Vous êtes sur la page 1sur 26

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA


LAFAYETTE DIVISION

OPPORTUNITY KNOCKS, INC. )


d/b/a CARTOONMAPS.COM, )
)
Plaintiff )
)
v. ) Case No. 4:08-CV-0072-AS-APR
)
BRANDON MAXWELL, )
BRIDGETTE MAXWELL and )
MAXWELL MAPS LLC, )
)
Defendants. )

BRIDGETTE MAXWELL )
)
Counterclaim/Third Party Plaintiff )
)
v. )
)
OPPORTUNITY KNOCKS, INC. )
d/b/a CARTOONMAPS.COM and )
MARK PFLUG, )
)
Counterclaim Defendant and )
Third Party Defendant. )

DEFENDANTS' FIRST AMENDED ANSWER TO COMPLAINT AND DEFENSES AND


COUNTERCLAIM AND THIRD PARTY CLAIM

Defendants Brandon Maxwell, Bridgette Maxwell and Maxwell Maps LLC (collectively,

"Defendants"), for their First Amended Answer to the Plaintiff Opportunity Knocks, Inc. d/b/a

Cartoon maps.com's ("OKI") Complaint, which they file pursuant to Federal Rule of Civil

Procedure 15 as a matter of right, state:

PARTIES

1. Defendants lack knowledge or information sufficient to form a belief as to the

truth of the allegations contained in paragraph 1 of plaintiff's complaint and therefore deny.
2. Defendants admit that Brandon Maxwell is an individual resident of Colorado,

residing at 580 Haverly Street, Crested Butte Colorado, 81224, that Brandon is a member of

Maxwell Maps LLC, and that Maxwell Maps LLC sold graphical city maps and promotional

items related to graphical city maps. Defendants deny all other remaining allegations of

paragraph 2 of plaintiff's complaint.

3. Defendants admit that Bridgette Maxwell is an individual resident of Colorado,

residing at 580 Haverly Street, Crested Butte Colorado, 81224, that Bridgette is a member and

the manager of Maxwell Maps LLC, and that Maxwell Maps LLC sold graphical city maps and

promotional items related to graphical city maps. Defendants deny all other remaining

allegations of paragraph 3 of plaintiff's complaint.

4. Defendants admit that Maxwell Maps LLC is a Colorado Limited Liability

Company with a principal place of business at 580 Haverly Street, Crested Butte, Colorado,

81224, and that Maxwell Maps LLC designed, printed and sold graphical city maps and

associated materials and promotional items. Defendants deny all other remaining allegations

contained in paragraph 4 of the plaintiff's complaint.

JURISDICTION AND VENUE

5. Defendants admit that plaintiff purports to bring claims arising under the

copyright laws of the United States, 17 U.S.C. §§ 101, et seq., the Lanham Act, 15 U.S.C. §§

1051, et seq., and the laws of the State of Indiana. Defendants deny that plaintiff's claims have

any merit and deny all other remaining allegations contained in paragraph 5 of the plaintiff's

complaint.

-2-
6. Defendants admit that this Court has subject matter jurisdiction over this action.

Defendants deny that plaintiff's claims have any merit and deny all other remaining allegations

contained in paragraph 6 of the plaintiff's complaint.

7. Defendants deny the allegations contained in paragraph 7 of the plaintiff's

complaint and further state that in its "supplement" filing, the plaintiff submitted a contract with

a forged signature which plaintiff purports to be that of Bridgette Maxwell.

8. Defendants deny the allegations contained in paragraph 8 of the plaintiff's

complaint.

COUNT I

COPYRIGHT INFRINGEMENT

9. Defendants hereby incorporate their responses to the allegations of paragraphs 1

through 8 of plaintiff's complaint as if fully set forth herein.

10. Defendants admit that in 2005, Brandon Maxwell and Bridgette Maxwell hired

Opportunity Knocks, Inc. ("OKI") to assist in the creation of a graphical city map for Cheyenne,

Wyoming, and that in 2006 Bridgette Maxwell hired OKI to assist in the creation of a graphical

city map for Crested Butte, Colorado. Defendants deny all other allegations contained in

paragraph 10 of the plaintiff's complaint.

11. Defendants deny the allegations contained in paragraph 11 of the Complaint and

state that an incomplete copy of the Crested Butte, Colorado, Summer 2006 Winter 2007

graphical city map is attached to plaintiff's complaint as Exhibit 1. Defendants deny all other

allegations contained in paragraph 11 of the plaintiff's complaint.

12. Defendants admit that the Crested Butte, Colorado, Summer 2006 Winter 2007

graphical city map was first published on or before July 31, 2006. Defendants deny all other

allegations contained in paragraph 12 of the plaintiff's complaint.

-3-
13. Defendants deny the allegations contained in paragraph 13 of the plaintiff's

complaint and state that plaintiff acted fraudulently in seeking copyright registration of the

Crested Butte, Colorado, Summer 2006 Winter 2007 graphical city map.

14. Defendants deny the allegations contained in paragraph 14 of the Complaint and

state that an incomplete copy of the Crested Butte, Colorado, Summer 2007 Winter 2008

graphical city map is attached to plaintiff's complaint as Exhibit 2.

15. Defendants admit that the Crested Butte, Colorado, Summer 2007 Winter 2008

graphical city map was first published in late June 2007. Defendants deny all other allegations

contained in paragraph 15 of the plaintiff's complaint.

16. Defendants deny the allegations contained in paragraph 16 of the plaintiff's

complaint and state that plaintiff acted fraudulently in seeking copyright registration of the

Crested Butte, Colorado, Summer 2007 Winter 2008 graphical city map.

17. Defendants deny the allegations contained in paragraph 17 of the plaintiff's

complaint.

18. Defendants deny the allegations contained in paragraph 18 of the plaintiff's

complaint.

19. Defendants deny the allegations contained in paragraph 19 of the plaintiff's

complaint.

20. Defendants deny the allegations contained in paragraph 20 of the plaintiff's

complaint.

21. Defendants deny the allegations contained in paragraph 21 of the plaintiff's

complaint.

-4-
22. Defendants deny the allegations contained in paragraph 22 of the plaintiff's

complaint.

COUNT II

COPYRIGHT INFRINGEMENT

23. Defendants hereby incorporate their responses to the allegations of paragraphs 1

through 22 of plaintiff's complaint as if fully set forth herein.

24. Defendants deny the allegations contained in paragraph 24 of the plaintiff's

complaint.

25. Defendants admit that the Telluride, Colorado, Summer 2007 Winter 2008

graphical city map was first published in late June 2007, and state that an incomplete copy of the

Telluride, Colorado, Summer 2007 Winter 2008 graphical city map is attached to plaintiff's

complaint as Exhibit 3. Defendants deny all other allegations contained in paragraph 25 of the

plaintiff's complaint.

26. Defendants deny the allegations contained in paragraph 26 of the plaintiff's

complaint and state that plaintiff acted fraudulently in seeking copyright registration of the

Telluride, Colorado, Summer 2007 Winter 2008 graphical city map.

27. Defendants deny the allegations contained in paragraph 27 of the plaintiff's

complaint.

28. Defendants deny the allegations contained in paragraph 28 of the plaintiff's

complaint.

29. Defendants deny the allegations contained in paragraph 29 of the plaintiff's

complaint.

30. Defendants deny the allegations contained in paragraph 30 of the plaintiff's

complaint.

-5-
31. Defendants deny the allegations contained in paragraph 31 of the plaintiff's

complaint.

COUNT III

UNFAIR COMPETITION UNDER § 43(a) OF THE LANHAM ACT

32. Defendants hereby incorporate their responses to the allegations of paragraphs 1

through 31 of plaintiff's complaint as if fully set forth herein.

33. Defendants deny the allegations contained in paragraph 33 of the plaintiff's

complaint.

34. Defendants deny the allegations contained in paragraph 34 of the plaintiff's

complaint.

35. Defendants deny the allegations contained in paragraph 35 of the plaintiff's

complaint.

36. Defendants deny the allegations contained in paragraph 36 of the plaintiff's

complaint.

37. Defendants deny the allegations contained in paragraph 37 of the plaintiff's

complaint.

38. Defendants deny the allegations contained in paragraph 38 of the plaintiff's

complaint.

39. Defendants deny the allegations contained in paragraph 39 of the plaintiff's

complaint.

40. Defendants deny the allegations contained in paragraph 40 of the plaintiff's

complaint.

41. Defendants deny the allegations contained in paragraph 41 of the plaintiff's

complaint.

-6-
42. Defendants deny the allegations contained in paragraph 42 of the plaintiff's

complaint.

43. Defendants deny the allegations contained in paragraph 43 of the plaintiff's

complaint.

44. Defendants deny the allegations contained in paragraph 44 of the plaintiff's

complaint.

COUNT IV

COMMON LAW UNFAIR COMPETITION

45. Defendants hereby incorporate their responses to the allegations of paragraphs 1

through 44 of plaintiff's complaint as if fully set forth herein.

46. Defendants deny the allegations contained in paragraph 46 of the plaintiff's

complaint.

47. Defendants deny the allegations contained in paragraph 47 of the plaintiff's

complaint.

48. Defendants deny the allegations contained in paragraph 48 of the plaintiff's

complaint.

COUNT V

BREACH OF CONTRACT

49. Defendants hereby incorporate their responses to the allegations of paragraphs 1

through 48 of plaintiff's complaint as if fully set forth herein.

50. Defendants deny the allegations contained in paragraph 50 of the plaintiff's

complaint and state that no Exhibit 4 was attached to the Complaint served upon Defendants.

Defendants further state that in the "Supplement" to the Complaint filed October 10, 2008, the

-7-
plaintiff submitted as Exhibit 4 a contract with a forged signature which plaintiff purports to be

that of Bridgette Maxwell.

51. Defendants deny the allegations contained in paragraph 51 of the plaintiff's

complaint.

52. Defendants deny the allegations contained in paragraph 52 of the plaintiff's

complaint.

53. Defendants deny the allegations contained in paragraph 53 of the plaintiff's

complaint.

54. Defendants deny the allegations contained in paragraph 54 of the plaintiff's

complaint.

55. Defendants deny the allegations contained in paragraph 55 of the plaintiff's

complaint.

56. Defendants deny the allegations contained in paragraph 56 of the plaintiff's

complaint.

57. Defendants deny the allegations contained in paragraph 57 of the plaintiff's

complaint.

COUNT VI

BREACH OF CONTRACT

58. Defendants hereby incorporate their responses to the allegations of paragraphs 1

through 57 of plaintiff's complaint as if fully set forth herein.

59. Defendants admit that Brandon Maxwell signed two documents, each entitled

"Printing Agreement," and state that Exhibits 5 and 6 were not attached to the Complaint served

upon Defendants. Defendants further state that in the "Supplement" to the Complaint filed

October 10, 2008, the plaintiff submitted true and accurate copies of the two documents entitled

-8-
"Printing Agreement" that Brandon Maxwell signed. Defendants deny that the two documents

entitled "Printing Agreement" are valid and enforceable contracts and deny all other allegations

contained in paragraph 59 of plaintiff's complaint.

60. Defendants deny the allegations contained in paragraph 60 of the plaintiff's

complaint.

61. Defendants deny the allegations contained in paragraph 61 of the plaintiff's

complaint.

62. Defendants deny the allegations contained in paragraph 62 of the plaintiff's

complaint.

63. Defendants deny the allegations contained in paragraph 63 of the plaintiff's

complaint.

64. Defendants deny the allegations contained in paragraph 64 of the plaintiff's

complaint.

65. Defendants deny the allegations contained in paragraph 65 of the plaintiff's

complaint.

66. Defendants deny the allegations contained in paragraph 66 of the plaintiff's

complaint.

COUNT VII

VIOLATION OF INDIANA'S UNIFORM TRADE SECRETS ACT

67. Defendants hereby incorporate their responses to the allegations of paragraphs 1

through 66 of plaintiff's complaint as if fully set forth herein.

68. Defendants deny the allegations contained in paragraph 68 of the plaintiff's

complaint.

-9-
69. Defendants deny the allegations contained in paragraph 69 of the plaintiff's

complaint.

70. Defendants deny the allegations contained in paragraph 70 of the plaintiff's

complaint.

71. Defendants deny the allegations contained in paragraph 71 of the plaintiff's

complaint.

72. Defendants deny the allegations contained in paragraph 72 of the plaintiff's

complaint.

73. Defendants deny the allegations contained in paragraph 73 of the plaintiff's

complaint.

74. Defendants deny the allegations contained in paragraph 74 of the plaintiff's

complaint.

75. Defendants deny the allegations contained in paragraph 75 of the plaintiff's

complaint.

76. Defendants deny the allegations contained in paragraph 76 of the plaintiff's

complaint.

77. Defendants deny the allegations contained in paragraph 77 of the plaintiff's

complaint.

78. Defendants deny the allegations contained in paragraph 78 of the plaintiff's

complaint.

PRAYER FOR RELIEF

Defendants deny that plaintiff is entitled to the judgment and relief prayed for in the

Complaint.

-10-
AMENDED AFFIRMATIVE DEFENSES

1. The Complaint fails to state a claim upon which relief may be granted against

Defendants.

2. Plaintiff's claims are barred, in whole or in part, by the doctrine of estoppel.

3. Plaintiff's claims are barred, in whole or in part, by the doctrine of laches.

4. Plaintiff's claims are barred, in whole or in part, by the doctrine of acquiescence.

5. Plaintiff's claims are barred because plaintiff obtained the signature of Brandon

Maxwell to the two "Printing Agreements" through undue influence.

6. Plaintiff's claims are barred for failure of consideration with respect to the two

"Printing Agreements."

7. Plaintiff's claims are barred, in whole or in part, by illegality and fraud due to the

forgery of the signature of Bridgette Maxwell to the contract submitted (in the "Supplement") as

Exhibit 4 to the Complaint.

8. Plaintiff's claims are barred because Defendants owned, or were licensed the right

to use, the allegedly copyright and trademark infringing material identified in the plaintiff's

Complaint.

9. Plaintiff's claims are barred by the plaintiff's unclean hands and fraudulent acts in

creating and submitting as Exhibit 4 a contract with a forged signature which plaintiff purports to

be that of Bridgette Maxwell.

10. Plaintiff's claims are barred by the plaintiff's unclean hands and fraudulent acts in

representing to the United States Copyright Office that plaintiff is the owner of the copyrights in

the graphical city maps at issue.

-11-
11. Plaintiff’s claims are barred by Defendant’s ownership of the alleged infringing

materials.

12. Plaintiff’s claims are barred because Defendants' use of the alleged trade dress is a

fair use or does not constitute trademark usage.

13. Plaintiff’s claims are barred because Defendants' use of any of works owned by

plaintiff and protected by copyright is a fair use.

14. Plaintiff’s claims are barred, in whole or in part, pursuant to doctrine and

affirmative defense of set off.

15. Defendants reserve the right to amend their Answer and assert additional defenses

and/or supplement, alter or change their Answer and defenses upon the discovery of more

definitive facts and upon the completion of a continuing investigation and discovery.

JURY DEMAND

Defendants demand a trial by jury of all counts and claims triable to a jury.

-12-
FIRST AMENDED COUNTERCLAIM AND THIRD PARTY CLAIM

Counterclaim/Third Party Plaintiff Bridgette Maxwell ("Maxwell"), for her First

Amended Counterclaim and Third Party Claim, states as follows:

PARTIES

1. Maxwell is an individual residing in Crested Butte, Colorado.

2. Upon information and belief, Third Party Defendant Mark Pflug is an individual

residing in Lafayette, Indiana.

3. Upon information and belief, Counterclaim Defendant Opportunity Knocks, Inc.

is a Utah corporation with its principal place of business in Lafayette, Indiana (collectively, Mark

Pflug and Opportunity Knocks, Inc. are referred to in this Counterclaim as "Pflug").

JURISDICTION AND VENUE

4. This Court has subject-matter jurisdiction over this action because this action

arises under the Declaratory Judgments Act, 28 U.S.C. §§ 2201 and 2202, and under the

copyright laws of the United States (17 U.S.C. §§ 101 et seq.), over which this Court has subject-

matter jurisdiction pursuant to 28 U.S.C. §§ 1331 and 1338(a).

5. This court has personal jurisdiction over Mark Pflug because he is a resident of

Indiana and Opportunity Knocks, Inc. because its principal place of business is within the state

of Indiana.

6. Venue is proper in this judicial district under 28 U.S.C. §§ 1391(b) and (c) and

1400(a).

ALLEGATIONS COMMON TO ALL COUNTS

7. Maxwell began considering the idea of creating graphical city maps in January

2005 after she observed a graphical city map for the city of Gunnison, Colorado.

-13-
8. At that time, Maxwell was a two-year veteran employee of the Crested Butte,

Colorado, local newspaper and was serving as its Advertising Representative and Director.

9. Through her position with the newspaper, Maxwell gained valuable knowledge,

experience and contacts in the Colorado business community, including the business community

in Telluride and Crested Butte.

10. In Spring 2005, Maxwell decided to create a graphical city map of Cheyenne,

Wyoming, for use in association with Cheyenne's annual “Frontier Days Rodeo” to be held in

July 2005.

11. Maxwell's husband, Brandon Maxwell, is from Cheyenne and his family has

many contacts there.

12. Maxwell's long term plan was to produce graphical city maps for use in ski resort

cities all over Colorado, including Telluride and Crested Butte, Colorado.

13. After making the decision, Maxwell began to research ways of producing

graphical city maps.

14. After searching for an entity that might assist Maxwell in creating her maps,

Maxwell contacted Pflug whom she identified from the website www.cartoonmaps.com.

15. When Maxwell initially contacted Pflug regarding her planned 2005 Cheyenne

map, one of the first questions she asked him was whether she would own the rights to the

artwork and her maps.

16. Pflug answered that she would.

17. Thereafter, during a telephone conversation, Maxwell hired Pflug to assist her in

creating the 2005 Cheyenne map.

-14-
18. While the 2005 Cheyenne map was being created, Maxwell obtained printing

estimates from over a dozen printers, including a printer in Cheyenne, Wyoming.

19. When Maxwell informed Pflug about the printing estimates, he responded that the

price Maxwell found was lower than any price he had ever found.

20. Sales of the 2005 Cheyenne map were poor.

21. Nonetheless, in Spring 2006, Maxwell again contacted Pflug to see if he was

available to assist in creating her 2006 Crested Butte map.

22. Pflug was available and, as with her 2005 Cheyenne map, Maxwell hired Pflug to

assist in creating her 2006 Crested Butte map. An incomplete copy of Maxwell's 2006 Crested

Butte map is attached to the Complaint at Exhibit 1.

23. Ultimately, Maxwell also hired Pflug to assist in creating her 2007 Crested Butte

map and her 2007 Telluride Map. An incomplete copy of Maxwell's 2007 Crested Butte map is

attached to the Complaint at Exhibit 2, and an incomplete copy of Maxwell's 2007 Telluride map

is attached to the Complaint at Exhibit 3.

24. During the course of his work for Maxwell, Pflug assured her that he protected

her maps by copyright and that she would always have access to the maps she paid for.

25. During this time, when Maxwell questioned Pflug regarding copyright protection,

Pflug indicated that he was “handling the issue.”

26. The procedure Maxwell used with Pflug to create her maps was to send Pflug

Microsoft Word documents and digital pictures that she had taken of buildings, along with logos,

specific detailed directions for each building that was to appear on a map and other details as to

what was to appear on the maps.

-15-
27. Maxwell also sketched out actual size drawings of the maps, mountains and street

layout, and gave details to Pflug regarding where material should be placed on the maps.

28. Pflug then e-mailed “maps in progress” to Maxwell for her to review, change,

correct and otherwise direct.

29. As noted, every building on each map was created based on a digital photograph

taken by Maxwell, and the artistic direction and information Maxwell directed and provided to

Pflug.

30. The graphical representation of businesses on the maps is based on the physical

appearance of the buildings in which those businesses are located, the streets on which the

businesses are located, and the literal layout of the city.

31. The positioning of a business' logo, details, and contact information on the maps

was determined by Maxwell.

32. Pflug never had contact with any of Maxwell's business clients.

33. Pflug never visited Crested Butte or Telluride, Colorado during the period that

Maxwell used Pflug to assist in creating her maps.

34. Pflug's role was limited to assisting with the creation of Maxwell's maps under

Maxwell's direction and lead.

35. In the course of working with Maxwell, Pflug understood Maxwell's work history

and her goal of eventually providing maps for Colorado ski resort cities.

36. Maxwell is not and never has been an employee of Pflug.

37. Maxwell has paid Pflug over $35,000 for assistance in creating her maps.

38. Maxwell ultimately quit her job as the Advertising Representative and Director

for the local Crested Butte newspaper in 2008 to pursue her graphic city map business full time.

-16-
39. In May 2008, Maxwell's husband received a threatening letter from Pflug's

attorney which stated, in relevant part, “While Maxwell Maps is entitled to market, create and

print its own cartoon maps in competition with Opportunity Knocks, Maxwell Maps is not

entitled to use Opportunity Knocks' copyrighted artwork to promote the competing business of

Maxwell Maps." (May 1, 2008, Letter from Keith Fafarman to Brandon Maxwell, attached as

Exhibit 10 to the Declaration of Mark Pflug in Support of Plaintiff's Motion for Temporary

Restraining Order and Preliminary Injunction).

40. The May 2008 letter from Pflug's attorney did not attach or even reference any

agreement barring Maxwell from producing graphic city maps in Colorado (or anywhere else).

41. Yet, over four months later, Pflug took the exact opposite position and filed a

Complaint and related motions for emergency and preliminary injunctive relief based, in part, on

the assertion that Maxwell was barred from competing with OKI due to the terms of a

"Design/Printing Agreement" attached to the Complaint as Exhibit 4.

42. The "Design/Printing Agreement" submitted to the Court by Pflug bears a forged

signature that Plaintiff purports to be that of Maxwell.

43. As detailed by the Affidavit of Bridgette Maxwell, attached hereto as Exhibit A,

Maxwell did not sign the "Design/Printing Agreement" and never saw the "Design/Printing

Agreement," or any version of it, prior to this lawsuit.

44. On information and belief, Pflug did not include or reference the "Design/Printing

Agreement" in the May 2008 letter from Pflug's attorney to Brandon Maxwell because the

"Design/Printing Agreement" did not exist.

-17-
45. On information and belief, Pflug forged Maxwell's signature to the

"Design/Printing Agreement" as part of a scheme to demand money and other concessions from

Maxwell with respect to certain of her maps that were sold through Maxwell Maps LLC.

46. Pflug has been selling and offering for sale maps that contain identical material

and/or substantially similar material to the copyrights for the 2006 Crested Butte map, the 2007

Crested Butte map, and the 2007 Telluride map.

COUNT I

CRIMINAL FORGERY AND DECEPTION

47. Counterclaim Plaintiff incorporates by reference the allegations in paragraphs 1

through 46 of the First Amended Counterclaim as if fully set forth herein.

48. Pflug’s act of knowingly or intentionally making a false and misleading written

instrument and statements with intent to defraud Maxwell, obtain Maxwell's property, and cause

harm to Maxwell as alleged above, constitutes the crimes of forgery and deception pursuant to

Indiana Code Sections 35-43-5-2 and 3.

49. Pflug’s criminal and tortious actions have prevented Maxwell from selling her

property and caused damages and pecuniary loss, and has caused Maxwell to suffer lost sales and

other monies.

50. Pflug’s criminal and tortious actions have caused a cloud of title on Maxwell’s

property.

51. Also, due to Pflug’s criminal and tortious acts of forgery and/or deception,

Maxwell is unable to sell her maps and/or map business.

52. Due to Plug’s acts of forgery and/or deception Maxwell has lost clients, business

and profits.

-18-
53. Due to Pflug’s filing the Complaint based on a forged document, Maxwell has

incurred attorney’s fees to defend herself from Plaintiff’s claims and to assert her own rights.

54. Pursuant to Indiana Code Section 34-24-3-1, Maxwell is entitled to three times

the actual damages that she has suffered, costs of this action, reasonable attorneys' fees, travel

expenses, amounts lost to prosecute this action and an amount lost for any employees and agents

to assist in prosecuting this action, and all other reasonable costs of collection.

55. Pflug acted with malice, fraud, gross negligence, or oppression. which was not the

result of a mistake of fact or law, honest error or judgment, overzealousness, mere negligence, or

other human failing and therefore punitive damages should be awarded.

COUNT II

DECLARATORY JUDGMENT

56. Counterclaimant incorporates by reference the allegations in paragraphs 1 through

55 of the First Amended Counterclaim as if fully set forth herein.

57. Pflug has applied for, and may now possess, certificates of copyright registration

for the 2006 Crested Butte map, the 2007 Crested Butte map, and the 2007 Telluride map.

58. Pflug alleges in the Complaint that Counterclaim Plaintiff Bridgette Maxwell, and

Defendants Brandon Maxwell and Maxwell Maps LLC, have infringed Pflug's alleged

copyrights for the 2006 Crested Butte map, the 2007 Crested Butte map, and the 2007 Telluride

map.

59. However, Counterclaim Plaintiff Bridgette Maxwell, and Defendants Brandon

Maxwell and Maxwell Maps LLC, have not infringed, and are not infringing, Pflug's alleged

copyrights for the 2006 Crested Butte map, the 2007 Crested Butte map, and the 2007 Telluride

map.

-19-
60. Rather, Maxwell is the author of and owns all copyrights in the 2006 Crested

Butte map, the 2007 Crested Butte Map, and the 2007 Telluride map.

61. Maxwell is entitled to a declaratory judgment that she is the author of and owns

all copyrights in the 2006 Crested Butte map, the 2007 Crested Butte Map, and the 2007

Telluride map.

COUNT III

COPYRIGHT INFRINGEMENT

62. Counterclaimant incorporates by reference the allegations in paragraphs 1 through

61 of the First Amended Counterclaim as if fully set forth herein.

63. In 2006, Maxwell hired Pflug to assist her in designing The Official Cartoon Map

of Crested Butte, Colorado, 2006-2007, for Maxwell.

64. Maxwell is the author of and owns all copyrights in The Official Cartoon Map of

Crested Butte, Colorado, 2006-2007.

65. Pflug has printed, distributed and/or sold cartoon maps of Crested Butte, Colorado

that contain substantial material copied from The Official Cartoon Map of Crested Butte,

Colorado, 2006-2007 without Maxwell’s permission.

66. Pflug has infringed and continues to infringe Maxwell’s copyrights by printing,

distributing and/or selling its cartoon maps of Crested Butte, Colorado.

67. Pflug’s infringement of Maxwell’s copyrights were and continue to be willful.

68. Pflug’s actions were and are performed without permission, license or consent of

Maxwell.

69. Pflug’s infringement of Maxwell’s copyrights has caused damage and irreparable

harm to Maxwell and will continue to do so unless enjoined.

-20-
COUNT IV

COPYRIGHT INFRINGEMENT

70. Counterclaimant incorporates by reference the allegations in paragraphs 1 through

69 of the First Amended Counterclaim as if fully set forth herein.

71. In 2007, Maxwell hired Pflug to assist her in designing The Official Cartoon Map

of Telluride, Colorado, 2007-2008 Edition, for Maxwell.

72. Maxwell is the author of and owns all copyrights in The Official Cartoon Map of

Telluride, Colorado, 2007-2008 Edition.

73. Pflug has printed, distributed and/or sold cartoon maps of Telluride, Colorado

which contain substantial material copied from the The Official Cartoon Map of Telluride,

Colorado, 2007-2008 Edition.

74. Pflug has infringed and continues to infringe Maxwell’s copyrights by printing,

distributing and/or selling its cartoon maps of Telluride, Colorado.

75. Pflug’s infringement of Maxwell’s copyrights were and continue to be willful.

76. Pflug’s actions were and are performed without permission, license or consent of

Maxwell.

77. Pflug’s infringement of Maxwell’s copyrights has caused damage and irreparable

harm to Maxwell and will continue to do so unless enjoined.

COUNT V

UNFAIR COMPETITION UNDER §43(a) OF THE LANHAM ACT

78. Counterclaimant incorporates by reference the allegations in paragraphs 1 through

77 of the First Amended Counterclaim as if fully set forth herein.

-21-
79. Pflug has unlawfully used The Official Cartoon Map of Crested Butte, Colorado,

2006-2007, on or in connection with his www.cartoonmaps.com website including a false

designation of origin, false or misleading description of fact, or false or misleading

representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to

the affiliation, connection, or association as to the origin, sponsorship, or approval of Pflug’s

goods, services, or commercial activities of OKI with Maxwell.

80. Pflug, now uses the OKI designation where the Maxwell Maps designation was

previously displayed on The Official Cartoon Map of Crested Butte, Colorado, 2006-2007.

81. Pflug had and has full knowledge of Maxwell’s rights in The Official Cartoon

Map of Crested Butte, Colorado, 2006-2007.

82. Pflug’s unlawful actions were and are performed without permission, license or

consent of Maxwell.

83. Pflug’s conduct has enabled Pflug to earn profits to which Pflug is not lawfully

entitled, and has unjustly enriched Pflug, to Maxwell’s detriment.

84. Pflug’s infringement of Maxwell’s copyrights has caused damage and irreparable

harm to Maxwell and will continue to do so unless enjoined.

COUNT VI

UNFAIR COMPETITION UNDER §43(a) OF THE LANHAM ACT

85. Counterclaimant incorporates by reference the allegations in paragraphs 1 through

84 of the First Amended Counterclaim as if fully set forth herein.

86. Pflug has used The Official Cartoon Map of Telluride, Colorado, 2007-2008

Edition, on or in connection with his www.cartoonmaps.com website including a false

designation of origin, false or misleading description of fact, or false or misleading

-22-
representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to

the affiliation, connection, or association as to the origin, sponsorship, or approval of Pflug’s

goods, services, or commercial activities of OKI with Maxwell.

87. Pflug, now uses the OKI designation where the Maxwell Maps designation was

previously displayed on The Official Cartoon Map of Telluride, Colorado, 2007-2008 Edition.

88. Pflug had and has full knowledge of Maxwell’s rights in The Official Cartoon

Map of Telluride, Colorado, 2007-2008 Edition.

89. Pflug’s unlawful actions were and are performed without permission, license or

consent of Maxwell.

90. Pflug’s conduct has enabled Pflug to earn profits to which Pflug is not entitled,

and has unjustly enriched Pflug, to Maxwell’s detriment.

91. Pflug’s infringement of Maxwell’s copyrights has caused damage and irreparable

harm to Maxwell and will continue to do so unless enjoined.

COUNT VII

COMMON LAW UNFAIR COMPETITION

92. Counterclaimant incorporates by reference the allegations in paragraphs 1 through

91 of the First Amended Counterclaim as if fully set forth herein.

93. Pflug’s unlawful actions constitute unfair competition.

94. Pflug’s unlawful actions are and were intended to be deceptive.

95. Pflug’s unlawful actions have caused and continue to cause Maxwell irreparable

harm for which there is no adequate remedy at law. Such irreparable harm will continue until

Pflug’s unlawful activities are enjoined.

-23-
PRAYER FOR RELIEF

Counterclaim Plaintiff Bridgette Maxwell respectfully requests judgment against Third

Party Defendant Mark Pflug and Counterclaim Defendant Opportunity Knocks, Inc. as follows:

A. Declaring that Pflug and/or OKI committed forgery and deception;

B Declaring that Maxwell is entitled to three times the actual damages that she has suffered,

costs of this action, reasonable attorneys' fees, travel expenses, amounts lost to prosecute this

action and an amount lost for any employees and agents to assist in prosecuting this action, and

all other reasonable costs of collection due to the forgery and/or deception;

C. Declaring that Maxwell has not infringed Pflug's and/or OKI’s alleged copyrights for the

2006 Crested Butte map, the 2007 Crested Butte map, and the 2007 Telluride map; Pflug's and/or

OKI’s alleged copyrights for the 2006 Crested Butte map, the 2007 Crested Butte map, and the

2007 Telluride map are invalid and unenforceable; and Maxwell is the author of and owns all

copyrights for the 2006 Crested Butte map, the 2007 Crested Butte map, and the 2007 Telluride

map;

D. Enter Judgment in Maxwell’s favor and against OKI and Pflug in an amount that they

will prove, plus an award of their reasonable attorneys’ fees, an award of punitive damages,

prejudgment interest, and costs.

E. Awarding Maxwell a permanent injunction prohibiting Pflug and OKI (and all those

acting in concert with Pflug and OKI) from further use of the 2006 Crested Butte map, the 2007

Crested Butte map, and the 2007 Telluride map, or anything similar thereto;

F. Declaring that Pflug and OKI have infringed Maxwell’s copyright rights;

G. Declaring that Pflug and OKI have engaged in unfair competition;

-24-
H. Awarding Maxwell a permanent injunction prohibiting Pflug and OKI from infringing

Maxwell’s copyright rights or otherwise engaging in unfair competition;

I. Ordering Pflug and OKI to destroy all infringing materials and prohibiting their use of the

maps on the web and in print;

J. Awarding Maxwell three times the actual damages that Maxwell has suffered in an

amount that Maxwell proves, costs of this action, reasonable attorneys' fees, travel expenses,

amounts lost to prosecute this action and an amount lost for any employees and agents to assist

in prosecuting this action, and all other reasonable costs of collection or an amount sufficient to

compensate Maxwell for the injuries caused by Pflug and OKI;

L. Awarding Maxwell her reasonable attorneys' fees and costs, and

M. Granting Maxwell all other just and proper relief.

JURY DEMAND

Counterclaim/Third Party Plaintiff demands a trial by jury of all counts and claims in this

First Amended Counterclaim and Third Party Complaint triable to a jury.

Respectfully submitted,

ALERDING CASTOR, LLP

/s/ Patricia A. Hughel


Patricia A. Hughel (IN 24115-4A)
Alerding Castor, LLP
Telephone: 317-829-1910
Facsimile: 317-423-2089
Email: phughel@alerdingcastor.com

Attorney for the Defendants, Brandon


Maxwell, Bridgette Maxwell and Maxwell
Maps LLC.

-25-
CERTIFICATE OF SERVICE

I hereby certify that on February 27, 2009, I electronically filed the foregoing
with the Clerk of the Court using the CM/ECF system which sent notification of such filing to
the following:

Anthony E. Dowell, Esq.


Jennifer A. Dondurant, Esq.
Geoffrey D. Smith, Esq.
Dowell Baker, PC
201 Main St., Suite 710
Lafayette, IN 47901
aedowell@dowellbaker.com
Jabondurant@dowellbaker.com
gsmith@dowellbaker.com

Geoffrey A. Baker, Esq.


229 Randolph Street
Oak Park, Illinois 60302
gabaker@dowellbaker.com

/s/ Patricia A. Hughel

-26-