yeti enterprises npk response
TRANSCRIPT
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Page 1 - DEFENDANT NPK, LLCS AND ORION TANGS ANSWER,AFFIRMATIVE DEFENSES, AND COUNTERCLAIMSTO PLAINTIFFS COMPLAINT
Rene E. Rothauge, OSB #[email protected] M. Edelson, OSB #[email protected], HERBOLD, GLADE& MEHLHAF, P.C.
1211 SW Fifth Avenue, Suite 3000Portland, OR 97204-3730Tel: (503) 295-3085Fax: (503) 323-9105
Attorneys for Defendant NPK, LLC
Robert B. Miller, OSB #[email protected] VOORHEES & LAURICK PC732 NW 19th AvenuePortland, OR 97209Tel: (503) 224-0055
Fax: (503) 222-5290Attorneys for Defendant Orion Tang
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
YETI ENTERPRISES INCORPORATED,an Oregon corporation,
Plaintiff,
vs.
NPK, LLC, f/k/a N.P.K. DISTRIBUTORS,LLC, an Oregon Limited Liability Company,and ORION TANG, an individual,
Defendants.
CV No.: 3:13-cv-01203-ST
DEFENDANTS NPK, LLCS ANDORION TANGS ANSWER,
AFFIRMATIVE DEFENSES, ANDCOUNTERCLAIMS TO PLAINTIFFS
COMPLAINT
DEMAND FOR JURY TRIAL
Defendants NPK, LLC (NPK) and Orion Tang (Tang, and together with NPK,
Defendants) respond to plaintiffs (Yeti) complaint with the following answer, affirmative
defenses, and counterclaims:
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ANSWER RESPONDING TO ALLEGATIONS IN THE COMPLAINT
I. PARTIES, JURISDICTION AND VENUE1.
Defendants admit Yeti is a corporation incorporated under the laws of Oregon with its
principal place of business in Medford, Oregon, and engages in the business of manufacturing
and selling plant washes. Defendants are without knowledge or information sufficient to form a
belief as to the truth of the remaining allegations in paragraph 1 of the complaint, and therefore
deny them.
2.
In response to the allegations in paragraph 2 of the complaint, Defendants admit that
NPK is an Oregon limited liability company with a principal place of business in Medford,
Oregon, and sells and distributes horticulture products. Defendants deny all remaining
allegations in paragraph 2 of the complaint.
3.
Paragraph 3 of the complaint consists of plaintiffs legal conclusions and
characterizations of the claims in the complaint, and not factual allegations that require a
response. To the extent a response is required, Defendants deny the allegations in paragraph 3 of
the complaint.
4.
Defendants admit the allegations in paragraph 4 of the complaint for the purpose of venue
only.
II. GENERAL ALLEGATIONS5.
Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 5 of the complaint, and therefore deny them.
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6.
Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 6 of the complaint, and therefore deny them.
7.
Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 7 of the complaint, and therefore deny them.
8.
Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 8 of the complaint, and therefore deny them.
9.
In response to the allegations in paragraph 9 of the complaint, Defendants admit that Yeti
and NPK entered into a Distribution Agreement dated November 11, 2010, attached as exhibit A
to the complaint. Defendants further state that the Distribution Agreement attached as exhibit A
to the complaint speaks for itself. Defendants deny all remaining allegations in paragraph 9 of
the complaint.
10.
In response to the allegations in paragraph 10 of the complaint, Defendants admit that
after the Distribution Agreement dated November 11, 2010, attached as exhibit A to the
complaint was executed, Yeti and NPK executed an agreement titled Yeti Final Proposal, and
a tote is a plastic vessel that contains 260 gallons of liquid. Defendants further state that the
Yeti Final Proposal agreement speaks for itself. Defendants deny all remaining allegations in
paragraph 10 of the complaint.
11.
In response to the allegations in paragraph 11 of the complaint, Defendants state that the
Distribution Agreement attached as exhibit A to the complaint speaks for itself. Defendants
deny all remaining allegations in paragraph 11 of the complaint.
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12.
In response to the allegations in paragraph 12 of the complaint, Defendants admit that
pursuant to the Distribution Agreement attached as exhibit A to the complaint, NPK bottled,
labeled, marketed, and physically distributed three plant washes: Mighty Wash, PM Wash,
and Power Wash. Defendants deny all remaining allegations in paragraph 12 of the complaint.
13.
In response to the allegations in paragraph 13 of the complaint, Defendants admit that the
U.S. Patent and Trademark Office granted NPK a trademark for Mighty Wash, U.S.
Trademark Registration No. 4,121,193. Defendants further state that U.S. Trademark
Registration No. 4,121,193 and any associated application materials speak for themself.
Defendants deny all remaining allegations in paragraph 13 of the complaint.
14.
In response to the allegations in paragraph 14 of the complaint, Defendants admit that the
U.S. Patent and Trademark Office granted NPK a trademark for Mighty Wash, U.S.
Trademark Registration No. 4,241,438. Defendants further state that U.S. Trademark
Registration No. 4,241,438 and any associated application materials speak for themself.
Defendants deny all remaining allegations in paragraph 14 of the complaint.
15.
In response to the allegations in paragraph 15 of the complaint, Defendants admit that on
March 29, 2012, the U.S. Environmental Protection Agency (EPA) issued a stop sale, use, or
removal order to NPK, which prohibited NPKs sale or distribution of Mighty Wash, PM
Wash, and Power Wash. Defendants deny all remaining allegations in paragraph 15 of the
complaint.
16.
In response to the allegations in paragraph 16 of the complaint, Defendants admit that
after the EPA issued its stop sale, use, or removal order to NPK, NPK changed its labels for
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Mighty Wash, PM Wash, and Power Wash. Defendants further state that the labels speak
for themself. Defendants deny all remaining allegations in paragraph 16 of the complaint.
17.
Defendants deny the allegations in paragraph 17 of the complaint.
18.
Defendants deny the allegations in paragraph 18 of the complaint.
19.
Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 19 of the complaint, and therefore deny them.
20.
Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 20 of the complaint, and therefore deny them.
21.
Defendants are without knowledge or information sufficient to form a belief as to the
truth of the allegations in paragraph 21 of the complaint, and therefore deny them.
22.
Defendants deny the allegations in paragraph 22 of the complaint.
23.
Defendants deny the allegations in paragraph 23 of the complaint that NPK is advertising
using Yetis Marks as defined by Yeti and causing consumer confusion in the marketplace.
Defendants further state they are without knowledge or information sufficient to form a belief as
to the truth of the remaining allegations in paragraph 23 of the complaint, and therefore deny
them.
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24.
Defendants admit NPK agreed to change any NPK ads that said From the Creators of
Mighty Wash to From the Distributors of Mighty Wash. Defendants deny all remaining
allegations contained in paragraph 24 of the complaint.
25.
Defendants deny the allegations in paragraph 25 of the complaint.
26.
Defendants deny the allegations in paragraph 26 of the complaint.
27.
Defendants deny the allegations in paragraph 27 of the complaint.
28.
Defendants deny the allegations in paragraph 28 of the complaint.
29.
Defendants deny the allegations in paragraph 29 of the complaint.
30.
In response to the allegations in paragraph 30 of the complaint, Defendants deny that
NPK used Yetis Marks as defined by Yeti. Defendants further deny the remaining allegations in
paragraph 30 of the complaint.
31.
In response to the allegations in paragraph 31 of the complaint, Defendants admit that
NPK filed a complaint for tortious interference with contractual relations against Yeti in Jackson
County Circuit Court, case no. 13CV01641, later stipulated to a voluntarily dismissal without
prejudice, and the Distribution Agreement attached as exhibit A to the complaint contains an
exclusive venue provision for Multnomah County. Defendants further state they are without
knowledge or information sufficient to form a belief as to the truth of the remaining allegations
in paragraph 31 of the complaint, and therefore deny them.
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III. CLAIM FOR RELIEFA. FIRST CLAIM FOR RELIEF (AGAINST NPK) Trademark infringement
and unfair competition 15 U.S.C. 1125(a).
32.
In response to the allegations in paragraph 32 of the complaint, Defendants incorporate
by reference each and every response set forth above.
33.
Defendants deny the allegations in paragraph 33 of the complaint.
34.
Defendants deny the allegations in paragraph 34 of the complaint.
35.
In response to the allegations in paragraph 35 of the complaint, Defendants deny that
NPK used Yetis Marks as defined by Yeti. Defendants are without knowledge or information
sufficient to form a belief as to the truth of the remaining allegations in paragraph 35 of the
complaint, and therefore deny them.
36.
Defendants deny the allegations in paragraph 36 of the complaint.
37.
Defendants deny the allegations in paragraph 37 of the complaint.
38.
Defendants deny the allegations in paragraph 38 of the complaint.
39.
Defendants deny the allegations in paragraph 39 of the complaint.
40.
Defendants deny the allegations in paragraph 40 of the complaint.
41.
Defendants deny the allegations in paragraph 41 of the complaint.
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B. SECOND CLAIM FOR RELIEF (AGAINST NPK) False advertising 15 U.S.C. 1125(a).
42.
In response to the allegations in paragraph 42 of the complaint, Defendants incorporate
by reference each and every response set forth above.
43.
Defendants deny the allegations in paragraph 43 of the complaint.
44.
Defendants deny the allegations in paragraph 44 of the complaint.
45.
Defendants deny the allegations in paragraph 45 of the complaint.
46.
Defendants deny the allegations in paragraph 46 of the complaint.
47.
Defendants deny the allegations in paragraph 47 of the complaint.
48.
Defendants deny the allegations in paragraph 48 of the complaint.
49.
Defendants deny the allegations in paragraph 49 of the complaint.
50.
Defendants deny the allegations in paragraph 50 of the complaint.
51.
Defendants deny the allegations in paragraph 51 of the complaint.
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C. THIRD CLAIM FOR RELIEF (AGAINST NPK) Common lawinfringement and unfair competition.
52.
In response to the allegations in paragraph 52 of the complaint, Defendants incorporate
by reference each and every response set forth above.
53.
In response to the allegations in paragraph 53 of the complaint, Defendants deny that
NPK unlawfully used any marks owned by Yeti. Defendants are without knowledge or
information sufficient to form a belief as to the truth of the remaining allegations contained in
paragraph 53 of the complaint, and therefore deny them.
54.
In response to the allegations in paragraph 54 of the complaint, Defendants deny that
NPK misappropriated any marks owned by Yeti. Defendants are without knowledge or
information sufficient to form a belief as to the truth of the remaining allegations contained in
paragraph 54 of the complaint, and therefore deny them.
55.
Defendants deny the allegations in paragraph 55 of the complaint.
56.
Defendants deny the allegations in paragraph 56 of the complaint.
57.
Defendants deny the allegations in paragraph 57 of the complaint.
58.
Defendants deny the allegations in paragraph 58 of the complaint.
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D. FOURTH CLAIM FOR RELIEF (AGAINST NPK AND TANG)1. Fraud Federal Trademark Registration, Count I.
59.
In response to the allegations in paragraph 59 of the complaint, Defendants incorporate
by reference each and every response set forth above.
60.
Defendants deny the allegations in paragraph 60 of the complaint.
61.
Defendants deny the allegations in paragraph 61 of the complaint.
62.
Defendants deny the allegations in paragraph 62 of the complaint.
63.
Defendants deny the allegations in paragraph 63 of the complaint.
2. Fraud Federal Trademark Registration, Count II.64.
In response to the allegations in paragraph 64 of the complaint, Defendants incorporate
by reference each and every response set forth above.
65.
Defendants deny the allegations in paragraph 65 of the complaint.
66.
Defendants deny the allegations in paragraph 66 of the complaint.
67.
Defendants deny the allegations in paragraph 67 of the complaint.
68.
Defendants deny the allegations in paragraph 68 of the complaint.
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E. FIFTH CLAIM FOR RELIEF (AGAINST NPK) Common law fraud.69.
In response to the allegations in paragraph 69 of the complaint, Defendants incorporate
by reference each and every response set forth above.
70.
In response to the allegations in paragraph 70 of the complaint, Defendants admit that on
March 29, 2012 the U.S. Environmental Protection Agency (EPA) issued a stop sale, use, or
removal order to NPK, which prohibited NPKs sale or distribution of Mighty Wash, PM
Wash, and Power Wash. Defendants deny the remaining allegations in paragraph 70 of the
complaint.
71.
Defendants deny the allegations in paragraph 71 of the complaint.
72.
Defendants deny the allegations in paragraph 72 of the complaint.
73.
Defendants deny the allegations in paragraph 73 of the complaint.
74.
Defendants deny the allegations in paragraph 74 of the complaint.
F. SIXTH CLAIM FOR RELIEF (AGAINST NPK)1. Breach of contract, Count I.
75.
In response to the allegations in paragraph 75 of the complaint, Defendants incorporate
by reference each and every response set forth above.
76.
In response to the allegations in paragraph 76 of the complaint, Defendants admit that
Yeti and NPK executed a Distribution Agreement dated November 11, 2010, attached as exhibit
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A to the complaint. Defendants further state that the Distribution Agreement attached as exhibit
A to the complaint speaks for itself. Defendants deny all remaining allegations in paragraph 76
of the complaint.
77.
Defendants deny the allegations in paragraph 77 of the complaint.
78.
Defendants deny the allegations in paragraph 78 of the complaint.
79.
Defendants deny the allegations in paragraph 79 of the complaint.
80.
Defendants deny the allegations in paragraph 80 of the complaint.
2. Breach of contract, Count II.81.
In response to the allegations in paragraph 81 of the complaint, Defendants incorporate
by reference each and every response set forth above.
82.
In response to the allegations in paragraph 82 of the complaint, Defendants admit that
Yeti and NPK executed a Distribution Agreement dated November 11, 2010, attached as exhibit
A to the complaint. Defendants further state that the Distribution Agreement attached as exhibit
A to the complaint speaks for itself. Defendants deny all remaining allegations in paragraph 82
of the complaint.
83.
Defendants deny the allegations in paragraph 83 of the complaint.
84.
Defendants deny the allegations in paragraph 84 of the complaint.
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85.
Defendants deny the allegations in paragraph 85 of the complaint.
86.
Defendants deny the allegations in paragraph 86 of the complaint.3. Breach of contract, Count III.
87.
In response to the allegations in paragraph 87 of the complaint, Defendants incorporate
by reference each and every response set forth above.
88.
In response to the allegations in paragraph 88 of the complaint, Defendants admit that
Yeti and NPK executed a Distribution Agreement dated November 11, 2010, attached as exhibit
A to the complaint. Defendants further state that the Distribution Agreement attached as exhibit
A to the complaint speaks for itself. Defendants deny all remaining allegations in paragraph 88
of the complaint.
89.
Defendants deny the allegations in paragraph 89 of the complaint.
90.
Defendants deny the allegations in paragraph 90 of the complaint.
91.
Defendants deny the allegations in paragraph 91 of the complaint.
92.
Defendants deny the allegations in paragraph 92 of the complaint.
4. Breach of contract, Count IV.93.
In response to the allegations in paragraph 93 of the complaint, Defendants incorporate
by reference each and every response set forth above.
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94.
In response to the allegations in paragraph 94 of the complaint, Defendants admit that
Yeti and NPK executed a Distribution Agreement dated November 11, 2010, attached as exhibit
A to the complaint. Defendants further state that the Distribution Agreement attached as exhibit
A to the complaint speaks for itself. Defendants deny all remaining allegations in paragraph 94
of the complaint.
95.
Defendants deny the allegations in paragraph 95 of the complaint.
96.
Defendants deny the allegations in paragraph 96 of the complaint.
97.
Defendants deny the allegations in paragraph 97 of the complaint.
98.
Defendants deny the allegations in paragraph 98 of the complaint.
G. SEVENTH CLAIM FOR RELIEF (AGAINST NPK) Breach of impliedcovenant of good faith and fair dealing.
99.
In response to the allegations in paragraph 99 of the complaint, Defendants incorporate
by reference each and every response set forth above.
100.
In response to the allegations in paragraph 100 of the complaint, Defendants admit that
Yeti and NPK executed a Distribution Agreement dated November 11, 2010, attached as exhibit
A to the complaint. Defendants further state that the Distribution Agreement attached as exhibit
A to the complaint speaks for itself. Defendants deny all remaining allegations in paragraph 100
of the complaint.
101.
Defendants deny the allegations in paragraph 101 of the complaint.
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102.
In response to the allegations in paragraph 102 of the complaint, Defendants admit that
Yeti and NPK executed a Distribution Agreement dated November 11, 2010, attached as exhibit
A to the complaint. Defendants further state that the Distribution Agreement attached as exhibit
A to the complaint speaks for itself. Defendants deny all remaining allegations in paragraph 102
of the complaint.
103.
Defendants deny the allegations in paragraph 103 of the complaint.
104.
Defendants deny the allegations in paragraph 104 of the complaint.
105.
Defendants deny the allegations in paragraph 105 of the complaint.
H. EIGHTH CLAIM FOR RELIEF (AGAINST NPK) Declaratory judgment,ORS Chapter 28.
106.
In response to the allegations in paragraph 106 of the complaint, Defendants incorporate
by reference each and every response set forth above.
107.
Defendants admit that there is a controversy between the parties. Defendants deny all
remaining allegations contained in paragraph 107 of the complaint.
108.
Defendants admit the allegations in paragraph 108 of the complaint for the purpose of
venue only.
109.
Defendants deny the allegations in paragraph 109 of the complaint.
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110.
Except as specifically admitted, Defendants deny each and every allegation in the
complaint.
AFFIRMATIVE AND ADDITIONAL DEFENSES
111.
Defendants assert the following affirmative defenses, without assuming any burden that
would otherwise rest with plaintiff.
FIRST AFFIRMATIVE DEFENSE(Failure to State a Claim)
112.
Plaintiffs complaint and the purported causes of action set forth therein fail to state a
claim against Defendants upon which relief can be granted.
SECOND AFFIRMATIVE DEFENSE(Failure to Allege Fraud with Particularity)
113.
Some or all of plaintiffs claims fail to allege fraud with particularity.
THIRD AFFIRMATIVE DEFENSE
(Laches)
114.
Plaintiff is not entitled to maintain some or all of its claims because of the doctrine of
laches. Plaintiff waited an unreasonable length of time to bring its trademark infringement
claims. Plaintiff was aware that NPK continuously used the trademarks for Mighty Wash,
PM Wash, Power Wash, the Power Button, and the Frequency Logo (NPKs Marks)
for more than two years. Plaintiff failed to inform NPK of, or enforce, its purported ownershipof NPKs Marks. Plaintiffs delay in bringing its trademark claims prejudiced NPK because of
its substantial investment in promotion and advertising of NPKs Marks.
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FOURTH AFFIRMATIVE DEFENSE(Estoppel, Waiver, and Acquiescence)
115.
Plaintiff is not entitled to maintain some or all of its claims because of the doctrine ofestoppel, waiver, and acquiescence. NPKs Marks have been in open, continuous and extensive
use by NPK for more than two years prior to the filing of this complaint, to the knowledge of
plaintiff, with no attempt on plaintiffs part to obtain a judicial determination of its alleged rights
with respect to NPKs use of its marks. NPK has relied to its detriment upon plaintiffs
acquiescence and delay, and has continued use of its marks and invested substantial sums in
promotion and advertising of said marks. For these reasons, plaintiff is estopped to allege that
any acts of Defendants now constitute an infringement of plaintiffs alleged trademark rights.
FIFTH AFFIRMATIVE DEFENSE(Abandonment)
116.
Plaintiff is not entitled to maintain some or all of its claims because it has abandoned
rights in the marks by either discontinuing its use of the marks with express or implied intent not
to continue use, or failing to exercise adequate quality control over the goods sold under the
trademarks.
SIXTH AFFIRMATIVE DEFENSE(Plaintiff is Not the True Owner of the Marks)
117.
Plaintiff is not entitled to maintain some or all of its claims because it is not the true
owner of NPKs Marks by either NPK being the first to use its marks in the marketplace,
consumers associating NPKs marks with NPK, NPKs registration of the Mighty Wash markwith the U.S. Patent and Trademark Office, or agreement between NPK and Yeti.
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SEVENTH AFFIRMATIVE DEFENSE(Continuous Prior Use)
118.
Some or all of plaintiffs claims are barred by the doctrine of continuous prior use.
EIGHTH AFFIRMATIVE DEFENSE(Good Faith)
119.
Some or all of plaintiffs state claims are barred by the doctrine of good faith.
NINTH AFFIRMATIVE DEFENSE(Unclean Hands)
120.
Some or all of plaintiffs claims are barred by the doctrine of unclean hands because
plaintiff engaged in conduct including, but not limited to, knowingly filing an application for
registration of the mark That Stuff Mighty Wash with the U.S. Patent and Trademark Office,
Serial No. 85806351, after NPK already registered its marks for Mighty Wash, refusing to
supply NPK with plant washes, and adding obligations to NPK that the parties never agreed to,
or bargained for, in order for Yeti to supply NPK with plant washes pursuant to the Distribution
Agreement and its amendments.
TENTH AFFIRMATIVE DEFENSE(Statute of Limitations)
121.
Some or all of plaintiffs state claims are barred by statute of limitations.
ELEVENTH AFFIRMATIVE DEFENSE(Repudiation)
122.
Some or all of plaintiffs claims are barred because plaintiff repudiated the Distribution
Agreement and its amendments.
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TWELFTH AFFIRMATIVE DEFENSE(Payment)
123.
Some or all of plaintiffs claims are barred by the doctrine of payment.
THIRTEENTH AFFIRMATIVE DEFENSE(Accord and Satisfaction)
124.
Some or all of plaintiffs claims are barred by the doctrine of accord and satisfaction.
FOURTEENTH AFFIRMATIVE DEFENSE(Waiver)
125.
Some or all of plaintiffs contract related claims are barred by the doctrine of waiver.
FIFTHEENTH AFFIRMATIVE DEFENSE(Commercial Impossibility or Impracticability)
126.
Some or all of plaintiffs claims are barred by the doctrine of commercial impossibility or
impracticability.
SIXTEENTH AFFIRMATIVE DEFENSE(Unconscionable Contract or Terms)
127.
Some or all of plaintiffs claims are barred because of an unconscionable contract or
unconscionable contract terms.
SEVENTEENTH AFFIRMATIVE DEFENSE(Failure of Consideration)
128.
Some or all of plaintiffs claims are barred due to failure of consideration because
plaintiff refused to supply contractual goods to NPK.
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EIGHTEENTH AFFIRMATIVE DEFENSE(Immaterial Breach)
129.
Some or all of plaintiffs claims are barred because any alleged breach of contract was an
immaterial breach.
NINETEENTH AFFIRMATIVE DEFENSE(Sufficiency of Notice)
130.
Some or all of plaintiffs claims are barred because of insufficient notice of any alleged
violations or breaches.
TWENTIEENTH AFFIRMATIVE DEFENSE(Additional Defenses)
131.
Defendants may have additional defenses that cannot now be articulated due to the
generality of plaintiffs pleadings and the fact that discovery has not yet begun. Accordingly,
Defendants expressly reserve the right to supplement the foregoing and to plead any and all
additional defenses available under the law.
DEMAND FOR JURY TRIAL
132.
Defendants demand a jury trial in this action.
WHEREFORE, having fully answered plaintiffs complaint and having asserted
affirmative and additional defenses, Defendants respectfully pray for judgment as follows:
A. That plaintiffs claims against Defendants be dismissed in their entirety and
with prejudice;
B. That plaintiff takes nothing;
C. That the Court enter judgment in Defendants favor;
D. That Defendants recover reasonable attorney fees, expenses, and costs; and
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E. For any other just relief.
COUNTERCLAIMS
NPK alleges as follows:
PARTIES, JURISDICTION, AND VENUE
1.
NPK is a limited liability company incorporated under the laws of Oregon with its
principal place of business in Medford, Oregon.
2.
NPK is engaged in the business of manufacturing, distributing, and marketing garden
supplies and materials.
3.
Orion Tang (Tang) is an individual who resides in Medford, Oregon and is NPKs vice
president.
4.
Yeti is a corporation incorporated under the laws of Oregon with its principal place of
business in Medford, Oregon.
5.
Yeti is engaged in the business of manufacturing and selling plant washes.
6.
This Court has original jurisdiction over plaintiffs and NPKs trademark claims under 28
U.S.C. 1331, 28 U.S.C. 1338, and 15 U.S.C. 1125, NPKs and Tangs federal declaratory
judgment claims under 28 U.S.C. 2201 and 28 U.S.C. 2202, and supplemental jurisdiction
over NPKs remaining state law claims pursuant to 28 U.S.C. 1367.
7.
Venue is proper in the United States District Court for the District of Oregon pursuant to
28 U.S.C. 1391 because NPK and Tang reside in the State of Oregon and sells products in the
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State of Oregon. Venue is also proper in the Portland Division pursuant to LR 3-2 because the
contract at issue contains an exclusive venue provision for Multnomah County.
FIRST CLAIM FOR RELIEF(Breach of Contract)
8.
NPK realleges and incorporates all previous paragraphs of its counterclaim as if fully
stated herein.
9.
On November 11, 2010, NPK and Yeti executed a ten year Distribution Agreement,
attached as exhibit A to the complaint, for NPK to bottle, label, market, and physically distribute
three different plant washes supplied by Yeti.
10.
On February 17, 2012, NPK and Yeti executed an agreement titled Yeti Final Proposal
that modified certain terms of the Distribution Agreement and expressed other terms of the
parties business relationship. On April 4, 2013, Yeti further modified certain delivery terms of
the Distribution Agreement.
11.
The Distribution Agreement and its amendments are valid and binding contracts between
NPK and Yeti.
12.
Yeti breached the Distribution Agreement and its amendments in, at least, the following
particulars:
a) Yeti unilaterally and arbitrarily increased prices for plant washes without
sufficient notice;
b) Yeti also unilaterally and arbitrarily shortened the due date for payment of
invoices;
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c) Yeti stopped supplying NPK with plant washes unless NPK immediately agreed
to Yetis unilateral and arbitrary changes to the terms of the parties agreements;
d) Yeti repudiated the Distribution Agreement before the ten year term expired.
13.
NPK has substantially performed its obligations under the Distribution Agreement and its
amendments or is otherwise excused from such performance by Yetis actions.
14.
As a result of Yetis breach, NPK has suffered damages in an amount to be determined at
trial, but in any event, not less than $6,787,250.40. NPK is entitled to prejudgment interest at the
statutory rate.
15.
NPK is entitled to recover its reasonable attorney fees, expenses, and costs incurred in
this action, pursuant to paragraph 21 of the Distribution Agreement.
SECOND CLAIM FOR RELIEF(Breach of the Implied Covenant of Good Faith and Fair Dealing)
16.
NPK realleges and incorporates all previous paragraphs of its counterclaim as if fully
stated herein.
17.
The Distribution Agreement and its amendments have an implied covenant of good faith
and fair dealing.
18.
The parties had objectively reasonable expectations that Yeti would perform its
obligations under the Distribution Agreement and its amendments in good faith.
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19.
Yeti violated the parties reasonable expectations and breached its duty of good faith and
fair dealing by adding obligations to NPK that the parties never agreed to, or bargained for, in
order for Yeti to supply NPK with plant washes pursuant to the Distribution Agreement and its
amendments.
20.
NPK has substantially performed its obligations under the Distribution Agreement and its
amendments or is otherwise excused from such performance by Yetis actions.
21.
As a result of Yetis breach, NPK has suffered damages in an amount to be determined at
trial, but in any event, not less than $6,787,250.40. NPK is entitled to prejudgment interest at the
statutory rate.
22.
NPK is entitled to recover its reasonable attorney fees, expenses, and costs incurred in
this action, pursuant to paragraph 21 of the Distribution Agreement.
THIRD CLAIM FOR RELIEF(Declaratory Judgment, Count I)
23.
NPK realleges and incorporates all previous paragraphs of its counterclaim as if fully
stated herein.
24.
In accordance with 28 U.S.C. 2201 and 2202, an actual and justiciable controversy
exist between NPK and Yeti with regard to NPKs ownership of the trademarks for Mighty
Wash, PM Wash, Power Wash, the Power Button, and the Frequency Logo (NPKs
Marks).
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25.
NPK invented, paid for, and has continuously used NPKs Marks in commerce.
26.
Consumers identify and associate NPKs Marks with NPK because NPK has invested
substantial sums in promotion and advertising of NPKs marks.
27.
NPK registered the Mighty Wash mark with the U.S. Patent and Trademark Office,
U.S. Trademark Registration Nos. 4,121,193 and 4,241,438 on July 7, 2011 and March 19, 2012
respectively.
28.
As a result, NPK requests this Court declare that NPK is the owner of the trademarks for
Mighty Wash, PM Wash, Power Wash, the Power Button, and the Frequency Logo,
not Yeti.
(Declaratory Judgment, Count II)
29.
NPK realleges and incorporates all previous paragraphs of its counterclaim as if fully
stated herein.
30.
In accordance with 28 U.S.C. 2201 and 2202, an actual and justiciable controversy
exist between NPK and Yeti with regard to NPKs ability to sell plant washes from any source
using NPKs Marks, sell other products using NPKs Marks, and Yetis ability to sell its plant
washes using NPKs marks.
31.
NPK invented and paid for NPKs marks in September 2010.
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32.
NPKs logo, NPK Industries, appeared on the original labels for the following three
plant washes sourced by Yeti: Mighty Wash, PM Wash, and Power Wash (the
Products).
33.
NPK maintained the quality and uniformity of the Products.
34.
Consumers identified the Products with NPK.
35.
Consumers made complaints to NPK about the Products.
36.
NPK possesses the good will associated with the Products.
37.
Yeti has stopped supplying NPK with the Products.
38.
NPK requests this Court declare that NPK can use NPKs Marks to sell plant washes
from any source, sell other products using NPKs Marks, and Yeti cannot use NPKs Marks to
sell Yetis plant washes without NPKs written consent.
(Declaratory Judgment, Count III)
39.
NPK and Tang reallege and incorporate all previous paragraphs of its counterclaim as if
fully stated herein.
40.
In accordance with 28 U.S.C. 2201 and 2202, an actual and justiciable controversy
exist between NPK and Yeti with regard to whether NPK and Tang knowingly made false
declarations, in registering the trademark for Mighty Wash with the U.S. Patent and
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Trademark Office, U.S. Trademark Registration Nos. 4,121,193 and 4,241,438, and induced the
trademark examiner to act or refrain from acting in reliance upon any alleged false declarations.
41.
NPK and Tang, in good faith, stated NPK was the owner of the trademark for Mighty
Wash in registering that trademark with the U.S. Patent and Trademark Office, U.S. Trademark
Registration Nos. 4,121,193 and 4,241,438, on July 7, 2011 and March 19, 2012 respectively.
42.
NPK and Tang, in good faith, stated NPK first used the Mighty Wash trademark in
commerce at least as early as 11/01/2010 in registering that trademark with the U.S. Patent and
Trademark Office, U.S. Trademark Registration Nos. 4,121,193 and 4,241,438, on July 7, 2011
and March 19, 2012 respectively.
43.
NPK invented the Mighty Wash trademark in September 2010.
44.
NPK has continuously used the Mighty Wash trademark in commerce since, at least,
October 2010.
45.
Consumers identify and associate the Mighty Wash trademark with NPK because NPK
has invested substantial sums in promotion and advertising of the Mighty Wash trademark.
46.
NPK requests this Court declare that NPK and Tang did not knowingly make false
declarations, in registering the trademark for Mighty Wash with the U.S. Patent and
Trademark Office, U.S. Trademark Registration Nos. 4,121,193 and 4,241,438, and did not
induce the trademark examiner to act or refrain from acting in reliance upon any alleged false
declarations.
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(Declaratory Judgment, Count IV)
47.
NPK realleges and incorporates all previous paragraphs of its counterclaim as if fully
stated herein.
48.
In accordance with 28 U.S.C. 2201 and 2202 and Or. Rev. Stat. Ann. 28.010 (2013),
an actual and justiciable controversy exist between NPK and Yeti with regard to whether Yeti
breached or repudiated the Distribution Agreement and its amendments prior to any alleged
breach by NPK; whether Yetis repudiation of the Distribution Agreement and its amendments
excused NPKs performance; whether NPK had reasonable grounds for insecurity with respect to
Yetis performance of the Distribution Agreement and its amendments; whether NPKs request
for assurances suspended NPKs obligation to perform under the Distribution Agreement and its
amendments; whether the Distribution Agreement and its amendments either required monthly
minimum purchases by NPK and any alleged breach of one or more installments did not
substantially impair the value of the whole contract, or required yearly minimum purchases by
NPK and NPKs time for performance had not expired; and whether Yeti wrongfully terminated
the entire agreement.
49.
In January 2010, Yeti demanded NPK change an advertisement for two NPK gardening
products Multiply and Stack that said From the Creators of Mighty Wash.
50.
On January 28, 2010, Yeti demanded NPK sell all Mighty Wash, PM Wash, and
Power Wash manufactured by Yeti to NPKs exclusive distributor, Sunlight Supply, Inc.
(Sunlight). Yeti also demanded NPK turnover its customer lists, materials supplier lists, label
maker accounts, supply account for a plant wash ingredient, assign its Mighty Wash trademark
to Yeti, stop using NPKs trademark for the Power Button, sign an agreement with Yeti that
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Yeti is free to make a direct distribution deal with Sunlight, and pay all money owed to Yeti.
Yeti also stopped supplying the Products for a period of time.
51.
In good faith, NPK agreed to change any advertisements that said From the Creators of
Mighty Wash to From the Distributors of Mighty Wash.
52.
In good faith, NPK paid off the full balance of $31,608.30 owed to Yeti.
53.
Despite NPKs good faith efforts to perform its obligations under the Distribution
Agreement and its amendments, Yeti unilaterally and arbitrarily increased prices for plant
washes without sufficient notice to NPK.
54.
Yeti also unilaterally and arbitrarily shortened the due date for payment of invoices.
55.
Yeti then stopped supplying NPK with plant washes unless NPK immediately agreed to
Yetis unilateral and arbitrary changes to the terms of the parties agreements.
56.
As a result, NPK had reasonable grounds for insecurity with respect to Yetis
performance of the Distribution Agreement and its amendments.
57.
On May 15, 2013, NPK sent Yeti a request for assurances of Yetis continued
performance of the Distribution Agreement and its amendments.
58.
NPKs request for assurances suspended any obligation of NPK to perform its obligations
under the Distribution Agreement and its amendments.
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59.
Yeti terminated the Distribution Agreement before the ten year term expired.
60.
The Distribution Agreement and its amendments either required monthly minimum
purchases by NPK and any alleged breach of one or more installments did not substantially
impair the value of the whole contract, or required yearly minimum purchases by NPK and
NPKs time for performance had not expired.
61.
NPK requests that this Court declare that Yeti breached or repudiated the Distribution
Agreement and its amendments prior to any alleged breach by NPK; Yetis repudiation of the
Distribution Agreement and its amendments excused NPKs performance; NPK had reasonable
grounds for insecurity with respect to Yetis performance of the Distribution Agreement and its
amendments; NPKs request for assurances suspended NPKs obligation to perform under the
Distribution Agreement and its amendments; the Distribution Agreement and its amendments
either required monthly minimum purchases by NPK and any alleged breach of one or more
installments did not substantially impair the value of the whole contract, or required yearly
minimum purchases by NPK and NPKs time for performance had not expired; and Yeti
wrongfully terminated the entire agreement.
DEMAND FOR JURY TRIAL
62.
NPK demands a jury trial in this action.
PRAYER FOR RELIEF
WHEREFORE, NPK respectfully prays for relief as follows:
A. On NPKs First Claim for Relief (Breach of Contract), judgment against
Yeti for damages in an amount to be determined at trial, but in any event, not less than
$6,787,250.40;
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B. On NPKs Second Claim for Relief (Breach of the Implied Covenant of Good
Faith and Fair Dealing), judgment against Yeti for damages in an amount to be determined at
trial, but in any event, not less than $6,787,250.40;
C. On NPKs Third Claim For Relief (Declaratory Judgment, Count I), judgment
entered in NPKs favor and against Yeti declaring that NPK is the owner of the trademarks for
Mighty Wash, PM Wash, Power Wash, the Power Button, and the Frequency Logo,
not Yeti;
D. On NPKs Third Claim For Relief (Declaratory Judgment, Count II), judgment
entered in NPKs favor and against Yeti declaring that NPK can use NPKs Marks to sell plant
washes from any source, sell other products using NPKs Marks, and Yeti cannot use NPKs
Marks to sell Yetis plant washes without NPKs written consent;
E. On NPKs Third Claim For Relief (Declaratory Judgment, Count III), judgment
entered in NPKs favor and against Yeti declaring that NPK and Tang did not knowingly make
false declarations, in registering the trademark for Mighty Wash with the U.S. Patent and
Trademark Office, U.S. Trademark Registration Nos. 4,121,193 and 4,241,438, and did not
induce the trademark examiner to act or refrain from acting in reliance upon any alleged false
declarations;
F. On NPKs Third Claim For Relief (Declaratory Judgment, Count IV), judgment
entered in NPKs favor and against Yeti declaring that Yeti breached or repudiated the
Distribution Agreement and its amendments prior to any alleged breach by NPK; Yetis
repudiation of the Distribution Agreement and its amendments excused NPKs performance;
NPK had reasonable grounds for insecurity with respect to Yetis performance of the
Distribution Agreement and its amendments; NPKs request for assurances suspended NPKs
obligation to perform under the Distribution Agreement and its amendments; the Distribution
Agreement and its amendments either required monthly minimum purchases by NPK and any
alleged breach of one or more installments did not substantially impair the value of the whole
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contract, or required yearly minimum purchases by NPK and NPKs time for performance had
not expired; and Yeti wrongfully terminated the entire agreement;
G. NPKs reasonable attorney fees, expenses, and costs incurred in this action;
H. Prejudgment interest as allowed by law;
I. For any other just relief.
DATED this 24th day of July, 2013.
MARKOWITZ, HERBOLD, GLADE& MEHLHAF, P.C.
By: /s/ Rene E. Rothauge
Rene E. Rothauge, OSB #903712Jeffrey M. Edelson, OSB #880407
(503) 295-3085Of Attorneys for Defendant NPK, LLC
KILMER VOORHEES & LAURICK PC
/s/ Robert B. Miller
Robert B. Miller, OSB #960068(503) 224-0055Of Attorneys for Defendant Orion Tang
YETI/344457
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