Case 0:09-cv-61696-JIC Document 6 Entered on FLSD Docket 11/24/2009 Page 1 of 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA
CASE NO. 09-CV-61696-COHN-SELTZER

AROUND THE CLOCK A/C SERVICE, LLC,

d/b/a AIR AROUND THE CLOCK,

Plaintiff,

vs.

ALL YEAR COOLING AND HEATING, INC.

d/b/a ALL YEAR COOLING, a Florida corporation,
and THOMAS SMITH, an individual,

Defendants.
_______________________________________/

DEFENDANT ALL YEAR COOLING AND HEATING, INC.’S

ANSWER AND AFFIRMATIVE DEFENSES TO
COUNTS I AND VI OF PLAINTIFF’S VERIFIED COMPLAINT

Defendant, All Year Cooling and Heating, Inc. (“AYCH” or “Defendant”), by and

through undersigned counsel, hereby file its answer and affirmative defenses to Counts I and VI

of Plaintiff’s Verified Complaint and state as follows:

1. Defendant admits that the Court has jurisdiction over claims under the Lanham

Act Section 43(a), 15 U.S.C. §1125(a), the Florida Registrations and Protections of Trademark

Act, §495, et. seq. of the Florida Statutes, the Florida Deceptive and Unfair Trade Practices Act,

501, et. seq. of the Florida Statutes and infringement of state and common law trademark rights

and disparagement but Defendants denies that said claims are well pleaded and denies any

liability for such claims.

2. Defendant admits the allegations contained in paragraph 2 of Plaintiff’s Verified

Complaint.

3. Defendant admits the Court has discretion to exercise supplemental jurisdiction

pursuant to 28 U.S.C. § 1367 for the non-federal claims. Found at:

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4. Defendant is without sufficient knowledge as to the truth of the allegations

contained in paragraph 4 of Plaintiff’s Verified Complaint, and therefore denies same.

5. Defendant admits the allegations contained in paragraph 5 of Plaintiff’s Verified

Complaint.

6. Defendant admits the allegations contained in paragraph 6 of Plaintiff’s Verified

Complaint.

7. Defendant does not contest venue, but denies the allegations contained in

paragraph 7 of Plaintiff’s Verified Complaint that any violations of the law occurred in this

judicial district or anywhere.

8. Defendant admits the allegations contained in paragraph 8 of Plaintiff’s Verified

Complaint.

9. Defendant admits the allegations contained in paragraph 9 of Plaintiff’s Verified

Complaint.

10. Defendant admits the allegations contained in paragraph 10 of Plaintiff’s Verified

Complaint.

11. Defendant is without sufficient knowledge as to the truth of the allegations

contained in paragraph 11 of Plaintiff’s Verified Complaint, and therefore denies same.

12. Defendant admits the allegations contained in paragraph 12 of Plaintiff’s Verified

Complaint.

13. Defendant admits the allegations contained in paragraph 12 of Plaintiff’s Verified

Complaint.

14. Defendant admits the allegations contained in paragraph 14 of Plaintiff’s Verified

Complaint.

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15. Defendant is without sufficient knowledge as to the truth of the allegations

contained in paragraph 15 of Plaintiff’s Verified Complaint, and therefore denies same.

16. Defendant is without sufficient knowledge as to the truth of the allegations

contained in paragraph 16 of Plaintiff’s Verified Complaint, and therefore denies same.

17. Defendant is without sufficient knowledge as to the truth of the allegations

contained in paragraph 17 of Plaintiff’s Verified Complaint, and therefore denies same.

Defendant admits that Exhibit A purports to be a copy of Florida Registration No.

T08000000131.

18. Defendant is without sufficient knowledge as to the truth of the allegations

contained in paragraph 18 of Plaintiff’s Verified Complaint, and therefore denies same.

Defendant admits that Exhibit B purports to be a copy of Florida Registration No.

T98000000693.

19. Defendant denies that Plaintiff has acquired common law trademark rights to the

purported “YOUR WIFE IS HOT” mark. Defendant is without sufficient knowledge as to the

truth of the remaining allegations contained in paragraph 19 of Plaintiff’s Verified Complaint,

and therefore denies same. Defendant admits that Exhibit C purports to be a copy of an

advertisement used by Plaintiff.

20. Defendant is without sufficient knowledge as to the truth of the allegations

contained in paragraph 20 of Plaintiff’s Verified Complaint, and therefore denies same.

Defendant admits that Exhibit D purports to be a copy of Florida Registration No.

T09000000905.

21. Defendant is without sufficient knowledge as to the truth of the allegations

contained in paragraph 21 of Plaintiff’s Verified Complaint, and therefore denies same.

22. Defendant is without sufficient knowledge as to the truth of the allegations

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contained in paragraph 22 of Plaintiff’s Verified Complaint, and therefore denies same.

23. Defendant admits that in August, 2009, Defendant AYC&H began an advertising

campaign using the advertising copy “YOUR WIFE IS NOT HOT! because you called ALL

YEAR COOLING to replace your A/C.” Defendant denies the allegations contained in

paragraph 23 of Plaintiff’s Verified Complaint that said advertising campaign was at the

direction of Defendant Smith.

24. Defendant admits the allegations contained in paragraph 24 of Plaintiff’s Verified

Complaint. Defendant admits that Exhibit E purports to be a copy of an advertisement used by

Defendant AYH&C.

25. Defendant admits the allegations contained in paragraph 25 of Plaintiff’s Verified

Complaint that Defendant AYH&C’s advertisement lists a phone number (888-Wife-Not-Hot)

and website address (www.WifeNotHot.com).

26. Defendant admits the allegations contained in paragraph 26 of Plaintiff’s Verified

Complaint.

27. Defendant admits the allegations contained in paragraph 27 of Plaintiff’s Verified

Complaint.

28. Defendant admits the allegations contained in paragraph 28 of Plaintiff’s Verified

Complaint that on or about October 6, 2009, an advertisement for Defendant AYH&C appeared

in the Davie and Southwest Ranches Town Times. Defendant is without sufficient knowledge as

to the truth of the remaining allegations contained in paragraph 28 of Plaintiff’s Verified

Complaint, and therefore denies same.

29. Defendant admits the allegations contained in paragraph 29 of Plaintiff’s Verified

Complaint. Defendant admits that Exhibit F purports to be a copy of an advertisement used by

Defendant AYH&C.
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30. Defendant denies the allegations contained in paragraph 30 of Plaintiff’s Verified

Complaint.

31. Defendant re-alleges and incorporates by reference its responses to paragraphs 1

through 29 of Plaintiff’s Verified Complaint.

32. Defendant denies the allegations contained in paragraph 32 of Plaintiff’s Verified

Complaint.

33. Defendant denies the allegations contained in paragraph 33 of Plaintiff’s Verified

Complaint.

34. Defendant denies the allegations contained in paragraph 33 of Plaintiff’s Verified

Complaint.

35. Count II of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

36. Count II of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss.

37. Count II of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

38. Count II of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

39. Count II of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

40. Count II of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

41. Count III of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

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42. Count III of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

43. Count III of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

44. Count III of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

45. Count IV of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

46. Count IV of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

47. Count IV of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

48. Count IV of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

49. Count V of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

50. Count V of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

51. Defendant re-alleges and incorporates by reference their responses to paragraphs

1 through 49 of Plaintiff’s Verified Complaint.

52. Defendant denies the allegations contained in paragraph 52 of Plaintiff’s Verified

Complaint.

53. Defendant denies the allegations contained in paragraph 53 of Plaintiff’s Verified

Complaint.
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54. Defendant denies the allegations contained in paragraph 54 of Plaintiff’s Verified

Complaint.

55. Defendant denies the allegations contained in paragraph 55 of Plaintiff’s Verified

Complaint.

56. Defendant denies the allegations contained in paragraph 56 of Plaintiff’s Verified

Complaint.

57. Count VII of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

58. Count VII of Plaintiff’s Verified Complaint is subject to Defendants’ Motion to

Dismiss filed simultaneously herewith.

AFFIRMATIVE DEFENSES

First Affirmative Defense

1. Plaintiff’s claims are barred because the purported mark “YOUR WIFE IS HOT”

does not serve as a source identifier or trademark and does not serve any purpose as an indicia of

origin.

Second Affirmative Defense

2. Plaintiff’s purported mark “YOUR WIFE IS HOT” is not protectable or valid as it

is merely descriptive of Plaintiff’s services.

Third Affirmative Defense

3. Plaintiff’s purported mark “YOUR WIFE IS HOT” is not protectable or valid as it

is not inherently distinctive and has not acquired secondary meaning.

Fourth Affirmative Defense

4. Plaintiff’s claims are barred, in whole or in part, because Defendant’s conduct

constitutes fair use.

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Fifth Affirmative Defense

5. Plaintiff’s claims are barred, in whole or in part, because Defendant’s conduct at

all time was justified.

Sixth Affirmative Defense

6. Plaintiff’s claims are barred, in whole or in part, due to third party use of the

advertising copy “Your Wife is Hot, Better Get Your A/C Fixed” to describe their air

conditioning repair services prior to Plaintiff’s use of the alleged mark “YOUR WIFE IS HOT.”

Seventh Affirmative Defense

7. Plaintiff’s claims are barred, in whole or in part, because Defendant’s conduct

does not result in a likelihood of confusion.

Eight Affirmative Defense

8. Plaintiff’s claims are barred, in whole or in part, because Plaintiff has not

sustained an actual injury as a result of Defendant’s conduct.

Respectfully submitted,

Dated: November 24, 2009 By: s/Meredith Frank Mendez

John Cyril Malloy, III
Florida Bar No. 964,220
Meredith Frank Mendez
Florida Bar No. 502,235
MALLOY & MALLOY, P.A.
2800 S.W. Third Avenue
Miami, Florida 33129
Telephone (305) 858-8000
Facsimile (305) 858-0008
Email: mmendez@malloylaw.com

and

E.J. Generotti
Florida Bar No. 244,805
Marc Silverman
Florida Bar No. 144,444 Found at:
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Case 0:09-cv-61696-JIC Document 6 Entered on FLSD Docket 11/24/2009 Page 9 of 10

FRANK, WEINBERG & BLACK, P.L.

7805 Southwest Sixth Court
Plantation, Florida 33324
Telephone (954) 474-8000
Facsimile (954) 474-9850

Attorneys for Defendants,

All Year Cooling and Heating, Inc. and
Thomas Smith

CERTIFICATE OF SERVICE

I hereby certify that on November 24, 2009 I electronically filed the foregoing document
with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being
served this day on all counsel of record or pro se parties identified on the attached Service List in
the manner specified, either via transmission of Notices of Electronic Filing generated by
CM/ECF or in some other authorized manner for those counsel or parties who are not authorized
to receive electronically Notice of Electronic Filing.

s/Meredith Frank Mendez

Meredith Frank Mendez

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SERVICE LIST

AROUND THE CLOCK A/C SERVICE, LLC,

v.
ALL YEAR COOLING AND HEATING, INC. and THOMAS SMITH
CASE NO. 08-22185-CIV-COHN
United States District Court, Southern District of Florida

Adam Skolnik John Cyril Malloy, III

adamskolnikesq@aol.com jcmalloy@malloylaw.com
Florida Bar No. 728,081 Florida Bar No. 964,220
ADAM I. SKOLNIK, P.A. Meredith Frank Mendez
8676 Griffin Road mmendez@malloylaw.com
Cooper City, FL 33328 Florida Bar No. 502,235
Telephone: (561) 265-1120 MALLOY & MALLOY, P.A.
Facsimile: (561) 265-1828 2800 S.W. 3rd Avenue
Miami, Florida 33129
and Telephone: (305) 858-8000
Facsimile: (305) 858-0008
Miriam Richter
mricipatty@aol.com and
Florida Bar No. 44,831
MIRIAM RICHTER, E.J. Generotti
ATTORNEY AT LAW, P.L. egenerotti@fwblaw.net
3389 Sheridan Street, # 103 Florida Bar No. 244,805
Hollywood, FL 33021 Marc Silverman
Telephone: (954) 240-8819 msilverman@fwblaw.net
Facsimile: (954) 961-3585 Florida Bar No. 144,444
FRANK, WEINBERG & BLACK, P.L.
Attorneys for Plaintiff 7805 Southwest Sixth Court
Notices of Electronic Filing Plantation, Florida 33324
generated by CM/ECF Telephone: (954) 474-8000
Facsimile: (954) 474-9850

Attorney for Defendants

Notices of Electronic Filing generated by
CM/ECF

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