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preclusion.
1
responsive pleading, Plaintiff's filed a First Amended
P. 15(a).
dismiss the FAC on April 30, 2009 [Docket, No. 26], which
No. 31].
2
“Diane Von Furstenberg,” (“the ‘188 mark”) in 1999. Am.
and renewal of the '188 registration, the mark was not used
1 [EXHIBIT No. 1]
2 [EXHIBIT No. 2]
3
which was not justified by the facts of the matter. Am.
13
cv-1356.
4
Although Law Defendants and Von Furstenberg
Court in their request for the seizure order and TRO. Am.
3 [EXHIBIT No. 3]
5
by characterizing Mrs. Snyder as a “fly by night”, who if
Compl. 45.
Am. Compl. 25, 29, 33, 35-36. About five months after the
reporter for the New Yorker Magazine. Am. Compl. 29, 32,
47.
4 [EXHIBIT No. 4]
5 [EXHIBIT No. 5] [EXHIBIT No. 6]
6
was he mentioned in any way on the search and seizure
which Mr. Snyder held half ownership rights, which were not
No. 1:06-cv-1356.6
counsel and knowing that Mr. Snyder was not a party to the
Am. Compl. 42
6 [EXHIBIT No. 7]
7
against Catherine and entering a permanent injunction, but
and damages for trial. Mem. Op., [Docket No. 79], Order,
No. 1:06-cv-1356.
8
Mrs. Snyder was not entitled to her Virginia Homestead
acted willfully and in bad faith, the Court ruled that Mrs.
IV. ARGUMENT
9
injustice." Pacific Life Ins. Co. v. American Nat'l Fire
10
Plaintiff respectfully contends that, in dismissing
law, and that if the Order is not amended, the Snyders will
infringement action.
11
as could have been joined in the first action.
7 See Dionne v. City of Baltimore, 40 F.3d 677 (4th Cir. 1994); Rivet
v. Regions Bank of La., 522 U.S. 470, 476 (1998) (quoting Federated
Dep't Stores, Inc. v. Moitie, 452 U.S. 394, 398 (1981))Pueschel, 369
F.3d at 355 (quoting In re Varat Enters., Inc., 81 F.3d 1310, 1316
(4th Cir. 1996)); Peugeot Motors of Am., Inc. v. E. Auto Distribs.,
Inc., 892 F.2d 355, 359 (4th Cir. 1989) (quoting Brown v. Felson, 442
U.S. 127, 131 (1979)). Pittston Co. v. United States, 199 F.3d 694,
704 (4th Cir. 1999); Martin v. Am. Bancorporation Ret. Plan, 4 07
F.3d 643, 650 (4th Cir. 2005)
12
the plaintiff in the second action was the plaintiff in the
13
subsequent assertion as an independent claim for relief.
22(2)(a).
14
statute required the defendant to bring his claims in the
(see also8)
15
time and place of his own selection." Restatement § 22
cmt. a.
Order *14. With all due respect to this Court, had Mrs.
Co., 690 F.2d 380, 389 (4th Cir. 1982) (holding that "the
16
institution of plaintiff's suit tolls or suspends the
538 F.2d 1048, 1051- 1053 (4th Cir. 1976), the 4th circuit
17
support or refute both the claim and counterclaim, the
18
than fifteen days after the order is issued. Vuitton v.
19
1116(d)(9) of the Lanham Act.9 Moreover, Mrs. Snyder was
(i).10
Bank & Trust Co., 339 U.S. 306(1950), the right to be heard
20
hearing, she could not choose for herself whether to appear
in that matter, but that the Snyders need not attend, and
21
hide, or otherwise make the seized goods inaccessible, or
for the order under which such seizure was made . . . .”).
278 F.3d 523, 531 (5th Cir. 2002) (noting that § 1116(d)
22
wrongful); Martin’s Herend Imports, Inc. v. Diamond & Gem
Trading United States of Am. Co., 195 F.3d 765, 774-75 (5th
23
TRADEMARK INFRINGEMENT UNDER 15 U.S.C. 1115(b)
24
does not bar the Snyder's from asserting their claims in a
25
that the failure to do so renders the prior judgment res
26
previous case, Diane von Furstenberg Studio v. Snyder did
from the Snyder's home on Dec. 8, 2006. Thus, the Court did
13[Exhibit No. 9]
27
Dec. 8, 2006, were in fact, counterfeit Diane von
Furstenberg dresses.
only had Mrs. Snyder not used the DVF mark in commerce, but
it was her belief that DVF did not use the 'DVF' mark in
28
on dresses either.18
29