Although it was filed over a week ago, no-one seems to have picked up on Sandra Brodsky’s answer and counterclaim in the infamous Naked Cowboy litigation.
The answer itself is somewhat, em, bare (the first six pages more or less repeat the refrain that the Defendant (who is also known as Sandra Kane) either “lacks sufficient knowledge” or denies the pleading) but there are a few tidbits to hint at where the dispute might be going.
Ms. Brodsky’s answer asserts a variety of affirmative defenses, namely:
- “the applicable statute(s) of limitations”;
- the doctrine of laches;
- the doctrine of estoppel;
- the doctrine of acquiescence;
- the doctrine of waiver;
- the doctrine of unclean hands [don’t go there];
- the doctrine of fair use;
- the free speech provisions of the First Amendment; and
- the doctrine of parody.
She also admits to making obscene gestures while performing, and says she has been performing nude or semi-nude for over four decades (previous reports stated that she was 37 years old, which would make her younger than the Naked Cowboy (aka Robert Burck, who briefly (naturally) entered the race for Mayor of New York last year)).
The counterclaim is interesting too. There are the usual arguments that the Defendant’s acts are outside the statute and even if they aren’t that the registration is invalid. According to the counterclaim, “Naked Cowgirl”:
“is a descriptive term used fairly and in good faith in its primary descriptive sense.”
Furthermore, the Defendant:
“denies that she has used Naked Cowgirl as a trademark or that the NAKED COWBOY mark is capable of functioning as a trademark. [The NAKED COWBOY registration] is invalid because it is generic and/or descriptive without secondary meaning.”
But in a shot below the belt, Sandra Brodsky accuses the Naked Cowboy of extortion and, separately, says his trademark registration was “fraudulently obtained”; she alleges that at the time of his application he had not been using the mark in respect of several of the services applied for and that he must have known that fact when he claimed his application was supported by his “actual use” of the mark in respect of those services.
Finally, Ms. Brodsky has demanded a jury trial. No doubt neither of them will be intimidated by a room full of strangers.
The case is Naked Cowboy v. Brodsky, case 1:10-cv-05539-VM.
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