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Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 1 of 10

IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF ALABAMA

SOUTHERN DIVISION

CHIROPARTNERS, INC., BACK
ON TRACK CHIROPRACTIC &
WELLNESS CENTER, P.C., DR.
RICHARD RIZZUTO, and DR.
BETH SCHERER,

Plaintiffs,

vs.

Civil Action No: 1:12-cv-00223

*

*

*

*

STEVEN W. GRAVELY and
JANE V. GRAVELY,

Defendants.

Defendants’ Answer

To The Second Amended Complaint



Come Now Steven W. Gravely and Jane V. Gravely, Defendants, and respond

to the Second Amended Complaint as follows:

1.

Defendants lack knowledge or information sufficient to form a belief

about the truth of the allegations set forth in Paragraph 1 of the Second Amended

Complaint.

2.

Defendants lack knowledge or information sufficient to form a belief

about the truth of the allegations set forth in Paragraph 2 of the Second Amended

Complaint.

Answer To Second
Amended Complaint

Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 2 of 10

3.

Defendants admit that ChiroPartners, Inc., is an Alabama corporation.

Defendants deny all other allegations set forth in Paragraph 3 of the Second Amended

Complaint.

4.

Defendants admit that Back on Track Chiropractic & Wellness Center,

P.C. is an Alabama corporation. Defendants deny all other allegations set forth in

Paragraph 4 of the Second Amended Complaint.

5.

Defendants admit that Dr. Richard Rizzuto is an individual residing in

Baldwin County, Alabama. Defendants deny all other allegations set forth in

Paragraph 5 of the Second Amended Complaint.

6.

Defendants admit that Dr. Beth Scherer is an individual residing in

Jefferson County, Alabama. Defendants deny all other allegations set forth in

Paragraph 5 of the Second Amended Complaint.

7.

8.

9.

Admitted.

Admitted.

Denied.

10. Admitted.

11. Admitted.

12. Defendants admit that after Defendants moved on April 24, 2012, [Doc.

8] to dismiss the original complaint in this action, Dr. Richard Rizzuto signed an

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Answer To Second
Amended Complaint

Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 3 of 10

undated purported assignment of rights in the Mark to Chiropartners, Inc. Defendants

lack knowledge or information sufficient to form a belief about the truth of the

allegations set forth in Paragraph 12 of the Second Amended Complaint regarding

any assignment of rights in the Mark by Dr. Beth Scherer. Defendants deny all other

allegations set forth in Paragraph 12 of the Second Amended Complaint.

13. Defendants lack knowledge or information sufficient to form a belief

about the truth of the allegations set forth in Paragraph 13 of the Second Amended

Complaint.

14. Defendants lack knowledge or information sufficient to form a belief

about the truth of the allegations set forth in Paragraph 14 of the Second Amended

Complaint.

15. Defendants lack knowledge or information sufficient to form a belief

about the truth of the allegations set forth in Paragraph 15 of the Second Amended

Complaint.

16. Defendants lack knowledge or information sufficient to form a belief

about the truth of the allegations set forth in Paragraph 16 of the Second Amended

Complaint.

17. Defendants admit that on January 3, 2006, Chiropartners, Inc., purported

to grant to Gravely Chiropractic PC a license to use the Mark, even though

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Answer To Second
Amended Complaint

Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 4 of 10

Chiropartners, Inc., had no rights in the Mark at that time. Defendants deny all other

allegations set forth in Paragraph 12 of the Second Amended Complaint.

18. Denied.

19. Admitted.

20. Defendants admit that or or around February 12, 2011, Defendant Jane

V. Gravely filed an application with the United States Patent Trademark Office to

register the lapsed Mark. Defendants deny all other allegations set forth in Paragraph

20 of the Second Amended Complaint.

21. Denied.

22. Denied.

23. Denied.

24. Denied.

25. Denied.

Count 1

Federal Trademark Infringement

(15 U.S.C. §1125)



26. Defendants adopt, incorporate, and re-aver Paragraphs 1 through 25 of

this Answer.

27. Denied.

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Answer To Second
Amended Complaint

Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 5 of 10

28. Denied.

29. Denied.

30. Denied.

31. Denied.

Count 2

Alabama Common Law Trademark Infringement


32. Defendants adopt, incorporate, and re-aver Paragraphs 1 through 31 of

this Answer.

33. Denied.

34. Denied.

35. Denied.

Count 3

False or Fraudulent Trademark Registration

(15 U.S.C. §1120)



36. Defendants adopt, incorporate, and re-aver Paragraphs 1 through 35 of

this Answer.

37. Denied.

38. Denied.

39. Denied.

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Answer To Second
Amended Complaint

Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 6 of 10

40. Denied.

41. Denied.

42. Denied.

43. Denied.

44. Denied.

Count 4

Unfair Competition



45. Defendants adopt, incorporate, and re-aver Paragraphs 1 through 44 of

this Answer.

46. Denied.

47. Denied.

48. Denied.

49. Denied.

Count 5

Interference With Business Relations



50. Defendants adopt, incorporate, and re-aver Paragraphs 1 through 49 of

this Answer.

51. Denied.

52. Denied.

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Answer To Second
Amended Complaint

Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 7 of 10

53. Denied.

54. Denied.

55. Denied.

56. Denied.

Count 6

Breach of Contract

Failure To Pay Amounts Due



57. Defendants adopt, incorporate, and re-aver Paragraphs 1 through 56 of

this Answer.

58. Denied.

59. Denied.

60. Denied.

Count 7

Attorney’s Fees
(15 U.S.C. §1117)



61. Defendants adopt, incorporate, and re-aver Paragraphs 1 through 60 of

this Answer.

62. Denied.

63. Denied.

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Answer To Second
Amended Complaint

Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 8 of 10

Denial of All Other Claims



Defendants deny all other claims, allegations, assertions, averments, and/or

prayers for relief in the Second Amended Complaint not heretofore admitted.

First Affirmative Defense



Plaintiffs do not have the exclusive right to own, use, and license the Mark

because parties other than the Plaintiffs or their alleged licensees are using the Mark

and because parties other than the Plaintiffs or their alleged licensees have currently

registered the Mark for the same general international class of goods and services.

Second Affirmative Defense



Plaintiffs have lost any rights that they had to the Mark through misuse and

abandonment.

Third Affirmative Defense



Plaintiffs’ failure to exercise appropriate control and supervision over their

licensees concerning the use of the Mark constitutes abandonment and misuse of the

trademark protection for the Mark.

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Answer To Second
Amended Complaint

Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 9 of 10

Fourth Affirmative Defense



Plaintiffs are barred by laches from asserting their claims against the

Defendants.

Respectfully submitted,

STEVEN W. GRAVELY and JANE V.
GRAVELY,

By Their Attorney:

Edward G. Hawkins
HAWKINS LAW FIRM, L.L.C.
306 St. Francis Street
Mobile, Alabama 36602
251-690-7799 FAX 251-690-7330
[email protected]

By:

EDWARD G. HAWKINS
HAWKE7776

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Answer To Second
Amended Complaint

Case 1:12-cv-00223-CG-C Document 42 Filed 11/09/12 Page 10 of 10

CERTIFICATE OF SERVICE

I hereby certify that on this the 9 day of November, 2012, I electronically filed
the foregoing pleading with the Clerk of the Court using the CM/ECF system, and I
request the Court to serve the same electronically upon the following counsel:

th

Will Hill Tankersley (TANKW5375)
Balch & Bingham LLP
Post Office Box 306
Birmingham, AL 35201-0306
Telephone: (205) 251-8100
Facsimile: (205) 226-5613
[email protected]

Attorney for Chiropartners, Inc.

Neah L. Mitchell (MITC0033)
Balch & Bingham LLP
Post Office Box 78
Montgomery, AL 36101-0078
Telephone: (334) 834-6500
Facsimile: (334) 269-3115
[email protected]

Attorney for Chiropartners, Inc.



EDWARD G. HAWKINS

Gravely, Ans 01.121109.wpd

G

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Answer To Second
Amended Complaint