as demandsl en contra de 1101 persona. Sea avisado gue Ii usted no 8e defiende. la corte tomara medidaa y puede entrar una orden contra uated sin previa aviso 0 notificacion y par cualquier queja 0 alivio que .1 pedido en la peticion de demanda. Usted puede perdu dinero 0 11011 prcpiedadel 0 otros derechos importantes para usted. LLEVE ESTA DEMANDA A UN ABOOAGO 1NMEDIATAMENTE. SI NO TIENI ABOGADO 0 51 NO T1ENE EL D1NERO SUFIC1ENTE DE PAGAR TAL SERVICIO, VAYA EN PERSONA 0 LLME FOR TELEFONO A LA OFICINA COYA OIRECCION SE ENCtJEN'I'RA ESeRITA ABAJO PARA AVER1GUAR DONCE SE PUISOE CONSEGUIR AS1STENCIA LEGAL. Court Administrator 4th Floor Cumberland County Courthouse Carlille, PA 17013 (717) :040-6200 THE PARTIES 7. Worldwide is an independent consultant who makes a business of analyzing a client's communications expenses with a view towards proposing similar communications services from the same carrier or another c5rrier at a lower rate. 8. Worldwide utilizes computer programs. a tariff data base, industry contacts and other facilities and assets to ensure that it can serve its clients with efficiency and thoroughness. 9. To recover these expenses. it claims a proprietary interests in these assets and in the data it provides its clients. STATEMENT OF THE CASE 10. On January 8. 1996. Worldwide and Mirro entered into a contract. a true copy of which is attached hereto as Exhibit "A" and incorporated by reference. 11. Several weeks prior to January 8. 1996. Worldwide and Mirro had been communicating with each other in reference to the services which were eventually provided pursuant to the January. 1996 contract. 12. During the weeks before it signed. Mirra had ample opportunity to request or negotiate changes in the contract, change, in the service Worldwide proposed. or changes in the fee Worldwide would expect under the contract. Mirra aalled for no changes in the writing attached hereto. 13. The written agreement between the parties nquir., that Worldwide would receive one half of the first twelve IllOnth. .aving, realized by Mirra. 14, Worldwide perfomed II agreed. providing Mirra with copiou, data on avai lable long distance rates and rtcOl!llllend a long dhtane. plan that would lave Mirro '4.690.00 per IllOnth over it. then'current long dilnance plan. 15. Mirra relied on Worldwide's data and used it to negotiate lower rates with its current carrier AT&T without paying Worldwide anything. 16. Mirro also passed Worldwide's data on to entities related to Mirra. such that the other entities might use Worldwide's property to further their own financial interests at Worldwide's expense and without paying Worldwide. 17. Mirro has utilized worldwide's recommendations. both for its own benefit and for the benefit of others. and implemented Worldwide's ideas without payinq Worldwide any fee. in violation of the aqreement between Mirra and Worldwide. 18. It is believed Mirro has damaged Worldwide to the extent of $28.140.00 in fees owed directly by Mirra to Worldwide. and an additional unknown amount in fees which Worldwide would have collected from each of Mirra's associated entities for a total exceeding the jurisdictional limit above which cases are ineligible to be heard by a panel of arbitrators. 19. Worldwide has incurred and will incur Court costs and legal costs in the bringing of this action. 20. Reasonable legal costs in this are expected to amount to $7.035.00. WHEREFORE Worldwide prays that: A. Judgment be entered against Mirra for $29.140.00 plus $7,035.00 in attorney fees for a total of $35.175.00 plus any additional amounts proven at trial. 0 \0 n (" --I 0"'1 . ~ ""tJ: ! ..,., t) " " 1,1", , " ':h . -, , ...... , J , , " :;'5 .. I ~',; ...~ ~ ~{ I."" '" :"J ....... ~ .... WORLDWIDE TELECOMMUNICATIONS, INC., Plaintiff IN THE COURT OF COMMON PLEAS OF CUMBERLAND COUNTY, PENNSYLVANIA NO. 97-4227 CIVIL TERM v. MIRRO COMPANY, Defendant WITHDRAWAL/ENTRY OF APPEARANCE Please withdraw the appearance of Jeffrey N. Yoffe, Esquire in the above captioned matter and enter the appearance of /JIl.IIRe~s. CfJ\4;'JJ Esquire. YOFFE , YOFFE, P.C. By /,'/J4~ //1, ~j ~ N. YOm, ESQUIRE Attorney for Worldwide 214 Senate Avenue, Suite 203 Camp Hill, PA 17011 (717) 975-1838 Attorney 10 No. 52933 THE LAW 9PFICES OF LAIftl!:N$S; COVEN~) ~ By" / ~jl'LJ.!&,?I(~ I..! WRENC~ . edliN, i?S"I.'IR& J14 U.S. Highway 22 .est Suite E Greenbrooll, New Jersey 08.12 worldwld.\a1rro\wlt~r.w 4': , G '0 0 ::";,;1 :J:J "" ;::: .! , ,;:: f.) :n ::;> (.,L 16 ~" : ",:!.,J ~,) .~.~;~ .. ':0 - ~ ~'."l ~. IZO ~ JI (; Q ,"~ ~;;, ...., ~'J ..-) ) ',~,~ .,.." , , . ~J - r".. , -j. .. . -".'J (1'. .~ .