I recently went to a preview for BeautyMint, part of the BeachMint umbrella of websites that pairs products with celebrities – they’ve got JewelMint with jewelry designed by Kate Bosworth and StyleMint with t-shirts designed by the Olsen twins. The new beauty site launches at the end of October and is endorsed by Jessica Simpson and backed by celebrity esthetician Nerida Joy. I was skeptical to say the least when I walked into the launch event. Like the other Mint sites you sign-up and take a quiz, in this case it pertains to your skin, after that you’re given a regimen of skincare products that includes five ($39.95) or six ($49.95) products for you to use. The travel-size products are then sent to you and you automatically will get a new skincare kit sent to you every month.
The reason I’m not a member of any of the Mint sites – and believe me I’ve been very tempted by a number of the StyleMint tees (one in particular that was printed with “no…is a full sentence”..love it!) – is that I don’t like that you are automatically “opted in” to have a new product sent to you every month. I don’t want to have to remind myself to opt out if I don’t want a product after buying it one month. For skincare specifically however where it’s not about necessarily finding a new product, but an effective one I can see the benefit of not having to think about replenishing your supply and automatically getting new ones sent to you every month. The one issue is that you always have to get an entire kit since there’s no way to buy products individually. That said BeachMint is very open to customer feedback so that could change if others feel the same way. Jump for more!
The business model aside, I was able to chat with Nerida and she’s awesome. Well-spoken, poised, and at the age of 50 has wonderful skin. She works with countless celebs including Jennifer Garner and it’s clear that she wouldn’t put her name on anything she doesn’t believe really works. To that end, the line of BeautyMint products is packed with active ingredients, so they’re really counting on high volume because despite their frugal price-points these products are not inexpensive to produce. I have yet to try the products for myself so I can’t attest to how effective or not they were for me, but I spoke to a number of people involved with the venture and extensive studies were done to test their efficacy, including video documentation that will be up on the site when it launches.
The big draw, aside from the skincare products, from my perspective, is the amount of informative information that the site promises to deliver. There is a TON of info out there on skincare, but not very much of it is reliable. BeautyMint not only allows for a streamlined process of buying beauty products, but it delivers reliable content and the truth is just by using the right cleanser (a non-foaming one so skin isn’t stripped of moisture – something Nerida highlighted time and time again), and applying products the right way, in the right amounts can make a world of difference. The site is launching with eight products, but more will be added in the coming months.
Lastly, I was wary of Jessica Simpson being involved in the venture since I associate her with bad skin (blame the close-up acne shots in her Proactiv commercials), but I spoke to her rep and those commercials were actually taped years ago and I am told she not only now does not have acne, but more or less uses BeautyMint products exclusively on her face. I haven’t seen her in person so I don’t know the state of her skin for sure, but after speaking to the folks behind BeautyMint, I wouldn’t be swayed by her association. Not only do most celebs have bad skin — just think about the amount of products that go on their skin on a daily basis — but Nerida packs enough beauty cred for the both of them!
So Jessica Simpson’s rep states that she “more or less” uses Beautymint products exclusively? “More or less” and “exclusively” are incompatible. She either uses it exclusively, or she doesn’t. Isn’t that like being “sort of pregnant”? There can’t be any “more or less” about it!
I like Jessica Simpson and her skin seems to look great now, but I agree with Mamavalvetta – what does that mean she more or less uses them exclusively? I also agree with Sharon that I don’t really like those programs that you have to opt out of, I always forget.
LORRAINE AGUILAR (SBN 262679) LAguilar.Law@gmail.com
LORRAINE AGUILAR, ATTORNEY AT LAW P.O. Box 3662
Dana Point, CA 92629 Phone: (949) 690-8129
JOHN HUMPHREY (PRO HAC VICE ADMISSION ANTICIPATED) humphrey.law@earthlink.net
THE HUMPHREY LAW FIRM
107 S. West St., PMB 325
Alexandria, VA 22314 Phone: (703) 599-7919 Fax: (703) 637-4483
Attorneys for Defendants, ROBERT MAHONEY BEAUTYMINT LLC
UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION – LOS ANGELES
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BEACHMINT, INC., a Delaware Corporation,
Plaintiff,
) ANSWER AND COUNTERCLAIM ) AND AFFIRMATIVE DEFENSES ) OF DEFENDANTS ROBERT
) MAHONEY AND BEAUTYMINT ) LLC
v. )
) DEMAND FOR JURY TRIAL
ROBERT CHRISTOPHER ) MAHONEY , ) an individual; BEAUTYMINT LLC, a ) Florida limited liability company; )
and DOES 1-9, ) ) Defendants. )
1 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 2 of 46 Page ID #:291
INTRODUCTION
For his Answer to the Complaint, Defendants Robert Mahoney (“Mahoney”) and BeautyMint LLC (“BeautyMint”) file this Answer and Counterclaim in response to the Complaint filed by Plaintiff BeachMint, Inc., (“BeachMint”). BeautyMint and Robert Mahoney answer the numbered averments of the Complaint as follows:
NATURE OF THE ACTION
1. Defendants deny the allegations in the unnumbered Introduction. Defendants admit the allegations of Paragraph 1 that in this action BeachMint, Inc. (“BeachMint”) attempts to assert claims under the Lanham Act, 15 U.S.C. §§ 1051 et seq. and that it seeks relief from trademark infringement, false designation of origin, and unfairly competitive practices. However, Defendants deny the substance of all alleged claims.
2. Defendants admit that Plaintiff is seeking injunctive relief and not seeking any monetary damages. Defendants deny that the existence and amount of any damages is presently not clear. Defendants deny there are any damages. Defendants deny any other allegation in Paragraph 2.
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2 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 3 of 46 Page ID #:292
PARTIES
3. Defendants admit that BeachMint is a Delaware corporation having its principal place of business at 1411 5th Street, Suite 200, Santa Monica,California 90401.
4. Defendants admit that Robert Mahoney is an individual residing at 5084 Coronado Ridge, Boca Raton, Florida 33486.
5. Defendants admit that BeautyMint is a Florida limited liability company having its principal place of business at 5084 Coronado Ridge, Boca Raton, Florida 33486.
6. Paragraph 6 is vague and Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the allegations of Paragraph 6, and therefore deny the same.
JURISDICTION AND VENUE
7. Defendants admit that this Court has subject matter jurisdiction over this matter over this matter under 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338(a) as it arises under Acts of Congress related to trademarks and has subject matter jurisdiction over the state law claims pursuant to 28 U.S.C. § 1367 since the facts giving rise to those claims arise from the same common nucleus of operative facts.
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3 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 4 of 46 Page ID #:293
8. Defendants deny that this Court has personal jurisdiction over Robert Mahoney on the grounds articulated in Paragraph 8. However, Defendant Robert Mahoney voluntarily submits to the personal jurisdiction of this court for the purpose of this litigation. Defendants deny that he operates or has operated the website http://www.BeautyMint.biz. Defendants admit that the website provides the services claimed in the BEAUTYMINT trademark to residents of this judicial district. Defendants admit that the website is commercial and interactive. Defendants admit that the website provides services, including to residents of this judicial district, that are described in BeautyMint’s application for the BEAUTYMINT trademark at issue in this action. Defendants have insufficient information to form a belief as to whether the website has sold and is selling products and has provided and is providing services to customers in this judicial district. Defendants admit that BeachMint is a resident of this judicial district. Defendants admit that Robert Mahoney inquired of BeachMint whether it was interested in purchasing the domain name MyStyleMint.com. Defendants admit that Robert Mahoney engaged the services of trademark counsel in California, including for the BEAUTYMINT trademark at issue in this action. Defendants have insufficient information to form a belief as to whether Mahoney and BeachMint compete for the same customers within California. Defendants deny any other allegation in Paragraph 8.
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4 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 5 of 46 Page ID #:294
9. Defendants deny that this Court has personal jurisdiction over BeautyMint on the grounds articulated in Paragraph 9. However, Defendant BeautyMint voluntarily submits to the personal jurisdiction of this court for the purpose of this litigation. Defendants admit that Robert Mahoney assigned his rights in the BEAUTYMINT trademark to BeautyMint LLC around May 16, 2011. Defendants deny that all of Mahoney’s actions after May 16, 2011, were on behalf of BeautyMint. Defendants admit that actions taken by Mahoney as manager of BeautyMint after May 16, 2011, were on behalf of BeautyMint and are attributable to BeautyMint. Defendants deny that Mahoney’s actions prior to May 16, 2011, are attributable to BeautyMint. Defendants admit that Mahoney is the sole officer and owner of BeautyMint. Defendants deny that Mahoney is the alter ego of BeautyMint. Defendants deny any other allegation in Paragraph 9.
10. Defendants deny that venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b) with respect to the claims brought by Plaintiff. However, as Defendants voluntarily submit to the jurisdiction of this court, Defendants do not challenge venue in this judicial district.
FACTUAL ALLEGATIONS
11. Defendants admit the allegations in Paragraph 11 that BeachMint is a Delaware corporation located in Santa Monica, California and that it provides a number of ecommerce websites for celebrity-curated direct-to-consumer products.
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5 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 6 of 46 Page ID #:295
Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 11 that BeachMint’s concept is to create a family of consumer product verticals consisting of a number of brands fitting the pattern [name]Mint, where the “name” term would suggest or relate to the products or services offered under the brand, and therefore deny the same. Defendants deny any other allegation in Paragraph 11.
12. Defendants admit the allegations in Paragraph 12 that in October 2010 Plaintiff BeachMint publicly launched its first vertical called JewelMint, which allows users to fill out a survey to assess the user’s style, and the users are then shown and offered for sale a selection of jewelry each month based on the survey results. Defendants admit the allegation that Plaintiff BeachMint operates the website in conjunction with a well-known actress and a celebrity stylist. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 12 that the JewelMint website has been received with “incredible success,” and therefore deny the same. Defendants admit that Plaintiff has appeared in articles in the magazines and newspapers identified in Paragraph 12. Defendants deny any other allegation in Paragraph 12.
13. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the allegations in Paragraph 13 that as Plaintiff BeachMint approached its launch of of JewelMint, it focused its efforts on its next
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6 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 7 of 46 Page ID #:296
two verticals—StyleMint and BeautyMint; that those efforts involved extensive research and development regarding the fashion and beauty businesses, examining each industry, evaluating the competitive landscape, identifying potential product assortment, and seeking out the key experts and influencers in the marketplace; and that since 2010, BeachMint invested millions of dollars of resources into the launch of its next two brands; and Defendants therefore deny the same.
Defendants admit that Plaintif BeachMint entered into agreements with high profile celebrities to sponsors the brands, including Mary Kate and Ashley Olsen for StyleMint, and that it registered the http://www.beautymint.com domain name and operates that website. Defendants deny any other allegation in Paragraph 13.
14. Defendants admit the allegations in Paragraph 14.
15. Defendants admit the allegations in Paragraph 15.
16. Defendants admit the allegations in Paragraph 16.
17. Defendants admit the allegations in Paragraph 17.
18. Defendants admit the allegations in Paragraph 18.
19. Defendants admit the allegations in Paragraph 19.
20. Defendants admit the allegations in Paragraph 20.
21. Defendants admit the allegations in Paragraph 21.
22. Defendants admit the allegations in Paragraph 22.
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7 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 8 of 46 Page ID #:297
23. Defendants deny the allegation in Paragraph 23 that Mahoney did not use the BEAUTYMINT trademark in commerce until June 2011. Defendant Mahoney first used the BEAUTYMINT trademark at least as far back as December 2009. Defendants admit the allegation in Paragraph 23 that the domain name http://www.BeautyMint.biz was registered on April 28, 2011. Defendants deny the allegation in Paragraph 23 that the website was parked until June 2011.
Defendants deny any other allegation in Paragraph 23.
24. Defendants admit the allegations in Paragraph 24.
25. Defendants admit the allegations in Paragraph 25.
26. Defendants admit the allegations in Paragraph 26.
27. Defendants admit the allegations in Paragraph 27.
28. Defendants admit the allegation in Paragraph 28 that Robert
Mahoney, acting for BeautyMint, around August 7, 2011, posted on BeachMint’s STYLEMINT Facebook wall. Defendants admit the allegation in Paragraph 28 that BeautyMint, not Robert Mahoney personally, is acting deliberately to continue the efforts to build other Mint-related business lines. Defendants admit the allegation in Paragraph 28 that Defendant Mahoney began efforts to build various Mint-related business lines during the period before Plaintiff BeachMint acquired Defendant Gardner’s interest in the STYLEMINT trademark. Defendants deny any other allegation in Paragraph 28.
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8 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 9 of 46 Page ID #:298
29. Defendants admit the allegations in Paragraph 29.
30. Defendants admit the allegations in Paragraph 30.
31. Defendants admit the allegation in Paragraph 31 that Defendant
BeautyMint caused to be posted on BeautyMint’s MYBEAUTYMINT Facebook page a link to BeachMint’s press release on BeachMint’s engagement of Jessica Simpson to promote BeachMint’s products in the same manner that they have posted links to numerous other documents and websites from a wide variety of sources discussing developments in the beauty world. Defendants admit the allegation in Paragraph 31 that Defendant BeautyMint caused to be posted on BeautyMint’s MYBEAUTYMINT Facebook page a link to a YouTube video featuring a tutorial to obtain Jessica Simpson’s hair style in the same manner that Defendants daily post links to other YouTube videos featuring tutorials on various beauty strategies and techniques. Defendants deny any other allegation in Paragraph 31.
CLAIM I – INFRINGEMENT OF A TRADEMARK AND FALSE DESIGNATION OF ORIGIN
32. Defendants incorporate their responses to each and every allegation contained above with the same force and effect as if fully set forth herein.
33. Defendants deny the allegations in Paragraph 33.
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9 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 10 of 46 Page ID #:299
34. Defendants admit the allegations in Paragraph 34 that Plaintiff BeachMint filed its U.S. trademark application serial number 85/294,169 on April 13, 2011. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the allegation that it has constructive use of the BEAUTYMINT trademark as of April 13, 2011, and whether it used or made substantial preparations to use the BEAUTYMINT trademark for some or all of the services listed in its application, and therefore deny the same. Defendants admit that Plaintiff BeachMint owns and operates “BeautyMint” Twitter, Facebook, and YouTube accounts that advertise and promote its BEAUTYMINT trademark, products, and services. Defendants deny any other allegation in Paragraph 34.
35. Defendants deny the allegations in Paragraph 35.
36. Defendants admit the allegations in Paragraph 36.
37. Defendants admit the allegations in Paragraph 37.
38. Defendants admit the allegations in Paragraph 38.
39. Defendants admit the allegations in Paragraph 39 that the website
operated by BeautyMint, http://www.BeautyMint.biz, offers goods and services including online retail store services featuring fragrances, cosmetics, skin care, bath and beauty and hair care products and related tools and accessories. Defendants admit that BeautyMint began operating the website http://www.BeautyMint.biz website after the date that previous-Defendant April Gardner
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10 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 11 of 46 Page ID #:300
filed her application for the STYLEMINT trademark on April 8, 2011, which trademark rights are now owned by Plaintiff BeachMint, and after the date that Plaintiff filed its application for the BEAUTYMINT trademark on April 13, 2011. However, Robert Mahoney did use the term BEAUTYMINT in connection with goods and services including fragrances, cosmetics, skin care, bath and beauty and hair care products and related tools and accessories as least as far back as December 2009. Defendants deny any other allegations in Paragraph 39.
40. Defendants admit the allegation in Paragraph 40 that concurrent use of the term BEAUTYMINT by Defendants Mahoney and BeautyMint and by Plaintiff Beachmint is likely to cause confusion. Defendants deny the allegation in Paragraph 40 that Plaintiff’s rights in the term BEAUTYMINT are senior and superior to Defendants’ rights in the term BEAUTYMINT. Defendants deny the allegation in Paragraph 40 that concurrent use of the term BEAUTYMINT by Defendants Mahoney and BeautyMint and use of the term STYLEMINT by Plaintiff Beachmint is likely to cause confusion. Defendants deny any other allegations in Paragraph 40.
41. Defendants deny the allegations in Paragraph 41 that they have deliberately caused confusion by posting advertisements and promotions for products under Defendants marks on social media sites operated by Plaintiff BeachMint. Defendants deny the allegations in Paragraph 41 that their marks are
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11 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 12 of 46 Page ID #:301
infringing Plaintiff’s rights. Defendants admit the allegations in Paragraph 41 that Plaintiff BeachMint uses social media sites that it operates to promote its own BEAUTYMINT and STYLEMINT products. Defendants admit the allegations in Paragraph 41 that BeautyMint has caused information to be posted on social media sites operated by Plaintiff BeachMint that includes information on Defendant BeautyMint’s own websites and social media sites that would enable viewers of the social media sites operated by Plaintiff BeachMint to access websites operated by Defendant BeautyMint if they chose to do so. Defendants deny that either Defendant posted information on social media sites operated by Plaintiff BeachMint for the purpose of redirecting consumers to social media sites or websites operated by Defendants, including http://www.BeautyMint.biz. Defendants deny any other allegations in Paragraph 41.
42. Defendants deny the allegations in Paragraph 42 that they have deliberately caused confusion by posting information about BeachMint’s products on social media sites operated by Defendants. Defendants admit that Defendant BeautyMint caused to be posted on BeautyMint’s MYBEAUTYMINT Facebook page a link to BeachMint’s press release on BeachMint’s engagement of Jessica Simpson to promote BeachMint’s products in the same manner that Defendant BeautyMint daily post links to numerous other documents and websites from a wide variety of sources discussing developments in the beauty world. Defendants
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12 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 13 of 46 Page ID #:302
admit Defendant BeautyMint caused to be posted on BeautyMint’s MYBEAUTYMINT Facebook page a link to a YouTube video featuring a tutorial to obtain Jessica Simpson’s hair style in the same manner that Defendant BeautyMint daily post links to other YouTube videos featuring tutorials on various beauty strategies and techniques.
43. Defendants deny the allegations in Paragraph 43.
44. Defendants admit the allegations in Paragraph 44 that Plaintiff
BeachMint did not consent to or authorize Mahoney’s or BeautyMint’s adoption or commercial use of the term BEAUTYMINT. However, BeautyMint’s rights in the term BEAUTYMINT are senior or superior to those of Plaintiff BeachMint, and neither Robert Mahoney nor BeautyMint required consent or authorization to lawfully commercially use the term BEAUTYMINT.
45. Defendants admit the allegation in Paragraph 45 that Plaintiff BeachMint has no control over the composition or quality of the goods sold or services sold by Defedant BeautyMint. Defendants admit the allegation in Paragraph 45 that the Defendant BeautyMint’s BEAUTYMINT mark and Plaintiff BeachMint’s BEAUTYMINT mark are confusingly similar. Defendants deny the allegation that Defendant BeautyMint’s products are inferior to BeachMint’s products and that BeachMint’s goodwill is being harmed and is at risk of further
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13 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 14 of 46 Page ID #:303
damage by Defendants use of the confusingly similar BEAUTYMINT mark. Defendants deny any other allegation in Paragraph 45.
46. Defendants lack knowledge or information sufficient to form a belief as to the truth or falsity of the allegation in Paragraph 46 that the goodwill of Plaintiff BeachMint’s business under the BEAUTYMINT and STYLEMINT trademarks is of enormous value. Defendants deny the allegation in Paragraph 46 that they are infringing upon Plaintiff BeachMint’s STYLEMINT trademark. Defendants deny the allegation in Paragraph 46 that they are infringing upon Plaintiff BeachMint’s BEAUTYMINT trademark because Defendant BeautyMint’s rights in its BEAUTYMINT trademark are senior and superior. Defendants deny the allegation in Paragraph 46 that Plaintiff BeachMint will suffer irreparable harm and that Plaintiff BeachMint’s reputation and goodwill will be adversely affected. Defendants deny any other allegation in Paragraph 46.
47. Defendants admit the allegation in Paragraph 47 that Plaintiff BeachMint owns Gardner’s previous interest in the STYLEMINT trademark. Defendants admit the allegation in Paragraph 47 that BeautyMint, not Robert Mahoney personally, is acting deliberately to continue the efforts to build other Mint-related business lines. Defendants admit the allegation in Paragraph 47 that Defendant Mahoney began efforts to build various Mint-related business lines during the period before Plaintiff BeachMint acquired Defendant Gardner’s
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interest in the STYLEMINT trademark. Defendants deny all other allegation in Paragraph 47.
48. Defendants admit the allegation in Paragraph 48 that Defendant BeautyMint intends to continue its business operations using its trademark rights. Defendants admit the allegation in Paragraph 48 that Defendant BeautyMint is pursuing additional marks DESIGNERMINT and FASHIONMINT. Defendants deny the allegation in Paragraph 48 that their activities infringe upon the rights of Plaintiff BeachMint. Defendants deny the allegation in Paragraph 48 that the marks DESIGNERMINT and FASHIONMINT infringe the rights of Plaintiff BeachMint. Defendants deny any other allegation in Paragraph 48.
CLAIM II – UNFAIR COMPETITION UNDER STATE LAW
49. Defendants incorporate their responses to each and every allegation contained above with the same force and effect as if fully set forth herein.
50. Defendants deny the allegations in Paragraph 50.
51. Defendants deny the allegations in Paragraph 51.
52. Defendants deny the allegations in Paragraph 52.
53. Defendants deny the allegations in Paragraph 53.
54. Defendants deny the allegations in Paragraph 54.
55. Defendants deny the allegations in Paragraph 55.
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15 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 16 of 46 Page ID #:305
CLAIM III – COMMON LAW TRADEMARK INFRINGEMENT
56. Defendants incorporate their responses to each and every allegation contained above with the same force and effect as if fully set forth herein.
57. Defendants admit the allegation in Paragraph 57 that Plaintiff BeachMint is the owner of the STYLEMINT trademark and enjoys common law rights in that trademark in California and throughout the United States in connection with some or all of the services listed in its U.S. trademark application serial number 85/290,792 acquired from previous defendant Gardner. Defendants deny the allegation in Paragraph 57 that Plaintiff BeachMint is the owner of the BEAUTYMINT trademark and enjoys common law rights in that trademark in California and throughout the United States in connection with some or all of the services listed in its U.S. trademark application serial number 85/294,169. Defendants deny the allegation in Paragraph 57 that they are infringing Plaintiff’s marks. Defendants deny the allegation in Paragraph 57 that their rights are senior and superior to any rights that Defendants may claim.
58. Defendants deny the allegations in Paragraph 58. 59. Defendants deny the allegations in Paragraph 59.
FURTHER ANSWER AND AFFIRMATIVE DEFENSES
By way of further Answer and as affirmative defenses, Defendants Robert Mahoney and BeautyMint deny that they are liable to Plaintiff on any of the claims
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Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 17 of 46 Page ID #:306
alleges and deny that Plaintiff is entitled to injunctive relief, equitable relief, damages, attorneys’ fees, costs, pre-judgment interest or to any relief whatsoever, and states as follows:
FIRST AFFIRMATIVE DEFENSE (Failure to State a Claim)
60. The Complaint, on one or more counts set forth, fails to state a claim upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE (Innocent Infringement)
61. The claims made in the Complaint are barred, in whole or in part, because any infringement, if any, was innocent.
THIRD AFFIRMATIVE DEFENSE (Lack of Rights in Certain Trademarks)
62. Plaintiff BeachMint is not the owner of any rights in the trademarks BEAUTYMINT, FASHIONMINT, DESIGNERMINT, or MYSTYLEMINT.
FOURTH AFFIRMATIVE DEFENSE (Non-Infringement)
63. Defendants have not infringed under federal or state law any applicable trademark rights in which Plaintiff has rights.
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17 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 18 of 46 Page ID #:307
FIFTH AFFIRMATIVE DEFENSE (Unclean Hands)
64. Plaintiff’s claims with respect to some or all claims are barred by the doctrine of unclean hands.
SIXTH AFFIRMATIVE DEFENSE (Good Faith)
65. At all times, Defendants Robert Mahoney and BeautyMint acted in good faith in using all trademarks, without actual or constructive knowledge of any infringement or dilution of any valid mark of Plaintiff BeachMint, with good and sufficient legal cause and therefore cannot be subject to liability.
SEVENTH AFFIRMATIVE DEFENSE (Lack of Irreparable Harm)
66. Plaintiff BeachMint’s claims for injunctive relief are barred because Plaintiff cannot show that it will suffer any irreparable or immediate harm from BeautyMint’s or Robert Mahoney’s actions.
EIGHTH AFFIRMATIVE DEFENSE (First Use)
67. Defendant Robert Mahoney first used the BEAUTYMINT trademark at least as far back as December 2009 before Plaintiff used BEAUTYMINT, and Defendant Mahoney assigned the rights accrued to Defendant BeautyMint LLC.
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Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 19 of 46 Page ID #:308
NINTH AFFIRMATIVE DEFENSE (Certain Marks Not Confusingly Similar)
68. Defendant BeautyMint’s trademarks BEAUTYMINT, FASHIONMINT, DESIGNERMINT, and MYSTYLEMINT are not confusingly similar to the trademark STYLEMINT and the operation of social media sites or websites do not produce confusion or produce deception or mistake as to the source, affiliation or sponsorship of the social media site or website and the goods and services advertised thereon.
TENTH AFFIRMATIVE DEFENSE (Estoppel, Acquiescence, and Waiver)
69. Some or all of Plaintiff’s claims made in the Complaint may be barred by the equitable doctrines of estoppel, acquiescence, and waiver.
FURTHER AFFIRMATIVE DEFENSES
70. Defendants BeautyMint and Robert Mahoney reserve the right to file such additional defenses as may be appropriate upon completion of its investigation and discovery.
WHEREFORE, Defendants Robert Mahoney and BeautyMint, LLC, pray for judgment as follows:
1. That Plaintiff BeachMint, Inc., takes nothing by way of its Complaint;
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2. That the Complaint, and each and every one of its purported claims for relief be dismissed with prejudice;
3. That Defendants be awarded their costs incurred in this suit, including attorneys’ fees and expenses, to the extent permissible by law;
4. That Defendants be awarded such other and further relief as the Court deems just and proper.
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Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 21 of 46 Page ID #:310
COUNTERCLAIMS
Defendants and Counterclaimants BeautyMint, LLC (“BeautyMint”), and Robert Mahoney (“Mahoney”), for their counterclaims against Plaintiff and Counterdefendant BeachMint, Inc. (“BeachMint”), state as follows:
NATURE OF THE CASE
1. Robert Mahoney and BeautyMint bring this action for trademark infringement and false designation of origin under the Lanham Act, 15 U.S.C.
§§ 1051 et seq., for unfair competition under California and Florida state law, and for common law trademark infringement.
2. Plaintiff seeks injunctive relief with respect to its counterclaims. Plaintiff seeks monetary damages. Plaintiff also seeks attorneys’ fees.
PARTIES
3. Plaintiff and Counterdefendant BeachMint, Inc. (“BeachMint”) is a Delaware corporation having its principal place of business at 1411 5th St., Suite 200, Santa Monica, California 90401.
4. Defendant and Counterclaimant Robert Mahoney (“Mahoney”) is an individual residing at 5084 Coronado Ridge, Boca Raton, Florida 33486.
5. Defendant and Counterclaimant BeautyMint LLC is a Florida limited liability company having its principal place of business at 5084 Coronado Ridge, Boca Raton, Florida 33486.
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JURISDICTION AND VENUE
6. This Court has subject matter jurisdiction under 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331, 1338(a) and (b) as it arises under Acts of Congress related to trademarks. The Court has subject matter jurisdiction over the state statutory and common law claims pursuant to 28 U.S.C. § 1367 since the facts giving rise to those claims arise from the same common nucleus of operative facts.
7. This Court has personal jurisdiction over Plaintiff and Counterdefendant BeachMint because it has its principal place of business in this judicial district at 1411 5th St., Suite 200, Santa Monica, California 90401 and its has voluntarily subjected itself to the jurisdiction of this court by the brining of the original Complaint in this suit. Jurisdiction also is proper because Plaintiff and Counterdefendant has solicited and conducted business within the State of California and this judicial district and by doing so has purposely availed itself of the privileges of acting in the State of California. In addition, California’s long- arm statute, Cal. Code Civ. Pro. § 410.10, makes jurisdiction proper because Plaintiff and Counter-Defendant regularly does or solicits business in the State of California.
8. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(1) because Defendant BeachMint resides in this judicial district.
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FACTUAL ALLEGATIONS
9. As early as August 2007, previous defendant in this suit April Gardner (“Gardner”) began using the trademark STYLEMINT in connection with products and services that she provided to the public including selling and marketing of clothing items and providing fashion and style advice and information to the fashion industry in the United States via her website, http://www.stylemint.net.
10. Gardner also owned and operated several social media sites on the Internet including facebook.com/stylemint, twitter.com/stylemint, and foursquare.com/stylemint. She had thousands of follower on these sites and on her website http://www.stylemint.net who knew her and her business as being associated with the trademark STYLEMINT.
11. Gardner became known by her trademark and trade name STYLEMINT. The trademark acquired secondary meaning indentifying her company, business and services in the marketplace. Gardner thereby developed common law trademark rights in STYLEMINT dating back to August 2007.
12. In 2008 and 2009 Gardner and Defendant Robert Mahoney became acquainted socially, and Mahoney learned of Gardner’s work via her STYLEMINT website and social media sites.
13. Mahoney was intrigued during this same period was considering starting a business to sell a range of beauty products to nail and beauty salons.
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After investigating the beauty supply business from September through November of 2009, Mahoney began in November 2009 visiting salons in South Florida with a display case of products including nail polishes, manicure kits, hair blowers and other products. Inspired by Gardner’s STYLEMINT in her fashion blog and online sales of fashion-related merchandise, Mahoney selected BEAUTYMINT as the name under which he approached these salons with his products.
14. After visiting salons throughout late November and early December of 2010, Mahoney in mid-December produced an eleven-page brochure to support his sales visits. In large letters across the front of the brochure (see Exhibit 1) was written in bright two-inch-high red letters “HAPPY NEW YEAR” with “2010” written vertically in white next to it. In the upper right hand corner of the brochure in black was written “BEAUTYMINT”. At the bottom was the message:
PLEASE CALL YOUR BEAUTYMINT REP ROBERT MAHONEY AT 954-290-9496 TO PLACE ORDERS!
ALL FEATURED BEAUTYMINT PRODUCTS IN THIS FLYER EXPIRE ON 01/15/2010
BEAUTYMINT
5084 CORONADO RIDGE
BOCA RATON, FLORIDA 33486
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15. Using the BEAUTYMINT brochure and the accompanying products, Mahoney continued to visit nail and beauty salons in late December 2009 and early January 2010. Between November and January, Mahoney visited several hundred Florida salons.
16. After two months of this effort, Mahoney determined that traveling by foot from salon to salon would not be a successful strategy for selling beauty supplies because it was too difficult to compete with established suppliers. However, realizing that individual cosmetologists were interested in the products he was selling, he began to consider alternative means of trying to reach individual purchasers.
17. After pondering the problem for several months, Mahoney determined that a BEAUTYMINT website making sales directly to individuals would be the best way to proceed for him to reach a broad market. By late fall 2010, Mahoney was researching how to do website designs under the BEAUTYMINT name and who could provide them. By March 2010, he was researching how to become set up an affiliate relationship with cosmetics companies to do online sales as BEAUTYMINT and the website and legal requirements that these companies demanded.
18. To meet these requirements, Mahoney on April 28, 2011, registered the http://www.BeautyMint.biz domain name for his website and entered into an
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agreement with the domain name provider GoDaddy to begin website development. The website was completed in early May 2011 and went live on or about May 10, 2011. After filing the trademark application, Mahoney decided to have the website redesigned, and it was relaunched in June 2011 and has continued in operation ever since. Since this period Mahoney also has operated an active social media account on Facebook under the name BEAUTYMINT.
19. On May 13, 2011, Mahoney filed a trademark application with the USPTO declaring the use of the BEAUTYMINT trademark for online retail store services of the type he had been planning and working on since 2010 as a more effective way of selling cosmetics and beauty products he had begun marketing under the BEAUTYMINT name at least as early as December 2009. The USPTO assigned Mahoney’s BEAUTYMINT application serial number 85/319,925.
20. On May 18, 2011, Mahoney completed the process for creating the Florida limited liability company BeautyMint LLC with himself as the member manager and owner. At about the same time, Mahoney transferred his interest in the BEAUTYMINT trademark, with application serial number 85/319,925 to BeautyMint LLC.
21. Eighteen months after Mahoney first used BEAUTYMINT in commerce, BeachMint on April 13, 2011, filed a trademark application with USPTO declaring an intent to use the BEAUTYMINT trademark for an online
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marketplace for cosmetics and related products. The USPTO assigned BeachMint’s application serial number 85/294,169. In a similar fashion, Plaintiff and Counterdefendant BeachMint on the same day filed an application with USPTO, serial number 85/294,164, declaring an intent to use the same STYLEMINT trademark that it knew Gardner had been using for nearly four years.
22. On September 1, 2011, an article appeared in the Women’s Wear Daily newspaper to announce that celebrity Jessica Simpson would be involved with BeachMint’s products and services under the BEAUTYMINT name. BeachMint then issues a formal press release announcing these developments on September 7, 2011.
CLAIM I – INFRINGEMENT OF A TRADEMARK AND FALSE DESIGNATION OF ORIGIN
(15 U.S.C. § 1125(a))
23. Defendants and Counterclaimants repeat and incorporate here the allegations set forth in paragraphs 1 through 22 above.
24. BeautyMint LLC is the owner of the BEAUTYMINT trademark.
25. BeautyMint has actual use of its BEAUTYMINT trademark as of a
date at least as early as mid-December 2009, the date when Robert Mahoney first used BEAUTYMINT in commerce.
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26. Mahoney filed a trademark application with the USPTO on May 13, 2011, for BEAUTYMINT for online retail store services of the type he had been planning and working on since 2010 as a more effective way of selling cosmetics and beauty products he had begun marketing under the BEAUTYMINT name at least as early as December 2009. The USPTO assigned Mahoney’s BEAUTYMINT application serial number 85/319,925.
27. Robert Mahoney assigned the rights in BEAUTYMINT to BeautyMint LLC on or about May 16, 2011. Since the assignment of BEAUTYMINT to BeautyMint, it has continued to use the BEAUTYMINT trademark in marketing and sales activities including online marketing and sales activities as described in the trademark application.
28. BeautyMint’s BEAUTYMINT trademark is distinctive and distinguishes BeautyMint’s products and services from those of its competitors.
29. BeautyMint has priority in the BeautyMint trademark over Plaintiff and Counterdefendant BeachMint’s later use of the mark.
30. Plaintiff and Counterdefendant BeachMint’s use of the term BEAUTYMINT is likely to cause confusion with BeautyMint’s rights in its BEAUTYMINT trademark.
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31. Plaintiff and CounterDefendant BeachMint has deliberately caused confusion by their announcement that they will launch a line of products with Jessica Simpson under the name BEAUTYMINT.
32. BeautyMint did not consent to or authorize Plaintiff and Counterdefendant BeachMint’s adoption or commercial use of the term BeautyMint for BeachMint’s goods and services.
33. BeautyMint has no control over the composition or quality of the goods sold or services provided under the confusingly similar BEAUTYMINT mark by Plaintiff and Counterdefendant BeachMint. As a result, to the extent that Plaintiff and Counterdefendant BeachMint’s products and services are inferior to BeautyMint’s valuable goodwill, developed at great expense and effort by BeautyMint, is being harmed by Plaintiff and Counterdefendant BeachMint’s unauthorized use of the confusingly similar mark, and is at risk of further damage.
34. BeautyMint’s goodwill will suffer irreparable harm should Plaintiff and Counterdefendant BeachMint’s infringement be allowed to continue.
35. BeachMint’s conduct is willful.
36. Plaintiff and Counterdefendant BeachMint’s infringement of
BeautyMint’s rights will continue if it is not enjoined.
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CLAIM II – UNFAIR COMPETITION UNDER STATE LAW (Florida Trade, Commerce, Investments and Solicitations §§ 501.210 et seq.)
37. Defendants and Counterclaimants repeat and incorporate here the allegations set forth in paragraphs 1 through 36 above.
38. BeautyMint’s trademark BEAUTYMINT is wholly associated with BeautyMint.
39. BeautyMint is a Florida limited liability corporation, and Florida law protects BeautyMint’s trademarks.
40. Plaintiff and Counterdefendant BeachMint’s use of BEAUTYMINT is confusingly similar to BeautyMint’s use of the mark and constitutes unfair competition because customers and would-be customers are likely to be confused about the origin of products and services under the similar marks in the marketplace and false designations concerning the origin of these products and services.
41. Plaintiff and Counterdefendant BeachMint’s use of BEAUTYMINT constitutes unfair competition in violation of Florida Trade, Commerce, Investments and Solicitations Laws §§ 501.210 et seq.
42. Plaintiff and Counterdefendant BeachMint’s acts were intentionally and knowingly undertaken and were directed toward perpetuating a business that
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would compete unfairly with BeachMint and were done with a willful disregard for BeautyMint’s rights.
43. Plaintiff and Counterdefendant BeachMint’s acts were done fraudulently, oppressively, and maliciously.
44. Because of Plaintiff and Counterdefendant BeachMint’s actions, BeautyMint has and will sufer irreparable injury unless enjoined. Such injury is compensable by monetary damages.
CLAIM III – COMMON LAW TRADEMARK INFRINGEMENT
45. Defendants and Counterclaimants repeat and incorporate here the allegations set forth in paragraphs 1 through 44 above.
46. BeautyMint is the owner of the BEAUTYMINT trademark and enjoys common law rights in that trademark in Florida and throughout the United States in connection with the services listed in its U.S. trademark application serial number 85/319,925.
47. BeautyMint’s rights are senior and superior to any rights that Plaintiff and Counterdefendant BeachMint may claim with respect to their infringing mark.
48. Plaintiff and Counterdefendant BeachMint’s use of the confusingly similar BEAUTYMINT mark in commerce is intentionally designed to confuse consumers and would-be consumers as to the source of Plaintiff and Counterdefendant BeachMint’s products and services by mimicing BeautyMint’s
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use of a similar mark in a way that will cause purchasers to associate such products with, as originating with, or as approved by BeautyMint to BeautyMint’s detriment.
49. Plaintiff and Counterdefendant BeachMint’s infringement will continue unless enjoined.
PRAYER FOR RELIEF
WHEREFORE, BeautyMint and Robert Mahoney pray that this Court:
A. Issues an order permanently enjoining Plaintiff and Counterdefendant BeachMint, and their officers, directors, agents, servants, attorneys, and employees and all other persons acting in concert with them, from: (1) using BEAUTYMINT; and/or (2) representing directly or indirectly in any form or manner whatsoever that any product or service it provides is associated with or approved by BeautyMint when, in fact, it is not;
B. Issues an order directing Plaintiff and Counterdefendant BeachMint to file with this Court and to serve on Defendants and Counterclaimants within thirty (30) days after service on Plaintiff and Counterdefendant BeachMint, or such extended period as the Court may direct, a report in writing, under oath, setting forth in detail the manner and form in which Defendants have complied with the injunction and order of the Court;
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C. Issues an order directing the Commissioner of Trademarks of the United States Patent and Trademark Office to strike Defendants’ trademark applications for BEAUTYMINT;
D. Awards BeautyMint and Mahoney such other relief as the Court may deem just and proper, including costs, damages, and attorneys’ fees.
Dated: September 30, 2011
Respectfully submitted, /s/
Lorraine Aguilar
LORRAINE AGUILAR, ATTORNEY AT LAW
John Humphrey
THE HUMPHREY LAW FIRM
(PRO HAC VICE ADMISSION ANTICIPATED)
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EXHIBIT 1
35 Answer, Counterclaim and Affirmative Defenses
Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 35 of 46 Page ID #:324

Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 36 of 46 Page ID #:325

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Case 2:11-cv-05374-PSG -JCG Document 35 Filed 09/30/11 Page 46 of 46 Page ID #:335
CERTIFICATE OF FILING AND SERVICE
I hereby certify that on this 30th day of September, 2011, I will electronically serve the foregoing
ANSWER AND COUNTERCLAIM AND AFFIRMATIVE DEFENSES OF DEFENDANTS ROBERT MAHONEY AND BEAUTYMINT LLC
upon the following counsel by filing the foregoing with the clerk of the court via the CM/ECF system of the U.S. District Court for the Central District of California, which will send notification to the following counsel:
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Daniel Cislo, Esq. (Bar No. 125,378) Sean D. O’Brien (Bar No. 238,418) Cislo & Thomas LLP
1333 2nd Street, Suite 500
Santa Monica, CA 90401-4110 Phone: (310) 451-0647
Fax: (310) 394-4477
/s/
LORRAINE AGUILAR (SBN 262679) LAW OFFICE OF LORRAINE AGUILAR P.O. Box 3662
Dana Point, CA 92629
Phone: (949) 690-8129
Email: LAguilar.Law@gmail.com
34 Answer, Counterclaim and Affirmative Defenses
I tried the Beauty Mint product off a deal with plumdistrict.com. I was so excited, until 3 days later. I had huge blemishes on my previously unblemished skin. my skin was blotchy, red and in horrible shape. I stopped using the product and within 3 days, clear again. I called Beauty Mint and they refused to refund my money. So did Plumdistrict.com. They say BM owes me. So not only do I have a nasty face in my Xmas pix, I’m out the cash for a nasty product that no one stands behind.