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Patricia L. Glaser, State Bar No. 55668 G. Jill Basinger, State Bar No. 195739 David Sergenian, State Bar No. 230174 GLASER WEIL FINK JACOBS HOWARD AVCHEN & SHAPIRO LLP 10250 Constellation Boulevard, 19th Floor Los Angeles, CA 90067 Telephone: (310) 553-3000 Facsimile: (310) 556-2920 Attorneys for Defendant SWEETPEA ENTERTAINMENT, INC. and Defendant/Counter-Claimant SWEETPEA B.V.I. LTD. UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA WESTERN DIVISION HASBRO, INC., et al., Plaintiffs, v. SWEETPEA ENTERTAINMENT, INC., et al., Defendants. AND RELATED COUNTERCLAIM. CASE NO. 13-CV-03406-DMG (JCGx) SWEETPEAS NOTICE OF MOTION AND MOTION FOR PARTIAL SUMMARY JUDGMENT; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF [Separate Statement of Undisputed Material Facts and Conclusions of Law, Declaration of G. Jill Basinger] Date: January 24, 2014 Time: 3:00 p.m. Ctrm: 7 Complaint Filed: May 13, 2013 Counterclaim Filed: September 3, 2013

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TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that, pursuant to Rule 56 of the Federal Rules of Civil Procedure, on January 24, 2014, at 3:00 p.m. or as soon thereafter as the matter may be heard in Courtroom 7 by the Honorable Dolly M. Gee of the United States District Court for the Central District of California, located at 312 North Spring Street Los Angeles, California 90012, defendants Sweetpea Entertainment, Inc. and Sweetpea, B.V.I., Ltd (collectively, Sweetpea) will, and hereby do, move for partial summary judgment against plaintiffs Hasbro, Inc., and Wizards of the Coast LLC (Plaintiffs or Hasbro). This Motion is brought on the grounds that there is no genuine issue of material fact, and that Defendants are entitled to judgment as a matter of law as follows: Plaintiffs cannot prove their First Cause of Action for Copyright Infringement. Plaintiffs cannot establish that Sweetpea created any work that allegedly infringes the copyrights at issue. Plaintiffs cannot prove their Second Cause of Action for Trademark Infringement and Third Cause of Action for False Designation of Origin. Plaintiffs cannot establish that Sweetpea used the trademarks at issue in interstate commerce. Plaintiffs cannot prove their Fourth Cause of Action for Trademark Dilution. Plaintiffs cannot prove that Sweetpea is currently making commercial use of the mark in commerce, or that the alleged use would present a likelihood of dilution of the distinctive value of the mark. Pursuant to Local Rule 7-3, Sweetpeas counsel met and conferred telephonically and in person with Plaintiffs counsel on numerous occasions, including November 22, 2013 and December 10, 2013. The parties were unable to resolve their differences, and Sweetpea filed this Motion. (Declaration of G. Jill Basinger 2.) The Motion is based upon this Notice of Motion and Motion; the accompanying Memorandum of Points and Authorities; the Separate Statement of 1
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Undisputed Material Facts and Conclusions of Law, and Declaration of G. Jill Basinger, filed concurrently herewith; the pleadings and other papers filed in this action, and upon such other argument and evidence as may be presented to the Court. DATED: December 13, 2013 GLASER WEIL FINK JACOBS HOWARD AVCHEN & SHAPIRO LLP

By: /s/ G. Jill Basinger PATRICIA L. GLASER G. JILL BASINGER DAVID SERGENIAN Attorneys for Defendant Sweetpea Entertainment, Inc. and Defendant/Counter-Claimant Sweetpea B.V.I. Ltd.

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TABLE OF CONTENTS Page I. II. INTRODUCTION ........................................................................................... 1 BACKGROUND ............................................................................................. 3 A. B. Hasbros Claims for Copyright Infringement and Trademark Violations Are Based on a Work Not Created by Sweetpea ................ 3 Sweetpeas Prior Motion for Summary Judgment Was Denied Without Prejudice So Hasbro Could Try and Obtain Discovery That May Support Its Copyright and Trademark Infringement Claims ................................................................................................... 3 Hasbro Had Ample Opportunity to Conduct Discovery on Its Copyright and Trademark Claims ......................................................... 4

C. III. IV.

STANDARD OF REVIEW............................................................................. 4 ARGUMENT .................................................................................................. 5 A. B. Hasbro Cannot Establish That Sweetpea Created Any Work That Allegedly Infringes Hasbros Copyrights ............................................. 5 Summary Judgment of Hasbros Trademark Claims Should Be Granted Because Hasbro Cannot Establish an Alleged Use of the Trademarks by Sweetpea ...................................................................... 7

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V.

CONCLUSION ............................................................................................... 8

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TABLE OF AUTHORITIES Page FEDERAL CASES Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (1986) ................................................................................................... 5 Celotex Corp. v. Catrett, 477 U.S. 317 (1986) ................................................................................................... 5 Cleary v. News Corp., 30 F.3d 1255 (9th Cir. 1994) ..................................................................................... 7 Fairbank v. Wunderman Cato Johnson, 212 F .3d 528 (9th Cir. 2000) .................................................................................... 5 Feist Publns, Inc. v. Rural Tele. Serv. Co., 499 U.S. 340............................................................................................................... 6 Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628 (9th Cir. 2008) ..................................................................................... 8 Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011) ................................................................................... 7 New West Corp. v. NYM Co. of California, Inc., 595 F.2d 1194 (9th Cir. 1979) ................................................................................... 7 Rice v. Fox Broadcasting Co., 330 F.3d 1170 (9th Cir. 2003) ................................................................................... 6 Tarin v. County of Los Angeles, 123 F.3d 1259 (9th Cir. 1997) ................................................................................... 4 Thane Intern., Inc. v. Trek Bicycle Corp., 305 F.3d 894 (9th Cir. 2002) ..................................................................................... 8 FEDERAL RULES 15 U.S.C. 1125(a) ....................................................................................................... 7 15 U.S.C. 1127............................................................................................................ 8 Fed. R. Civ. P. 56(c)(1)(B) ............................................................................................ 5

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MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION Sweetpea has done nothing to infringe Hasbros copyrights or trademarks. There is no evidence to the contrary. To establish copyright infringement, a plaintiff must show that the defendant has used protectable elements of the plaintiffs copyrighted works in an infringing work. Here, Plaintiffs allege that a script entitled Chainmail infringes copyrights owned by Plaintiffs. Chainmail, however, was not written by Sweetpea, nor did Sweetpea have a hand in developing the script. Chainmail was written without any involvement by Sweetpea. In fact, before Sweetpea became aware of the script, the script was given to Hasbro, who reviewed it and then entered into negotiations to produce a movie based on Chainmail. After months of negotiations, Hasbro passed on the project and Chainmail was sent to Sweetpea principal Courtney Solomon, after the studio determined that Sweetpea held the right to make a live-action motion picture based on Dungeons & Dragons. Solomon read the script and discussed it with studio executives. Not only did Sweetpea never create a movie, script, treatment or other work related to Chainmail, it has never created any tangible work based on the script or story. Solomon never edited the script. He did not make any notes or annotations to the script. He did not write anything down in connection with the script. Sweetpea, in other words, not only had no involvement in creating or developing the Chainmail script, the script that Hasbro alleges infringes the Dungeons & Dragons copyrights, Sweetpea also did not create any derivative work in a tangible medium based on or related to Chainmail. There can be no copyright infringement without copying. Here, there is no evidence that Sweetpea did anything that could legally be considered infringement1 because Sweetpea did not write Chainmail or any work derived

This assumes, solely for purposes of this motion, that the Chainmail script infringes copyrights to which Hasbro has the exclusive rights, which Sweetpea denies. 1
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therefrom. Plaintiffs copyright claim is fatally defective and summary judgment on that claim should be granted because there is no allegedly infringing work by Sweetpea. For similar reasons, summary judgment on Plaintiffs trademark claims must be granted: Hasbro cannot establish that Sweetpea has used the trademarks Dungeons & Dragons or D&D, as is required to establish a trademark violation. Hasbro cannot present any evidence that Sweetpea produced, released, marketed or advertised a Chainmail-related film using Dungeons & Dragons trademarks. Without such evidence of use, Hasbro cannot establish a prima facie case of trademark infringement, dilution or false designation of origin. Sweetpea previously moved for summary judgment, including on the grounds presented in this motion. Plaintiffs argued that the prior motion was premature and that they believed they could obtain evidence to support their claims if given the opportunity to conduct discovery. The Court denied Sweetpeas prior motion, without prejudice, on the grounds that Plaintiffs were entitled, pursuant to Fed. R. Civ. P. 56(d), to conduct discovery that might allow Plaintiffs to survive summary judgment. Discovery has not proved to be fruitful for Plaintiffs. In the months following the Courts order, Plaintiffs received documents from Sweetpea, thousands of pages of documents from third parties, and took the depositions, among others, of Courtney Solomon, Sweetpea, and the third-party studio that sent Solomon a copy of Chainmail. Having had ample opportunity to discover evidence that might allow them to make a case of copyright or trademark infringement, Plaintiffs have nothing, and will not be able to point to any evidence that Sweetpea created an allegedly infringing work or used the Dungeons & Dragons trademark in commerce. As a matter of law, Sweetpea is entitled to summary judgment and accordingly renews its motion for partial summary judgment.

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II.

BACKGROUND A. Hasbros Claims for Copyright Infringement and Trademark Violations Are Based on a Work Not Created by Sweetpea

On May 13, 2013, Plaintiffs Hasbro, Inc. and Wizards of the Coast, LLC (collectively, Hasbro) filed the Complaint in this Court alleging that Sweetpea Entertainment, Inc. and Sweetpea B.V.I. Ltd. (collectively, Sweetpea) has infringed Hasbros copyrights and trademarks. Hasbro alleges that it owned registered copyrights in and to various games, publications and other creative works under the rubric of Dungeons & Dragons, and the trademarks Dungeons & Dragons and D&D. (Compl. 62.)2 The Complaint asserts four causes of action germane to this motion: copyright infringement, trademark infringement, false designation of origin, and trademark dilution. (Id. 61-98.) The Complaint alleges that Sweetpea has infringed the copyrights at issue by producing a motion picture based on a screenplay titled Chainmail. (Id. 5456, 63.) In addition, the Complaint states that by allegedlylicensing Dungeons & Dragons rights to Warner Bros., Sweetpea has infringed Hasbros purported copyrights. (Id. 64.) Not only is this theory legally flawed, notably, no such licensing agreement has been reached. (Separate Statement of Material Facts and Conclusions of Law (SSMF) 6, 7.) B. Sweetpeas Prior Motion for Summary Judgment Was Denied Without Prejudice So Hasbro Could Try and Obtain Discovery That May Support Its Copyright and Trademark Infringement Claims

As its initial pleading in response to the Complaint, Sweetpea filed a motion for summary judgment, or in the alternative, partial summary judgment, on June 17,

Although it is not germane to this motion, Sweetpea disputes that Hasbro has an interest in the copyrights and trademarks it alleges Sweetpea infringes. As set forth in Sweetpeas Counterclaim, Hasbros predecessor licensed those copyrights and trademarks to Sweetpea, and under that license, Sweetpea continues to have the right to use the copyrights and trademarks, and to sue others, including Hasbro, for infringement. 3
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2013. (Dkt. # 18.) Sweetpeas motion sought, among other things, summary judgment on Plaintiffs copyright and trademark claims on the grounds that Plaintiffs could not establish a prima facie case on those claims. (See generally id.) The Court denied Sweetpeas motion without prejudice. (Dkt # 61 at 1.) The Court addressed only one argument from Plaintiffs opposition: Plaintiffs request that the motion be denied pursuant to Rule 56(d) because Plaintiffs had not had an opportunity to conduct discovery. (Id. at 1.) The Court found that Plaintiffs are entitled to try to meet their burden of proof on the copyright and trademark claims with the aid of discovery, and that the motion was premature. (Id. at 5.) Discovery has now been conducted, yet there are no additional facts to support Hasbros claims. C. Hasbro Had Ample Opportunity to Conduct Discovery on Its Copyright and Trademark Claims

Sweetpea has cooperated in discovery. It has produced thousands of documents. (Basinger Decl. 6.) The parties have resolved all discovery disputes informally without resorting to motion practice. (Id. 7.) Courtney Solomon, Sweetpeas principal, appeared for deposition, as did Sweetpea. (Id. 8.) Hasbro also deposed Warner Bros. and obtained testimony and documents relating to Warner Bros. discussions with Solomon regarding Chainmail. (Id. 9.) Fact discovery closed on November 29, 2013. (Id. 10) Although the parties are cooperating to allow depositions to take place after the close of discovery, provided the depositions were noticed before the close of discovery, Hasbro has not noticed the deposition of any witnesses that would have evidence relating to its copyright or trademark claims. (Id.) III. STANDARD OF REVIEW In federal court, summary judgment is required under Fed. R. Civ. P. 56(c) when the evidence, viewed in the light most favorable to the nonmoving party, shows that there is no genuine issue as to any material fact. See Tarin v. County of Los Angeles, 123 F.3d 1259, 1263 (9th Cir. 1997). The moving party bears the initial 4
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burden of establishing the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323-24 (1986). That burden may be met by showingthat is, pointing out to the district courtthat there is an absence of evidence to support the nonmoving partys case. Id. at 325; Fairbank v. Wunderman Cato Johnson, 212 F .3d 528, 532 (9th Cir. 2000) (holding that the Celotex showing can be made by pointing out through argument the absence of evidence to support plaintiffs claim); see also Fed. R. Civ. P. 56(c)(1)(B) (a party asserting that a fact cannot be disputed may support the assertion by showing that an adverse party cannot produce admissible evidence to support the fact.); Committee Notes on Rule 562010 Amendment (Subdivision (c)(1)(B) recognizes that a party need not always point to specific record materials. [A] party who does not have the trial burden of production may rely on a showing that a party who does have the trial burden cannot produce admissible evidence to carry its burden as to the fact.). Once the moving party has met its initial burden, Rule 56(e) requires the nonmoving party to go beyond the pleadings and identify facts which show a genuine issue for trial. See Celotex, 477 U.S. at 323-24; Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). IV. ARGUMENT A. Hasbro Cannot Establish That Sweetpea Created Any Work That Allegedly Infringes Hasbros Copyrights

Summary judgment must be granted on Hasbros copyright claim because Hasbro cannot present evidence of any work by Sweetpea that allegedly infringes the copyrights purportedly owned by Hasbro. Identification of the work or product that Sweetpea allegedly infringed is fundamental to a copyright claim, and Hasbros complete absence of evidence on that issue is fatal to its copyright claim. See Fairbank, 212 F .3d at 532 (the moving party may meet its initial burden on summary judgment by pointing out through argument the absence of evidence to support 5
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plaintiffs claim); Fed. R. Civ. P. 56(c)(1)(B) (a party asserting that a fact cannot be disputed may support the assertion by showing that an adverse party cannot produce admissible evidence to support the fact.). To prevail on a copyright infringement claim, a plaintiff must prove: (1) ownership of a valid copyright, and (2) copying of constituent elements of the work that are original. Feist Publns, Inc. v. Rural Tele. Serv. Co., 499 U.S. 340, 361 (1991); Rice v. Fox Broadcasting Co., 330 F.3d 1170, 1173 (9th Cir. 2003). Here, Hasbro cannot point to Sweetpeas copying of constituent elements of the work that are original. Indeed, Hasbro cannot point to any copying by Sweetpea, and this is fatal to the copyrights claim. All Hasbro alleges is that Sweetpea and Warner Bros. have entered into an agreement concerning a possible Dungeons & Dragons film based on the Chainmail script. (Compl. 5455.) But Hasbro cannot establish that Sweetpea created Chainmail or any work derived from Chainmail because that script was written by a third party and without any involvement by Sweetpea. (SSMF 2.) Sweetpea has not licensed anything to Warner Bros., and has not authorized Warner Bros. to proceed with Chainmail. (SSMF 7.) Nor can Hasbro establish that Sweetpea created any derivative work based on Chainmail, after Sweetpea received a copy of the script. After Warner Bros. provided Courtney Solomon with a copy of the Chainmail script, neither he nor Sweetpea created any work in a fixed medium derived from or relating to Chainmail. Solomon did not edit the script. (SSMF 3.) He did not take any notes as he reviewed the script. (Id. 4.) He did not write anything down in connection with the script. (Id. 6.) In other words, Solomon received an allegedly infringing script that he did not write or develop, and reviewed it, but created no derivative work based on that script. Finally, Hasbros mere allegation that Sweetpea licensed Dungeons & Dragons rights to Warner Bros. (Compl. 64) cannot save Hasbro from summary judgment because the allegation is factually untrue. Warner Bros. prepared a draft license agreement and sent it to Courtney Solomon. Solomon, however, did not provide any 6
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comments to the draft agreementlet alone sign itbecause Hasbro filed this lawsuit and interfered with Sweetpeas business. (SSMF 6.) Sweetpea has not purported to transfer any rights to Warner Bros. (Id. 7.) Sweetpea also has not authorized Warner Bros. to proceed with the Chainmail script. (Id.) Hasbro cannot establish that Sweetpea infringed Hasbros purported copyrights by assigning them to a third party, and the Court should enter summary judgment with respect to Hasbros entire copyright claim. B. Summary Judgment of Hasbros Trademark Claims Should Be Granted Because Hasbro Cannot Establish an Alleged Use of the Trademarks by Sweetpea

As with Hasbros copyright claim, its trademark claims are fatally flawed because Hasbro cannot identify an alleged use of its trademarks. To prevail on a claim of trademark infringement under the Lanham Act, the owner of a federally registered mark must show that the defendant used the mark in interstate commerce in connection with the sale, offering for sale, distribution, or advertising of any goods or services, and that such use is likely to cause consumer confusion. 15 U.S.C. 1114(1); see also Network Automation, Inc. v. Advanced Systems Concepts, Inc., 638 F.3d 1137, 114445 (9th Cir. 2011). Here, Defendants cannot show either that its marks were used in interstate commerce or that the use of its trademarks is likely to cause customer confusion. Similar elements apply to claims under for false designation of origin. 15 U.S.C. 1125(a); New West Corp. v. NYM Co. of California, Inc., 595 F.2d 1194, 1201 (9th Cir. 1979). The purpose of the Lanham Act is to deter false designation of origin by prevent[ing] individuals from misleading the public by placing their competitors work forward as their own. Cleary v. News Corp., 30 F.3d 1255, 1260 (9th Cir. 1994). Thus, the Lanham Act makes actionable only designation of origin that causes public confusion or mistake over the true proprietor of a work. 15 U.S.C. 1125(a). 7
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To prove a trademark dilution claim, a plaintiff must demonstrate that the mark used by the alleged diluter is identical, or nearly identical, to the protected mark. Thane Intern., Inc. v. Trek Bicycle Corp., 305 F.3d 894, 905 (9th Cir. 2002). Additionally, the plaintiff also must prove that (1) the mark is famous and distinctive; (2) the defendant is making use of the mark in commerce; (3) the defendants use began after the mark became famous; and (4) the defendants use of the mark is likely to cause dilution by blurring or dilution by tarnishment. Jada Toys, Inc. v. Mattel, Inc., 518 F.3d 628, 634 (9th Cir. 2008) (emphasis added). The Act defines use in commerce as occurring when the subject mark is placed in any manner on the goods and the goods are sold or transported in commerce. 15 U.S.C. 1127. Here, Hasbros trademark claims fail as a matter of law because Hasbro cannot establish that Sweetpea has used its trademarks. It is Hasbros burden to establish that Sweetpea has used its protected trademark in commerce. Hasbro cannot establish that Sweetpea has made use of the D&D Trademarks under trademark law because there is no evidence that Sweetpea produced, released, marketed or advertised a motion picture improperly using a D&D Trademark. Accordingly, summary judgment on Hasbros trademark claims must be granted because Hasbro has no evidence that Sweetpea has used its trademarks. Fairbank, 212 F .3d at 532; Fed. R. Civ. P. 56(c)(1)(B). V. CONCLUSION For the foregoing reasons, and because Hasbro has no evidence that Sweetpea did anything improper with respect to the copyrights and trademarks at issue, this Court should grant summary judgment in favor of Defendants on the First Claim for Copyright Infringement, the Second Claim for Federal Trademark Infringement, the Third Claim for Relief for False Designation of Origin and Unfair Competition, and the Fourth Claim for Relief for Trademark Dilution. 8
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DATED: December 13, 2013

GLASER WEIL FINK JACOBS HOWARD AVCHEN & SHAPIRO LLP By: /s/ G. Jill Basinger PATRICIA L. GLASER G. JILL BASINGER DAVID SERGENIAN Attorneys for Defendants Sweetpea Entertainment, Inc. and Sweetpea B.V.I. Ltd.

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