Professional Documents
Culture Documents
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 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
PARTIES
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
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
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
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
complaint and further state that in its "supplement" filing, the plaintiff submitted a contract with
complaint.
COUNT I
COPYRIGHT INFRINGEMENT
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
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
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
-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
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
complaint and state that plaintiff acted fraudulently in seeking copyright registration of the
Crested Butte, Colorado, Summer 2007 Winter 2008 graphical city map.
complaint.
complaint.
complaint.
complaint.
complaint.
-4-
22. Defendants deny the allegations contained in paragraph 22 of the plaintiff's
complaint.
COUNT II
COPYRIGHT INFRINGEMENT
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.
complaint and state that plaintiff acted fraudulently in seeking copyright registration of the
complaint.
complaint.
complaint.
complaint.
-5-
31. Defendants deny the allegations contained in paragraph 31 of the plaintiff's
complaint.
COUNT III
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
-6-
42. Defendants deny the allegations contained in paragraph 42 of the plaintiff's
complaint.
complaint.
complaint.
COUNT IV
complaint.
complaint.
complaint.
COUNT V
BREACH OF CONTRACT
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
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
COUNT VI
BREACH OF CONTRACT
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
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
COUNT VII
complaint.
-9-
69. Defendants deny the allegations contained in paragraph 69 of the plaintiff's
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
complaint.
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.
5. Plaintiff's claims are barred because plaintiff obtained the signature of Brandon
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
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
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
-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
13. Plaintiff’s claims are barred because Defendants' use of any of works owned by
14. Plaintiff’s claims are barred, in whole or in part, pursuant to doctrine and
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
PARTIES
2. Upon information and belief, Third Party Defendant Mark Pflug is an individual
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").
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-
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).
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
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
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
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
17. Thereafter, during a telephone conversation, Maxwell hired Pflug to assist her in
-14-
18. While the 2005 Cheyenne map was being created, Maxwell obtained printing
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.
21. Nonetheless, in Spring 2006, Maxwell again contacted Pflug to see if he was
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
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
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,
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
-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,
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
31. The positioning of a business' logo, details, and contact information on the maps
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
34. Pflug's role was limited to assisting with the creation of Maxwell's maps under
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.
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
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
42. The "Design/Printing Agreement" submitted to the Court by Pflug bears a forged
Maxwell did not sign the "Design/Printing Agreement" and never saw the "Design/Printing
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
-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
COUNT I
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
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,
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
COUNT II
DECLARATORY JUDGMENT
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.
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
63. In 2006, Maxwell hired Pflug to assist her in designing The Official Cartoon Map
64. Maxwell is the author of and owns all copyrights in The Official Cartoon Map of
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,
66. Pflug has infringed and continues to infringe Maxwell’s copyrights by printing,
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
-20-
COUNT IV
COPYRIGHT INFRINGEMENT
71. In 2007, Maxwell hired Pflug to assist her in designing The Official Cartoon Map
72. Maxwell is the author of and owns all copyrights in The Official Cartoon Map of
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,
74. Pflug has infringed and continues to infringe Maxwell’s copyrights by printing,
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
COUNT V
-21-
79. Pflug has unlawfully used The Official Cartoon Map of Crested Butte, Colorado,
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
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
84. Pflug’s infringement of Maxwell’s copyrights has caused damage and irreparable
COUNT VI
86. Pflug has used The Official Cartoon Map of Telluride, Colorado, 2007-2008
-22-
representation of fact, which is likely to cause confusion, or to cause mistake, or to deceive as to
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
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,
91. Pflug’s infringement of Maxwell’s copyrights has caused damage and irreparable
COUNT VII
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
-23-
PRAYER FOR RELIEF
Party Defendant Mark Pflug and Counterclaim Defendant Opportunity Knocks, Inc. as follows:
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,
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;
-24-
H. Awarding Maxwell a permanent injunction prohibiting Pflug and OKI from infringing
I. Ordering Pflug and OKI to destroy all infringing materials and prohibiting their use of the
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
JURY DEMAND
Counterclaim/Third Party Plaintiff demands a trial by jury of all counts and claims in this
Respectfully submitted,
-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:
-26-