ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD)...................1 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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The Honorable James P. Donohue 

IN THE UNITED STATES DISTRICT COURT 

FOR THE WESTERN DISTRICT OF WASHINGTON 

AT SEATTLE 

CHIHULY, INC., a Washington corporation 

and PORTLAND PRESS, INC., a 

Washington corporation, 

 Plaintiffs, 

 v. 

ROBERT KAINDL, an individual; BRYAN 

RUBINO, individually and on behalf of his 

marital community; ART GLASS 

PRODUCTION, a Washington company; et 

al., 

 Defendants. 

____________________________________

ROBERT KAINDL, an individual; and ART 

GLASS PRODUCTION, a Washington 

company, 

 Counter-claimants, 

 v. 

CHIHULY, INC., a Washington 

corporation, PORTLAND PRESS, INC., a 

Washington corporation, and DALE 

CHIHULY, an individual 

 Counter-Defendants. 

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No. C05-1801-JPD 

ANSWER, AFFIRMATIVE DEFENSES 

AND COUNTERCLAIMS OF 

DEFENDANTS ROBERT KAINDL AND 

ART GLASS PRODUCTION 

JURY TRIAL DEMANDED 

Defendants Robert Kaindl and Art Glass Production (collectively Defendants) hereby 

answer the Complaint of Plaintiffs (hereinafter collectively “Plaintiffs”). 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD)...................2 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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1. Defendants admit that Plaintiffs have filed an eight-count complaint against 

them. Defendants deny the remaining allegations in paragraph 1 of the Complaint. 

Defendants note that the Court has dismissed Plaintiffs’ trademark dilution claim and portions 

of Plaintiffs’ Consumer Protection Act claim. 

2. Defendants admit, on information and belief, that Defendant Bryan Rubino 

(“Rubino”) was once an employee of Plaintiff Chihuly, Inc. (“CI”) and later was an 

independent contractor for CI. Defendants deny the remaining allegations in paragraph 2 of 

the Complaint. 

3. To the extent that an Answer is required, Defendants deny the allegations in 

paragraph 3 of the Complaint. 

4. Defendants admit that CI is a Washington corporation with its principal place 

of business in King County, Washington, and that CI represents the artwork of artist Dale 

Chihuly. Defendants deny the remaining allegations in paragraph 4 of the Complaint. 

5. Defendants admit that Portland Press, Inc. (“PPI”) is a Washington corporation 

that publishes books and videos about Dale Chihuly. Defendants also admit that PPI 

distributes and sells certain blown glass sculptures as “Studio Editions.” Defendants are 

without knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations in paragraph 5 of the Complaint, and therefore deny the same. 

6. Defendants admit that Robert Kaindl (“Kaindl”) resides in Redmond, King 

County, Washington. Defendants admit that Kaindl owns and operates Web sites at 

<www.artglassproduction.com> and <www.artglassproductions.com>, and sites that 

hyperlink to the <www.artglassproductions.com> site, such as http://www.artcrystal.org. 

Defendants admit that Kaindl also owns/operates other Web sites, but denies the number 

alleged by Plaintiffs in the Complaint. 

7. Defendants admit that Defendant Art Glass Production is a sole proprietorship 

owned by Robert Kaindl, that its UBI number is 600569166, and that the Washington 

Department of Revenue previously listed Art Glass Production’s business address as 14208 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD)...................3 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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21st Street SE, Mill Creek, Washington 98012. Defendants admit that this address is Kaindl’s 

mother’s address. The current contact address for Art Glass Production is P.O. Box 98, 

Kirkland, Washington 98083, which is listed on Kaindl’s Web site 

<www.artglassproduction.com>. 

8. Defendants admit, on information and belief, that Rubino is a married 

individual residing in Thurston County, Washington. Defendants further admit, on 

information and belief, that Rubino was either an employee or an independent contractor of 

CI until 1999 and any relationship between Rubino and Plaintiffs from 1999 to 2004 was that 

of an independent contractor. Defendants further admit, on information and belief, that 

Rubino produces original blown glass sculptures for Rubino Glass, Inc., which maintains a 

studio at 52 West Fredson Road, Shelton, Washington, 98584. Defendants deny the 

remaining allegations in paragraph 8 of the Complaint. 

9. Defendants admit on information and belief that Defendant Lakeshore Gallery 

(“Lakeshore”) has a principal place of business at 107 Park Lane, Kirkland, Washington 

98033 and that Lakeshore sold through consignment Kaindl’s glass artwork. Defendants do 

not have the information sufficient to either admit or deny the remaining allegations in 

paragraph 9 of the Complaint, and therefore deny the same. 

10. Defendants admit on information and belief that Defendant Kenneth Behm 

Galleries Ltd. (“Behm Gallery”) had galleries in Bellevue Square and Southcenter Mall and 

that Behm Gallery sold through consignment Kaindl’s glass artwork. Defendants deny that 

any “unauthorized copies” were sold under the name Kaindl. Defendants do not have the 

information sufficient to either admit or deny the remaining allegations in paragraph 10 of the 

Complaint, and therefore deny the same. 

11. Defendants admit on information and belief that Defendant Trammell-Gagne, 

LLC (“Trammell-Gagne”) has a principal place of business at 5701 Sixth Avenue South, 

Suite 105, Seattle, Washington 98108 and sold through consignment Kaindl’s glass artwork. 

Defendants deny that any “unauthorized copies” were sold under the name Kaindl. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD)...................4 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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Defendants do not have the information sufficient to either admit or deny the remaining 

allegations in paragraph 11 of the Complaint, and therefore deny the same. 

12. Defendants admit on information and belief that Defendant UNIK! LLC 

(“UNIK!”) operated a gallery at Pacific Place Mall, 600 Pine Street, Seattle, Washington 

98101 until it lost its lease at the end of December 2005. Defendants also admit that UNIK! 

consigned Kaindl’s glass artwork. Defendants deny that any “unauthorized copies” were sold 

under the name Kaindl. Defendants either deny or do not have the information sufficient to 

either admit or deny the remaining allegations in paragraph 12 of the Complaint. 

13. Defendants admit that this Court has jurisdiction over the asserted claims to the 

extent that Plaintiffs had issued copyright registrations on the date the Complaint was filed. 

14. Defendants admit that venue is proper in this Court to the extent the Court has 

subject matter jurisdiction. 

15. Defendants admit, on information and belief, that Dale Chihuly attended the 

University of Wisconsin at Madison. Defendants admit that the Studio Glass movement is a 

method of blowing glass. Defendants admit that the Studio Glass movement was not founded 

by Dale Chihuly, and that Dale Chihuly was not the first person to employ intimate small 

studies with closely-knit glassblowing teams. Defendants are without knowledge or 

information sufficient to form a belief as to the truth of the remaining allegations in paragraph 

15 of the Complaint and therefore deny them. 

16. Defendants admit, on information and belief, that Dale Chihuly has an M.F.A. 

degree from the Rhode Island School of Design and apprenticed in Murano, Italy, where Dale 

Chihuly observed others employing the concept of team glassmaking from master glass 

blowers creating unconventional and innovative shapes and designs with a material that can 

be flexible in conception. Defendants are without knowledge or information sufficient to 

form a belief as to the truth of the remaining allegations in paragraph 16 of the Complaint and 

therefore deny them. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD)...................5 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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17. Defendants admit, on information and belief, that Dale Chihuly returned to the 

United States and co-founded the Pilchuck Glass School. Defendants are without knowledge 

or information sufficient to form a belief as to the truth of the remaining allegations in 

paragraph 17 of the Complaint and therefore deny them. 

18. Defendants deny that Dale Chihuly was “a pioneer in the shift from 

symmetrical shapes to more off-centered and asymmetrical forms.” Defendants admit that 

glass blowing has been an art form for millennia. Defendants admit that symmetrical and 

asymmetrical methods of glass blowing are employed. Defendants are without knowledge or 

information sufficient to form a belief as to the truth of the remaining allegations in paragraph 

18 of the Complaint and therefore deny them. 

19. Defendants admit, on information and belief, that Dale Chihuly has sustained 

injuries and that because of them, he has not blown glass for many years. Defendants admit, 

on information and belief, that Dale Chihuly sometimes makes abstract paintings to 

communicate to his glassblowing team his broad idea or ideas for a particular project or work. 

Defendants either deny or are without knowledge or information sufficient to form a belief as 

to the truth of the remaining allegations in paragraph 19 of the Complaint and therefore deny 

them. 

20. Defendants admit that a team of glass blowers sometimes endeavors to create 

one of Dale Chihuly’s abstract paintings into a blown glass project using the previously 

known Studio Glass method of glass making. Defendants either deny or are without 

knowledge or information sufficient to form a belief as to the truth of the remaining 

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 admit that CI’s conventional glass-blowing teams revisit earlier 

shapes when creating blown forms. Defendants deny the remaining allegations in paragraph 

22 of the Complaint. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD)...................6 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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23. Defendants admit, on information and belief, that CI was founded through 

investment by Dale Chihuly and that CI hired a team of employees to create glass artwork. 

Defendants either deny or 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. 

24. Defendants admit that Dale Chihuly and CI did not originate the Studio Glass 

movement. Defendants either deny or are without knowledge or information sufficient to 

form a belief as to the truth of the remaining allegations in paragraph 24 of the Complaint and 

therefore deny them. 

25. Defendants admit that no two blown glass sculptures are identical and that 

glass sculptures are “one of a kind.” Defendants deny the remaining allegations in paragraph 

25 of the Complaint. 

26. Defendants are without information sufficient to admit or deny the allegations 

in paragraph 26 of the Complaint, and therefore deny them. 

27. Defendants admit that each individual sculpture is unique. Defendants either 

deny or are without knowledge or information sufficient to form a belief as to the truth of the 

remaining allegations in paragraph 27 of the Complaint, and therefore deny them. 

28. Defendants admit that Dale Chihuly is listed as the owner of U.S. Trademark 

Registration No. 2,418,821 for the CHIHULY Design mark, registered on January 9, 2001 in 

connection with “sculptures made primarily of glass” in International Class 21. Defendants 

admit that Chihuly owns three other trademark registrations for goods other than blown glass 

sculptures. Defendants deny the remaining allegations in paragraph 28 of the Complaint. 

29. Defendants admit that PPI produces books and videos about Dale Chihuly and 

glass blowing. Defendants are without knowledge or information sufficient to form a belief 

as to the truth of the remaining allegations in paragraph 29 of the Complaint and therefore 

deny them. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD)...................7 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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30. Defendants admit that PPI sells certain edition blown glass sculptures that are 

called “Studio Editions,” which are reproduced. Because they are hand-blown, Defendants 

admit that each piece will vary in color, size, and shape. Defendants admit that these so 

called “Studio Editions” are sold on PPI’s Web site at <www.portlandpress.net>. Defendants 

are without knowledge or information sufficient to form a belief as to the truth of the 

remaining allegations in paragraph 30 of the Complaint and therefore deny them. 

31. Defendants either deny or are without knowledge or information sufficient to 

form a belief as to the truth of the allegations in paragraph 31 of the Complaint and therefore 

deny them. 

32. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 32 of the Complaint and therefore deny them. 

33. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 33 of the Complaint and therefore deny them. 

34. Defendants admit that PPI is listed as the owner on a certificate of copyright 

registration for a work entitled “Red Blanket Cylinder” [VA 1-216-414]. Defendants are 

without knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations in paragraph 34 of the Complaint and therefore deny them. 

35. Defendants admit that blown glass is a process that naturally responds to 

gravity which results in sculptures that will appear collapsed or slumped. Defendants admit 

that woven forms will sag under their own weight, frailty and age. Defendants either deny or 

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 are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 36 of the Complaint and therefore deny them. 

37. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 37 of the Complaint and therefore deny them. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD)...................8 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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38. Defendants admit that PPI is listed as the owner on certificates of copyright 

registrations for works entitled “Cobalt Blue Basket with Cadmium Red Lip Wrap” [VA 1- 

100-915]; “Coral Basket with Golden Wrap” [VA 1-216-411]; “Mango Basket with Teal Lip 

Wrap” [VA 1-069-922]; “Paris Blue Basket Set” [VA 1-216-408]; “Citron Basket” [VA 1-

216-425]; “Bonfire Baskets” [VA 1-216-423]; and “Blue Sky Basket Set” [VA 1-251-199]. 

Defendants are without knowledge or information sufficient to form a belief as to the truth of 

the remaining allegations in paragraph 38 of the Complaint and therefore deny them. 

39. Defendants admit that CI is listed as the owner on a certificate of copyright 

registration for the “Pearlized Purple Basket with Yellow Lip Wrap” [VAu635-050]. 

40. Defendants are without knowledge or information sufficient to form a belief as 

to whether the certificates attached are true and correct copies and therefore deny paragraph 

40 of the Complaint. 

41. Defendants admit, on information and belief that CI has taken inspiration from 

organisms that live in the seas for the CI team’s Seaform series, and that these sculptures 

employ the shapes and colors of marine creatures and objects. Defendants deny the remaining 

allegations in paragraph 41 of the Complaint. 

42. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 42 of the Complaint and therefore deny them. 

43. Defendants admit that PPI is listed as the owner on certificates of copyright 

registrations for “Chinese Red Seaform Pair with Ebony Lip Wraps” [VA 1-061-543]; “Teal 

Blue Seaform with Amber Body Wrap” [VA 1-216-410]; “Larkspur Seaform Pair with Gold 

Lip Wraps” [VA 1-216-413]; and “Tiger Lily Seaform Pair” [VA 1-216-418]. Defendants are 

without knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations in paragraph 43 of the Complaint and therefore deny them. 

44. Defendants admit that CI is listed as the owner on a certificate of copyright 

registration for “Dark Cherry Seaform Set with Brilliant Yellow Lip Wraps” [VAu635-051]. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD)...................9 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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45. Defendants are without knowledge or information sufficient to form a belief as 

to whether the certificates attached are true and correct copies and therefore deny paragraph 

45 of the Complaint. 

46. Defendants admit that CI has created works that are called Macchias, which 

are generally identified by their multi-colored spots. Defendants admit that Macchias means 

“spotted,” “stained” or “marked” in Italian. Defendants are without knowledge or 

information sufficient to form a belief as to the truth of the remaining allegations in paragraph 

46 of the Complaint and therefore deny them. 

47. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 47 of the Complaint and therefore deny them. 

48. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 48 of the Complaint and therefore deny them. 

49. Defendants admit that PPI is listed as the owner on certificates of copyright 

registrations for “Cinnamon Macchia” [VA 1-216-416]; “Ruby Macchia” [VA 1-216-409]; 

“Ocean Macchia” [VA 1-216-417]; “Moroccan Macchia Pair” [VA 1-216-422]; “Carnival 

Macchia” [VA 1-251-200]; “Starlight Seaform Macchia” [VA 1-251-201]; “Seagreen 

Macchia Pair” [VA 1-315-479]; and “Sunset Macchia” [VA 1-315-474]. Defendants are 

without knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations in paragraph 49 of the Complaint and therefore deny them. 

50. Defendants admit that CI is listed as the owner on certificates of copyright 

registrations for “Cadmium Yellow and Crimson Macchia” [VAu635-055]; “Lime Balm 

Green Macchia with Orange Lip Wrap” [VAu635-054]; “Bright Green Macchia with Yellow 

Lip Wrap” [VAu635-056]; “Dandelion Macchia with Deep Green Lip Wrap” [VAu 635-057]; 

“Old Rose Macchia with Lemon Lip Wrap” [VAu635-053]; “Royal Yellow Pheasant Macchia 

Set with Lapis Lip Wraps” [VAu635-052]; “Mardi Gras Pheasant Macchia Set with Blue and 

Red Lip Wraps” [VAu635-049]; and “Old Rose Pheasant Macchia Pair with Turquoise and 

Green Lip Wraps” [VAu635-048]. Defendants are without knowledge or information 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................10 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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sufficient to form a belief as to the truth of the remaining allegations in paragraph 50 of the 

Complaint and therefore deny them. 

51. Defendants are without knowledge or information sufficient to form a belief as 

to whether the certificates attached are true and correct copies and therefore deny paragraph 

51 of the Complaint. 

52. Defendants admit that the CI has a series called Persians featuring spiraling 

body wraps and herringbone effects in a single color. Defendants admit that some Middle 

Eastern vessels employed jewel-like colors and sensual curving. Defendants deny the 

remaining allegations in paragraph 52 of the Complaint. 

53. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 53 of the Complaint and therefore deny them. 

54. Defendants admit that PPI is listed as the owner on certificates of copyright 

registrations for works entitled “Buttercup Yellow Persian with Red Lip Wrap” [VA 1-061-

542]; “Imperial Iris Persian with Chartreuse Lip Wraps” [VA 1-216-412]; “Parrot Green 

Persian Set” [VA 1-216-420]; “Radiant Persian Pair” [VA 1-216-421]; “Paradise Persian” 

[VA 1-216-426]; “Tango Red Persian” [VA 1-251-198]; and “Amethyst Persian” [VA 1-315-

481]. Defendants are without knowledge or information sufficient to form a belief as to the 

truth of the remaining allegations in paragraph 54 of the Complaint and therefore deny them. 

55. Defendants admit that CI is listed as owner on certificates of copyright 

registrations for works entitled “Aubusson Red Persian Set with Flint Lip Wrap” [VAu635-

059]; “Plum Persian Set with Saffron Yellow Lip Wraps” [VAu635-062]; and “Meltwater 

Persian with Hunting Coat Red Lip Wrap” [VAu635-058]. Defendants are without 

knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations in paragraph 55 of the Complaint and therefore deny them. 

56. Defendants are without knowledge or information sufficient to form a belief as 

to whether the certificates attached are true and correct copies and therefore deny paragraph 

56 of the Complaint. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................11 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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57. Defendants admit that CI’s has glass works for wall installations that CI refers 

generally to “Persian Wall Installations.” Defendants admit that a glass peg in some of the 

glass works has a function in that it facilitates installation of the glass works. Defendants 

deny the remaining allegations in paragraph 57 of the Complaint. 

58. Defendants admit that CI is listed as owner on certificates of copyright 

registrations for works entitled “BlueJay Persian Wall Installation” [VAu635-060], and 

“Autumn Persian Wall Installation” [VAu635-061]. Defendants are without knowledge or 

information sufficient to form a belief as to the truth of the remaining allegations in paragraph 

58 of the Complaint and therefore deny them. 

59. Defendants are without knowledge or information sufficient to form a belief as 

to whether the certificates attached are true and correct copies and therefore deny paragraph 

59 of the Complaint. 

60. Defendants admit that CI has works that CI identifies as its Venetian Series, 

and on information and belief, that these works are derivatives of Italian Art Deco glass. 

Defendants are without knowledge or information sufficient to form a belief as to the truth of 

the remaining allegations in paragraph 60 of the Complaint and therefore deny them. 

61. Defendants admit that CI has works that CI identifies as its Ikebana series 

having blown glass flowers and stems in glass bases and that these works are derivatives of 

Japanese Ikebana flower arrangements. Defendants are without knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations in paragraph 61 of the 

Complaint and therefore deny them. 

62. Defendants admit that CI has works that CI identifies as its Nijiima Float 

Series that are large spherical pieces that are derivatives of Japanese glass floats used in 

fishing. Defendants are without knowledge or information sufficient to form a belief as to the 

truth of the remaining allegations in paragraph 62 of the Complaint and therefore deny them. 

63. Defendants admit that CI has works that CI identifies as its Chandelier Series 

featuring numerous blown pieces arranged on a hanging armature. Defendants admit that 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................12 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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CI’s glass chandeliers are installed at the Seattle Art Museum and Benaroya Hall. Defendants 

are without knowledge or information sufficient to form a belief as to the truth of the 

remaining allegations in paragraph 63 of the Complaint and therefore deny them. 

64. Defendants admit that CI has architectural installations, such as the five 

installations at Tacoma’s Union Station Federal Courthouse. Defendants are without 

knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations in paragraph 64 of the Complaint and therefore deny them. 

65. Defendants admit, on information and belief, that representatives of CI 

traveled to Nuutajarvi, Finland, the Waterford Crystal factory in Ireland, and to Monterey, 

Mexico. Defendants also admit that chandeliers were installed in various sites in Venice, 

Italy. Defendants also admit that the armature has a function in that it facilitates suspending 

the sculptures. Defendants are without knowledge or information sufficient to form a belief 

as to the truth of the remaining allegations in paragraph 65 of the Complaint and therefore 

deny them. 

66. Defendants admit that CI installed an architectural installation in the Bellagio 

Hotel in Las Vegas, Nevada. Defendants further admit that 

http://www.chihuly.com/installations/bellagio/ displays the Bellagio installation. Defendants 

are without knowledge or information sufficient to form a belief as to the truth of the 

remaining allegations in paragraph 66 of the Complaint and therefore deny them. 

67. Defendants admit that CI installed an architectural installation in the Atlantis 

Hotel. Defendants are without knowledge or information sufficient to form a belief as to the 

truth of the remaining allegations in paragraph 67 of the Complaint and therefore deny them. 

68. Defendants admit that CI installed a very large installation that was exhibited 

at the Tower of David Museum in Jerusalem. Defendants are without knowledge or 

information sufficient to form a belief as to the truth of the remaining allegations in paragraph 

68 of the Complaint and therefore deny them. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................13 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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69. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 69 of the Complaint and therefore deny them. 

70. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 70 of the Complaint and therefore deny them. 

71. Defendants deny the allegations in paragraph 71 of the Complaint. 

72. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 72 of the Complaint and therefore deny them. 

73. Defendants admit that CI is listed as the owner on certificates of copyright 

registrations for a work entitled “Mille Fiori” [VA 1-273-559]. Defendants are without 

knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations in paragraph 73 of the Complaint and therefore deny them. 

74. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 74 of the Complaint and therefore deny them. 

75. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 75 of the Complaint and therefore deny them. 

76. Defendants admit, on information and belief, that Rubino was employed by CI 

beginning in 1988. Defendants deny the remaining allegations in paragraph 76 of the 

Complaint. 

77. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 77 of the Complaint and therefore deny them. 

78. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 78 of the Complaint and therefore deny them. 

79. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 79 of the Complaint and therefore deny them. 

80. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 80 of the Complaint and therefore deny them. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................14 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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81. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 81 of the Complaint and therefore deny them. 

82. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 82 of the Complaint and therefore deny them. 

83. Defendants are without knowledge or information sufficient to form a belief as 

to the truth of the allegations in paragraph 83 of the Complaint and therefore deny them. 

84. Defendants deny the allegations in paragraph 84 of the Complaint. 

85. Defendants deny the allegations in paragraph 85 of the Complaint. 

86. Defendants deny the allegations in paragraph 86 of the Complaint. 

87. Defendants deny the allegations in paragraph 87 of the Complaint. 

88. Defendants admit that Defendant Kaindl has websites promoting Defendants’ 

blown glass sculptures and other businesses. Defendants deny the remaining allegations in 

paragraph 88 of the Complaint. 

89. Defendants admit that Defendant Kaindl has posted an article regarding a drive 

he made at the Coyoto Lake Golf Course in Arizona. Defendants deny Plaintiffs’ implication 

in paragraph 89 that this article is inaccurate. Defendants deny or lack sufficient information 

to admit or deny the remaining allegations in paragraph 89 of the Complaint, and therefore 

deny them. Defendants further object to the allegations set forth in paragraph 89 of the 

Complaint as scandalous and entirely irrelevant to any claims raised in the Complaint. 

90. Defendants admit that Defendant Kaindl has claimed on websites to have been 

“extremely fortunate to train and work with some of the world’s most well-known glass 

artists.” Defendants deny Plaintiffs’ implication in paragraph 90 that this claim is untrue. 

Defendants deny the remaining allegations in paragraph 90 of the Complaint. 

91. Defendants deny that Defendant Kaindl has little if any competence as a glass 

blower. Defendants deny that Defendant Kaindl has had no formal training as a glassblower 

and no actual experience as a glassblower. Defendants either deny or are without knowledge 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................15 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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or information sufficient to form a belief as to the truth of the remaining allegations in 

paragraph 91 of the Complaint and therefore deny them. 

92. Defendants deny the allegations in paragraph 92 of the Complaint. 

93. Defendants deny the allegations in paragraph 93 of the Complaint. 

94. Defendants deny the allegations in paragraph 94 of the Complaint. 

95. Defendants admit on information and belief that Plaintiffs hired investigators 

to visit the Kenneth Behm Gallery in Bellevue and, on information and belief, that the 

investigators spoke to Mr. Kaindl. Defendants deny the remaining allegations in paragraph 95 

of the Complaint. 

96. Defendants admit the allegations of paragraph 96 of the Complaint. 

97. Defendants deny the allegations in paragraph 97 of the Complaint. 

98. Defendants admit that Defendant Kaindl owns, operates and maintains a 

website displayed at the URL http://www.artglassproductions.com. Defendant Kaindl denies 

the remaining allegations in paragraph 98 of the Complaint.

99. Defendants deny the allegations in paragraph 99 of the Complaint. 

100. Defendants admit that some of their websites offer contemporary art glass 

under generic names including baskets, cylinders, floats, ikebanas, sea forms, sea shapes and 

venetians. Defendants specifically deny that any of these generic terms are used as or 

constitute valid trade names (or trademarks) owned by the Plaintiffs. Defendants deny the 

remaining allegations in paragraph 100 of the Complaint. 

101. Defendants admit that some of their websites contain the passage recited in 

paragraph 101 of the Complaint. Defendants further object to the allegations set forth in 

paragraph 101 of the Complaint as entirely irrelevant to any claims raised in the Complaint. 

102. Defendants admit that some of their websites have text similar to that listed in 

the Complaint in paragraph 102. Defendants deny the remaining allegations of paragraph 102 

of the Complaint. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................16 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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103. Defendants admit that they do not represent hundreds of galleries throughout 

the world. Defendants deny the remaining allegations of paragraph 103 of the Complaint. 

104. Defendants admits that some of their websites include the recited text. 

Defendants deny that any of their websites have a page entitled “Chihuly Glass.” Defendants 

deny any remaining allegations of paragraph 104 of the Complaint. 

105. Defendants deny the allegations in paragraph 105 of the Complaint. 

106. Defendants lack sufficient information to admit or deny the allegations in 

paragraph 106 of the Complaint, and therefore deny them. 

107. Defendants deny the allegations in paragraph 107 of the Complaint. 

108. Defendants admits that the word Chihuly was used as a metatag on the 

<www.artglassproduction.com> site, but was promptly removed upon notification of the 

Complaint. Defendants deny the remaining allegations in paragraph 108 of the Complaint. 

109. Defendants admit that a cease and desist letter was included in Plaintiffs’ 

supplemental initial disclosures served on Defendants’ prior counsel on January 3, 2006, 

which is over two months after the Complaint was filed. Defendants deny ever receiving the 

cease and desist letter before January 3, 2006. 

110. Defendants deny the allegations in paragraph 110 of the Complaint. 

111. Defendants admit that Behm Gallery sold Kaindl’s glass artwork, but 

Defendants either deny or are without knowledge or information sufficient to form a belief as 

to the truth of the remaining allegations in paragraph 111 of the Complaint and therefore deny 

them. 

112. Defendants admit that Lakeshore sold Kaindl’s glass artwork, but Defendants 

either deny or are without knowledge or information sufficient to form a belief as to the truth 

of the remaining allegations in paragraph 112 of the Complaint and therefore deny them. 

113. Defendants admit that Trammell-Gagne sold Kaindl’s glass artwork, and on 

information and belief that Haley Vermillion was an employee of Trammell-Gagne. 

Defendants either deny or are without knowledge or information sufficient to form a belief as 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................17 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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to the truth of the remaining allegations in paragraph 113 of the Complaint and therefore deny 

them. 

114. Defendants admit that UNIK! sold Kaindl’s glass artwork, but Defendants 

either deny or are without knowledge or information sufficient to form a belief as to the truth 

of the remaining allegations in paragraph 114 of the Complaint and therefore deny them. 

115. In response to paragraph 115 of the Complaint, Defendants incorporate their 

answers to paragraphs 1 through 114. 

116. Defendants deny the allegations in paragraph 116 of the Complaint. 

117. Defendants deny the allegations in paragraph 117 of the Complaint. 

118. Defendants deny the allegations in paragraph 118 of the Complaint. 

119. Defendants admit that Defendant Kaindl owns a website at 

www.artglassproductions.com and some other websites. Defendants deny the remaining 

allegations in paragraph 119 of the Complaint. 

120. Defendants deny the allegations in paragraph 120 of the Complaint. 

121. Defendants deny the allegations in paragraph 121 of the Complaint. 

122. Defendants deny the allegations in paragraph 122 of the Complaint. 

123. Defendants deny the allegations in paragraph 123 of the Complaint. 

124. Defendants deny the allegations in paragraph 124 of the Complaint. 

125. Defendants deny the allegations in paragraph 125 of the Complaint. 

126. In response to paragraph 126 of the Complaint, Defendants incorporate their 

answers to paragraphs 1 through 114. 

127. Defendants deny the allegations in paragraph 127 of the Complaint. 

128. Defendants deny the allegations in paragraph 128 of the Complaint. 

129. Defendants deny the allegations in paragraph 129 of the Complaint. 

Defendants further note that the Court has dismissed Plaintiffs’ dilution claims. 

130. Defendants deny the allegations in paragraph 130 of the Complaint. 

131. Defendants deny the allegations in paragraph 131 of the Complaint. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................18 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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132. Defendants deny the allegations in paragraph 132 of the Complaint. 

133. Defendants deny the allegations in paragraph 133 of the Complaint. 

134. In response to paragraph 134 of the Complaint, Defendants incorporate their 

answers to paragraphs 1 through 114. 

135. Defendants deny the allegations in paragraph 135 of the Complaint. 

136. Defendants deny the allegations in paragraph 136 of the Complaint. 

137. Defendants deny the allegations in paragraph 137 of the Complaint. 

138. Defendants deny the allegations in paragraph 138 of the Complaint. 

139. In response to paragraph 139 of the Complaint, Defendants incorporate their 

answers to paragraphs 1 through 114. 

140. Defendants deny the allegations in paragraph 140 of the Complaint. 

141. Defendants deny the allegations in paragraph 141 of the Complaint. 

142. Defendants deny the allegations in paragraph 142 of the Complaint. 

143. In response to paragraph 143 of the Complaint, Defendants incorporate their 

answers to paragraphs 1 through 114. 

144. Defendants either deny or lack sufficient information to admit or deny the 

allegations in paragraph 144 of the Complaint, and therefore deny them. 

145. Defendants either deny or lack sufficient information to admit or deny the 

allegations in paragraph 145 of the Complaint, and therefore deny them. 

146. Defendants deny the allegations in paragraph 146 of the Complaint. 

147. In response to paragraph 147 of the Complaint, Defendants incorporate their 

answers to paragraphs 1 through 114. 

148. Defendants either deny or lack sufficient information to admit or deny the 

allegations in paragraph 148 of the Complaint, and therefore deny them. 

149. Defendants deny the allegations in paragraph 149 of the Complaint. 

150. Defendants deny the allegations in paragraph 150 of the Complaint. 

151. Defendants deny the allegations in paragraph 151 of the Complaint. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................19 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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152. Defendants deny the allegations in paragraph 152 of the Complaint. 

153. In response to paragraph 153 of the Complaint, Defendants incorporate their 

answers to paragraphs 1 through 114. 

154. Defendants deny the allegations in paragraph 154 of the Complaint. 

155. Defendants deny the allegations in paragraph 155 of the Complaint. 

156. Paragraph 156 of the Complaint does not appear to contain any factual 

allegations, but instead contains Plaintiffs’ prayer for relief. Defendants deny that Plaintiffs 

are entitled to any relief and deny any factual allegations in paragraph 156 of the Complaint. 

157. Paragraph 157 of the Complaint does not appear to contain any factual 

allegations, but instead contains Plaintiffs’ prayer for relief. Defendants deny that Plaintiffs 

are entitled to any relief and deny any factual allegations in paragraph 157 of the Complaint. 

158. Paragraph 158 of the Complaint does not appear to contain any factual 

allegations, but instead contains Plaintiffs’ prayer for relief. Defendants deny that Plaintiffs 

are entitled to any relief and deny any factual allegations in paragraph 158 of the Complaint. 

159. In response to paragraph 159 of the Complaint, Defendants incorporate their 

answers to paragraphs 1 through 114. 

160. Paragraph 160 of the Complaint does not appear to contain any factual 

allegations, but instead contains Plaintiffs’ prayer for relief. Defendants deny that Plaintiffs 

are entitled to any relief and deny any factual allegations in paragraph 160 of the Complaint. 

161. Defendants admit that there is an actual and existing controversy between the 

parties. Defendants deny any remaining factual allegations in Paragraph 161 of the 

Complaint. 

162. Defendants deny the allegations in paragraph 162 of the Complaint. 

163. Defendants deny the allegations in paragraph 163 of the Complaint. 

164. Paragraph 164 of the Complaint does not appear to contain any factual 

allegations, but instead contains Plaintiffs’ prayer for relief. Defendants deny that Plaintiffs 

are entitled to any relief and deny any factual allegations in paragraph 164 of the Complaint. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................20 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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165. Defendants admit that Defendants and non-parties are suffering immediate and 

on-going harm resulting from the disputes between the parties. Defendants deny that 

Plaintiffs have suffered, are suffering, or will suffer any harm as a result of any of 

Defendants’ past or ongoing activities. Defendants deny that Plaintiffs are entitled to any 

relief and deny any remaining factual allegations in paragraph 165 of the Complaint. 

166. Answering Plaintiffs’ prayer for relief, Defendants deny that Plaintiffs are 

entitled to any relief and deny the factual allegations contained within Plaintiffs’ prayer for 

relief. The remaining statements contained in Plaintiffs’ prayer for relief are denied because 

they are legal contentions, to which no pleading response is required. 

AFFIRMATIVE DEFENSES

In further reply to Plaintiffs’ claims, and as affirmative defenses thereto, Defendants 

allege as follows: 

1. Plaintiffs’ claims are barred in whole or in part by: 

 a. The statute of limitations; or 

 b. Doctrines and principles of waiver, estoppel, unclean hands, inequitable 

conduct and laches. 

2. The Complaint fails to state a claim upon which relief may be based. 

3. Defendants do not infringe any of Plaintiffs’ registered works. 

4. With regard to works created solely or jointly by Defendants and which 

Plaintiffs may accuse of infringement, Defendants independently created the accused works. 

5. With regard to works created solely or jointly by Defendant Rubino and which 

Plaintiffs may accuse of infringement, Defendant Rubino independently created the accused 

works. 

6. Plaintiffs’ registered works and/or the portions thereof they allege to have been 

copied by Defendants are not protectable because they lack sufficient originality. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................21 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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7. Plaintiffs’ registered works and/or the portions thereof they allege to have been 

copied by Defendants are not protectable because they consist in whole or in substantial part 

of elements that are not original to Plaintiffs. 

8. Plaintiffs’ registered works and/or the portions thereof they allege to have been 

copied by Defendants are not protectable because they consist of or embody, in whole or 

substantial part, ideas, processes, systems, methods of operation, concepts, principles, 

discoveries, functional elements and other elements barred from copyright protection under 

17 U.S.C. § 102(b). 

9. Plaintiffs’ registered works and/or the portions thereof they allege to have been 

copied by Defendants are not protectable because they consist in whole or in substantial part 

of public domain elements. 

10. This Court lacks subject matter jurisdiction to consider any claims by Plaintiffs 

based on rights arising from Plaintiffs’ unregistered works. 

11. To the extent any protectable elements of Plaintiffs’ registered works and/or 

the portions thereof they allege to have been copied by Defendants are original to Plaintiffs, 

Plaintiffs abandoned any rights thereto by dedicating the elements to the public. 

12. To the extent any of the accused works incorporate any original protectable 

elements that may exist in Plaintiffs’ registered works and/or the portions thereof they allege 

to have been copied by Defendants, such incorporation is fair use. 

13. To the extent Plaintiffs allege any of Defendants’ works infringe, the accused 

works lack a substantial similarity in appearance attributable to any protectable elements in 

Plaintiffs’ registered works and/or the portions thereof they allege to have been copied by 

Defendants. 

14. To the extent Plaintiffs allege any of Defendants’ works infringe, the accused 

works are not virtually identical to Plaintiffs’ registered works and/or the portions thereof they 

allege to have been copied by Defendants. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................22 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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15. To the extent registrations were obtained for works more than five years after 

publication, Plaintiffs’ copyright registrations do not constitute prima facie evidence of the 

validity and ownership of the copyright. 

16. To the extent Plaintiffs allege any of Defendants’ works infringe, there is no 

infringement because Defendant Rubino authored or co-authored many of the works 

identified in the Complaint, and Defendants are non-exclusive licensees of Rubino. 

17. Plaintiffs’ registrations may be technically defective and therefore void and 

unenforceable. 

18. One or more of the copyrights alleged to exist in the Complaint are invalid for 

failing to disclose previous derivative works in the application and because such failure to 

disclose was intentional. 

19. One or more of the copyrights alleged to exist in the Complaint are invalid 

because Plaintiffs misrepresented to the U.S. Copyright Office that one of the Plaintiffs was 

the owner of original works of authorship and obtained copyright registrations based upon 

these misrepresentations, among others. 

20. Plaintiffs have knowingly misused their copyrights by attempting to secure 

exclusive rights or limited monopolies for genres and techniques through Copyright Laws 

where such rights are not granted by the Copyright laws. 

21. Plaintiffs’ claims are brought in bad faith with knowledge that Defendants do 

not infringe any valid rights of Plaintiffs’ in their works, marks and trade dress. 

22. Plaintiffs’ claims are brought in bad faith with knowledge that Plaintiffs 

abandoned any rights in their alleged works and/or the protectable portions thereof they allege 

to have been copied by Defendants. 

23 . Plaintiffs’ claims are brought in bad faith with knowledge that Defendants did 

not engage in a pattern of racketeering activity. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................23 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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24. Plaintiffs are barred from seeking damages and attorneys’ fees because the 

alleged infringement, if any, commenced more than three months before Plaintiffs obtained a 

copyright registration. 

25. Plaintiffs are barred from seeking damages and attorneys’ fees because the 

alleged infringement, if any, commenced before Plaintiffs obtained a copyright registration. 

26. Punitive damages are not available to Plaintiffs under the facts of the matter or 

applicable law. 

27. Any infringement by Defendants was innocent and not willful. 

28. Without admitting that Plaintiffs have sustained any injury or damages and 

without admitting any liability whatsoever, Defendants allege that the actions asserted against 

them in the Complaint were each privileged and justified and cannot form the basis for any 

claim or cause of action against Defendants. 

29. Without admitting that Plaintiffs have sustained any injury or damages and 

without admitting any liability whatsoever, Defendants allege that the damages sought by 

Plaintiffs in their Complaint and each separate claim for relief asserted therein against the 

Defendants is entirely speculative. Therefore, Plaintiffs are not entitled to recover anything 

on their Complaint or any of its separate claims for relief. 

30. Defendants have not used the CHIHULY mark on or in connection with their 

works. 

31. Defendants have consistently used the KAINDL mark on and in connection 

with their works. 

32. There is no likelihood of confusion. 

33. Plaintiffs do not own the CHIHULY mark. 

34. The CHIHULY mark is not famous. 

35. There has been no actual dilution. 

36. Plaintiffs do not use the term CHANDELIERS as a “trade name” or mark. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................24 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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37. CHANDELIERS is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

38. CHANDELIERS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

39. Defendants do not use the term CHANDELIERS as a “trade name” or mark. 

40. Defendants’ use of CHANDELIERS is a fair use. 

41. Plaintiffs do not use the term CYLINDERS as a “trade name” or mark. 

42. CYLINDERS is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

43. CYLINDERS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

44. Defendants do not use the term CYLINDERS as a “trade name” or mark. 

45. Defendants’ use of CYLINDERS is a fair use. 

46. Plaintiffs do not use the term SEAFORMS as a “trade name” or mark. 

47. SEAFORMS or SEA FORMS is a generic term for a type of glass artwork, not 

entitled to protection as a mark. 

48. SEAFORMS or SEA FORMS is at best a descriptive term, in which Plaintiffs 

have failed to establish secondary meaning. 

49. Defendants do not use the term SEAFORMS or SEA FORMS as a “trade 

name” or mark. 

50. Defendants’ use of SEAFORMS or SEA FORMS is a fair use. 

51. Plaintiffs do not use the term BASKETS as a “trade name” or mark. 

52. BASKETS is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

53. BASKETS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

54. Defendants do not use the term BASKETS as a “trade name” or mark. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................25 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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55. Defendants’ use of BASKETS is a fair use. 

56. Plaintiffs do not use the term NAVAJO BLANKET CYLINDERS as a trade 

name or mark. 

57. NAVAJO BLANKET CYLINDERS is a generic term for a type of glass 

artwork, not entitled to protection as a mark. 

58. NAVAJO BLANKET CYLINDERS is at best a descriptive term, in which 

Plaintiffs have failed to establish secondary meaning. 

59. Defendants do not use the term NAVAJO BLANKET CYLINDERS as a 

“trade name” or mark. 

60. Any use by Defendants of NAVAJO BLANKET CYLINDERS is a fair use. 

61. Plaintiffs do not use the term FLOATS as a “trade name” or mark. 

62. FLOATS is a generic term for a type of glass artwork, not entitled to protection 

as a mark. 

63. FLOATS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

64. Defendants do not use the term FLOATS as a “trade name” or mark. 

65. Defendants’ use of FLOATS is a fair use. 

66. Plaintiffs do not use the term VENETIAN as a “trade name” or mark. 

67. VENETIAN is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

68. VENETIAN is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

69. Defendants do not use the term VENETIAN as a “trade name” or mark. 

70. Defendants’ use of VENETIAN is a fair use. 

71. IKEBANA is a Japanese term defining flower arrangements using material of 

any kind, including glass. 

72. Plaintiffs do not use the term IKEBANA as a “trade name” or mark. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................26 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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73. IKEBANA is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

74. IKEBANA is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

75. Defendants do not use the term IKEBANA as a “trade name” or mark. 

76. Defendants’ use of IKEBANA is a fair use. 

77. MACCHIA is an Italian word meaning spotted, stained, or marked. 

78. Plaintiffs do not use the term MACCHIA as a “trade name” or mark. 

79. MACCHIA is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

80. MACCHIA is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

81. Defendants do not use the term MACCHIA as a “trade name” or mark. 

82. Defendants’ use of MACCHIA is a fair use. 

83. Plaintiffs do not use the term PERSIANS as a “trade name” or mark. 

84. PERSIANS is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

85. PERSIANS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

86. Defendants do not use the term PERSIANS as a “trade name” or mark. 

87. Defendants’ use of PERSIANS is a fair use. 

88. Plaintiffs’ alleged trade dress is not inherently distinctive as a matter of law. 

89. Plaintiffs’ alleged trade dress is functional. 

90. Plaintiffs’ alleged trade dress lacks secondary meaning. 

91. Plaintiffs’ alleged trade dress is generic. 

92. Defendant Rubino did not breach any contract or other obligations to Plaintiffs. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................27 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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93. Defendants did not wrongfully induce Defendant Rubino to breach any 

obligations or business expectancies to Plaintiffs. 

94. Some or all of Plaintiffs’ non-copyright claims are pre-empted by the 

Copyright Laws of the United States. 

95. Some or all of Plaintiffs’ claims are pre-empted by the Patent Laws of the 

United States. 

96. Plaintiffs have failed to allege facts that, if true, are sufficient to establish that 

Defendants engaged in a pattern of racketeering activity. 

97. Plaintiffs cannot establish Defendants had access to Plaintiffs’ registered works 

and/or the portions thereof they allege to have been copied by Defendants. 

98. Plaintiffs have knowingly misused their copyrights by asserting and 

threatening to assert copyright infringement without regard to whether Defendants had access 

to Plaintiffs’ alleged works and to whether Plaintiffs’ alleged work contained any protectable 

elements. 

99. Defendants reserve the right to assert additional defenses and affirmative 

defenses. 

COUNTERCLAIMS

Defendants assert the following counterclaims against Portland Press, Chihuly, Inc. 

and Dale Chihuly. 

JURISDICTION AND VENUE 

1. This Court has original jurisdiction over the subject matter of these 

counterclaims pursuant to 28 U.S.C. §§ 1331 (Federal Question), 1338(a) (Copyrights and 

Trademarks), and 2201(a) (Declaratory Judgment) over the other claims set forth below by 

virtue of 28 U.S.C. § 1338(b) and pendent jurisdiction. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................28 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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2. Venue is proper in this District pursuant to 28 U.S.C. §§ 1391(b). 

THE PARTIES 

3. Robert Kaindl (referred to as “Kaindl”) is an individual residing in Redmond, 

King County, Washington. 

4. Art Glass Production is a sole proprietorship owned by Kaindl (collectively, 

Art Glass Production and Kaindl are referred to herein as “Defendants”), with a mailing 

address of P.O. Box 98, Kirkland, Washington 98083. 

5. Defendants are informed and believe, and on that basis aver, that Plaintiff 

Portland Press, Inc. (referred to herein as “PPI”) is a Washington corporation with a mailing 

address of P.O. Box 70856, Seattle, Washington 98127-1305. 

6. Defendants are informed and believe, and on that basis aver, that Plaintiff 

Chihuly, Inc. (referred to herein as “CI”) is a Washington corporation with a mailing address 

of 1111 NW 50th Street, Seattle, Washington 98107-5120. 

7. Defendants are informed and believe, and on that basis aver, that crossdefendant Dale Chihuly (referred to herein as “Chihuly”) is an individual residing in Seattle, 

King County, Washington. 

PERTINENT FACTS 

8. Defendants are informed and believe, and on that basis aver, that Chihuly 

directed and controlled or had the ability and opportunity to direct and control the activities of 

Plaintiffs PPI and CI complained of herein. 

9. Defendants are informed and believe, and on that basis aver, that PPI and CI, 

and others acting at the direction of PPI and CI, have provided disparaging, false, and 

misleading information regarding Defendants to the media in order to damage the reputation, 

business and economic interests of Defendants. 

10. Defendants are informed and believe, and on that basis aver, that PPI and CI, 

and others acting at the direction of PPI and CI, have provided disparaging, false, and 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................29 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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misleading information regarding Defendants to Defendants’ customers and others in order to 

damage the reputation, business and economic interests of Defendants. 

11. Defendants are informed and believe, and on that basis aver, that PPI and CI, 

and others acting at the direction of PPI and CI, have contacted and provided disparaging, 

false, and misleading information regarding Defendants to those associated with Defendants 

in order to damage the reputation, business and economic interests of Defendants. 

12. Defendants are informed and believe, and on that basis aver, that Plaintiffs told 

staff members and/or gallery owners at Lakeshore Gallery (referred to as “Lakeshore”), 

Kenneth Behm Galleries Ltd. (referred to as “Behm Gallery”) and Trammell-Gagne, LLC 

(referred to as “Trammell-Gagne”) to not remove Defendants’ glass artwork from display. 

13. Defendants are informed and believe, and on that basis aver, that Plaintiffs 

threatened staff members and/or gallery owners at Lakeshore, Behm Gallery and TrammellGagne, to cease sales of Defendants’ glass artwork. 

14. Defendants are informed and believe, and on that basis aver, that Plaintiffs 

advised staff members and/or gallery owners that Plaintiffs would arrange for Defendants’ 

artworks to be seized. 

15. These activities of PPI and CI induced Lakeshore to terminate an ongoing 

business relationship with Defendants. 

16. These activities of PPI and CI induced the Behm Gallery to terminate an 

ongoing business relationship with Defendants. 

17. These activities of PPI and CI induced Trammell-Gagne to terminate an 

ongoing business relationship with Defendants. 

18. These activities of PPI and CI induced UNIK! LLC (referred to as “UNIK!”) to 

terminate an ongoing business relationship with Defendants. 

19. These activities of PPI and CI induced Costco Wholesale Corp. (referred to as 

“Costco”) to terminate an ongoing business relationship with Defendants. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................30 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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20. These activities of PPI and CI induced The Seattle Home Show (referred to as 

“Home Show”) to terminate an ongoing business relationship with Defendants. 

21. These activities of PPI and CI have prevented Defendants from consummating 

an expected business relationship. 

22. Defendants are informed and believe, and on that basis aver, that Plaintiffs 

intercepted customers at Trammel-Gagne and told them that Defendants’ glass artworks were 

“cheap knock-offs” of poor quality. 

23. Defendants are informed and believe, and on that basis aver, that Plaintiffs 

intercepted customers at Trammel-Gagne and told them that Defendants did not make the 

glass artwork carrying Defendants’ name. 

24. Plaintiffs have falsely told others that Defendant Kaindl has had no formal 

training as a glassblower and no actual experience as a glassblower. 

25. Defendant Kaindl conceives of the concept for the glass artwork carrying 

Defendants’ name. 

26. Defendant Kaindl materially participates in the manufacturing of glass artwork 

carrying Defendants’ name. 

27. Defendants are informed and believe, and on that basis aver, that Chihuly does 

not participate in the design or manufacturing of a substantial number of glass artwork 

carrying the CHIHULY mark. 

28. Defendants are informed and believe, and on that basis aver, that Plaintiffs 

sometimes purchase glass sculptures from non-party artists, remove the mark of those artists 

from the work, and re-brand those sculptures under the CHIHULY mark. 

29. Defendants are informed and believe, and on that basis aver, that Chihuly is 

not the source of inspiration for a substantial number of glass artwork carrying the CHIHULY 

mark. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................31 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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30. Defendants are informed and believe, and on that basis aver, that Chihuly does 

not conceive the concept for a substantial number of glass artwork carrying the CHIHULY 

mark. 

31. Defendants are informed and believe, and on that basis aver, that Chihuly does 

not sign his name on a substantial number of glass artwork carrying the CHIHULY mark. 

32. Defendants are informed and believe, and on that basis aver, that individuals 

other than Chihuly sign the Chihuly name on a substantial number of glass artwork carrying 

the CHIHULY mark. 

33. Defendants are informed and believe, and on that basis aver, that when 

Defendant Rubino was an independent contractor, Dale Chihuly would often ask Mr. Rubino 

to “come up with something” for Dale Chihuly to review and purchase for CI, so that CI 

could sell it. 

34. With regard to works created solely or jointly by Defendants and which 

Plaintiffs may accuse of infringement, Defendants independently created the accused works. 

35. Defendants are informed and believe, and on that basis aver, that for works 

created solely or jointly by Defendant Rubino and which Plaintiffs may accuse of 

infringement, Defendant Rubino independently created the accused works. 

36. Defendants are informed and believe, and on that basis aver, Defendant Rubino 

did not breach any contract or other obligations to Plaintiffs. 

37. Defendants did not wrongfully induce Defendant Rubino to breach any 

obligations or business expectancies to Plaintiffs. 

38. Plaintiffs knowingly misused their alleged copyrights by attempting to secure 

exclusive rights or limited monopolies for genres and techniques through Copyright Laws 

where such rights are not granted by the Copyright laws. 

39. Plaintiffs knowingly misused their alleged trademarks, “trade names” and trade 

dress rights by asserting against Defendants trademark and/or trade dress rights where such 

rights are not granted by the trademark laws. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................32 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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40. Defendant Rubino authored or co-authored many of the works identified in the 

Complaint, and Defendants are non-exclusive licensees of Rubino. 

41. Plaintiffs do not own the CHIHULY mark. 

42. The CHIHULY mark is not famous. 

43. There has been no actual dilution of the CHIHULY mark. 

44. Defendants have not used the CHIHULY mark on their works. 

45. Defendants prominently and consistently used the KAINDL mark on and in 

connection with their work. 

46. There is no likelihood of confusion. 

47. Consumers have been able to distinguish Defendants’ glass artwork from 

Plaintiffs’ glass artwork without apparent confusion. 

48. Plaintiffs’ registered works consist in whole or in substantial part of public 

domain or standard elements. 

49. Plaintiffs’ registered works consist in whole or in substantial part of functional 

elements. 

50. Plaintiffs’ registered works consist in whole or in substantial part of elements 

that are not original to Plaintiffs. 

51. Lip wrap is a standard element in glass artwork. 

52. Lip wrap is a functional element in glass artwork because it adds strength to 

the outer portion(s) and/or edge(s) of the glass artwork. 

53. Lip wrap is a functional element in glass artwork because it adds a smooth 

surface to the outer portion(s) and/or edge(s) of the glass artwork. 

54. Glass artworks have included lip wraps for centuries. Attached hereto as 

Exhibit A are photographs of examples of lip wraps from N. Hanson Moore, Old Glass –

European and American, p. 17, 111-112, 226, Stokes (1924) (hereinafter “Moore”). Attached 

hereto as Exhibits B are photographs from Dorigato, et al., Glass for the Table, p. 15, 20-23, 

Arsenale Editrice srl (1999) (hereinafter “Dorigato”). 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................33 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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55. Extended lip wrap is a standard element in glass artwork. 

56. Extended lip wrap is a functional element in glass artwork because it adds 

strength to the body of the glass artwork. 

57. Glass artworks have included extended lip wraps for centuries. See Exhibits A 

and B. 

58. A lip wrap having a color different than the color of the body of the artwork is 

a standard element in glass artwork. See Exhibits A and B. 

59. Glass artworks have included lip wraps having a color different than the color 

of the body of the artwork for centuries. See Exhibits A and B. 

60. Applying a gathering or bead of glass (e.g. a button or punty) to the bottom or 

base of glass artwork is a standard element in glass artwork. 

61. Applying a bead of glass (e.g. a button or punty) to the bottom or base of glass 

artwork is a functional element in glass artwork because it adds strength to the base of the 

glass artwork. 

62. Applying a bead of glass (e.g. a button or punty) to the bottom or base of glass 

artwork is a functional element in glass artwork because it protects the color of the glass 

artwork. 

63. Applying a bead of glass (e.g. a button or punty) to the bottom or base of glass 

artwork is a functional element in glass artwork because it prevents the base or bottom of the 

glass artwork from cracking. 

64. Glass artworks have included the application of a bead of glass (e.g. a button 

or punty) to the bottom or base of the glass artworks for centuries. 

65. Wrinkles are a standard element in glass artwork. 

66. Wrinkles are a natural consequence of control, spinning and gravity. 

67. Wrinkles are a functional element in glass artwork because they add strength to 

the body of the glass artwork. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................34 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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68. Wrinkles are a functional element in glass artwork because they resemble 

organic and/or natural shapes associated with the subject(s) of the glass artwork. 

69. Glass artworks have included wrinkles for centuries. Attached hereto as 

Exhibit C are photographs from pages 18, 24-25, 27 and 31 and the cover of Dorigato. See 

also Exhibit A. 

70. Ripples are a standard element in glass artwork. 

71. Ripples are a natural consequence of control, spinning and gravity. 

72. Ripples are a functional element in glass artwork because they add strength to 

the body of the glass artwork. 

73. Ripples are a functional element in glass artwork because they resemble 

organic and/or natural shapes associated with the subject(s) of the glass artwork. 

74. Glass artworks have included ripples for centuries. See Exhibit C. 

75. Fluting is a standard element in glass artwork. 

76. Fluting is a natural consequence of control, spinning and gravity. 

77. Fluting is a functional element in glass artwork because it adds strength to the 

body of the glass artwork. 

78. Fluting is a functional element in glass artwork because it resembles organic 

and/or natural shapes associated with the subject(s) of the glass artwork. 

79. Glass artworks have included fluting for centuries. 

80. Optic molds are a standard element in glass artwork. 

81. Optic molds are a functional element in glass artwork. 

82. Glass artworks have been produced using optic molds for centuries. 

83. Asymmetry is a standard element in a type of glass artwork. 

84. Asymmetry is a functional element in a type of glass artwork. 

85. Glass artworks have included asymmetries for centuries. See Exhibits A and 

C. 

86. Encasing is a standard element in glass artwork 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................35 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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87. Encasing is a functional element in glass artwork because it allows use of 

multiple colors. 

88. Encasing is a functional element in glass artwork because it protects colors. 

89. Encasing is a functional element in glass artwork because it adds strength to 

the glass artwork. 

90. Glass artworks have included encasings for centuries. 

91. Nested glass artwork, such as nested bowls, are a standard element in a type of 

glass artwork. 

92. Nested glass artwork are a functional element in a type of glass artwork. 

93. Glass artworks have included nested glass artworks for centuries. See

Exhibit E. 

94. The use of multiple colors is a standard element in glass artwork. 

95. The use of multiple colors is functional. 

96. Glass artworks have included multiple colors for centuries. Attached hereto as 

Exhibit D are photographs from pages 90, 113, 136, and 140-141 of Moore. Attached hereto 

as Exhibit E are photographs from page 40 of Dorigato. See also Exhibits A, B and C. 

97. Attached hereto as Exhibit F are photographs from G. Mariacher, Italian 

Blown Glass From Ancient Rome to Venice, McGraw Hill (1961), of additional artworks 

illustrating the use of various standard elements and combinations all predating any artworks 

allegedly authored by Mr. Chihuly. Attached hereto as Exhibit G are photographs from Tait, 

Five Thousand Years of Glass, rev. ed., Penn (1991), illustrating the use of standard elements 

and combinations that predate any artworks allegedly authored by Mr. Chihuly. 

98. Plaintiffs do not use the term CHANDELIERS as a “trade name” or mark. 

99. CHANDELIERS is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

100. CHANDELIERS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................36 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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101. Defendants do not use the term CHANDELIERS as a “trade name” or mark. 

102. Plaintiffs do not use the term CYLINDERS as a trade name or mark. 

103. CYLINDERS is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

104. CYLINDERS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

105. Defendants do not use the term CYLINDERS as a “trade name” or mark. 

106. Defendants’ use of CYLINDERS is a fair use. 

107. Plaintiffs do not use the term SEAFORMS as a “trade name” or mark. 

108. SEAFORMS or SEA FORMS is a generic term for a type of glass artwork, not 

entitled to protection as a mark. 

109. SEAFORMS or SEA FORMS is at best a descriptive term, in which Plaintiffs 

have failed to establish secondary meaning. 

110. Defendants do not use the term SEAFORMS or SEA FORMS as a “trade 

name” or mark. 

111. Defendants’ use of SEAFORMS or SEA FORMS is a fair use. 

112. Plaintiffs do not use the term BASKETS as a “trade name” or mark. 

113. BASKETS is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

114. BASKETS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

115. Defendants do not use the term BASKETS as a “trade name” or mark. 

116. Defendants’ use of BASKETS is a fair use. 

117. Plaintiffs do not use the term NAVAJO BLANKET CYLINDERS as a “trade 

name” or mark. 

118. NAVAJO BLANKET CYLINDERS is a generic term for a type of glass 

artwork, not entitled to protection as a mark. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................37 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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119. NAVAJO BLANKET CYLINDERS is at best a descriptive term, in which 

Plaintiffs have failed to establish secondary meaning. 

120. Defendants do not use the term NAVAJO BLANKET CYLINDERS as a 

“trade name” or mark. 

121. Any use by Defendants’ of NAVAJO BLANKET CYLINDERS is a fair use. 

122. Plaintiffs do not use the term FLOATS as a “trade name” or mark. 

123. FLOATS is a generic term for a type of glass artwork, not entitled to protection 

as a mark. 

124. FLOATS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

125. Defendants do not use the term FLOATS as a “trade name” or mark. 

126. Defendants’ use of FLOATS is a fair use. 

127. Plaintiffs do not use the term VENETIAN as a “trade name” or mark. 

128. VENETIAN is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

129. VENETIAN is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

130. Defendants do not use the term VENETIAN as a “trade name” or mark. 

131. Defendants’ use of VENETIAN is a fair use. 

132. IKEBANA is a Japanese term defining flower arrangements using material of 

any kind, including glass. 

133. Plaintiffs do not use the term IKEBANA as a “trade name” or mark. 

134. IKEBANA is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

135. IKEBANA is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

136. Defendants do not use the term IKEBANA as a “trade name” or mark. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................38 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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137. Defendants’ use of IKEBANA is a fair use. 

138. MACCHIA is an Italian word meaning spotted, stained or marked. 

139. Plaintiffs do not use the term MACCHIA as a “trade name” or mark. 

140. MACCHIA is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

141. MACCHIA is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

142. Defendants do not use the term MACCHIA as a “trade name” or mark. 

143. Defendants’ use of MACCHIA is a fair use. 

144. Plaintiffs do not use the term PERSIANS as a “trade name” or mark. 

145. PERSIANS is a generic term for a type of glass artwork, not entitled to 

protection as a mark. 

146. PERSIANS is at best a descriptive term, in which Plaintiffs have failed to 

establish secondary meaning. 

147. Defendants do not use PERSIANS as a “trade name” or mark. 

148. Defendants’ use of PERSIANS is a fair use. 

149. To the extent any elements of Plaintiffs’ registered works are original to 

Plaintiffs, Plaintiffs abandoned any rights thereto by dedicating the elements to the public by, 

for example, teaching them to students. 

150. Plaintiffs have knowingly misused their copyrights by asserting and 

threatening to assert copyright infringement without regard to whether Defendants had access 

to Plaintiffs’ alleged works and to whether Plaintiffs’ alleged work contained any protectable 

elements alleged to have been copied by the Defendants. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................39 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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COUNT 1 

DECLARATORY JUDGMENT 

151. Defendants incorporate by this reference each of the averments contained in 

paragraphs 1 through 150, inclusive, as if fully set forth herein. 

152. An actual case or controversy exists between Defendants on the one hand and 

PPI, CI and Chihuly on the other hand regarding whether Defendants infringe Plaintiffs’ 

alleged registered and unregistered works. 

153. Defendants, therefore, request a declaratory judgment that Defendants do not 

infringe Plaintiffs’ alleged registered and unregistered works. 

154. An actual case or controversy exists between Defendants on the one hand and 

PPI, CI and Chihuly on the other hand regarding whether Plaintiffs’ registered and 

unregistered works are entitled to any copyright protection. 

155. An actual case or controversy exists between Defendants on the one hand and 

PPI, CI and Chihuly on the other hand regarding the scope of any protection under the 

copyright laws that should be afforded to Plaintiffs’ registered and unregistered works. 

156. Defendants, therefore, request a declaratory judgment that Plaintiffs’ registered 

and unregistered works are not entitled to any copyright protection. 

157. An actual case or controversy exists between Defendants on the one hand and 

PPI, CI and Chihuly on the other hand regarding whether Defendants infringe Plaintiffs’ 

CHIHULY mark. 

158. Defendants, therefore, request a declaratory judgment that Defendants do not 

infringe Plaintiffs’ CHIHULY mark. 

159. An actual case or controversy exists between Defendants on the one hand and 

PPI, CI and Chihuly on the other hand regarding whether Defendants infringe Plaintiffs’ 

alleged trade dress. 

160. Defendants, therefore, request a declaratory judgment that Defendants do not 

infringe Plaintiffs’ alleged trade dress. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................40 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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161. An actual case or controversy exists between Defendants on the one hand and 

PPI, CI and Chihuly on the other hand regarding whether Plaintiffs have any rights in their 

alleged trade dress. 

162. Defendants, therefore, request a declaratory judgment that Plaintiffs do not 

have any rights in their alleged trade dress. 

163. An actual case or controversy exists between Defendants on the one hand and 

PPI, CI and Chihuly on the other hand regarding whether Defendants infringe any rights in 

Plaintiffs’ alleged “trade names.” 

164. Defendants, therefore, request a declaratory judgment that Defendants do not 

infringe any rights in Plaintiffs’ alleged “trade names.” 

COUNT 2

TORTIOUS INTERFERENCE WITH BUSINESS EXPECTATIONS 

165. Defendants incorporate by this reference each of the averments contained in 

paragraphs 1 through 164 inclusive, as if fully set forth herein. 

166. PPI, CI and Chihuly have knowledge that Defendants are a business entity with 

a growing business model. 

167. PPI, CI and Chihuly have acted independently and in concert to contact 

Defendants’ business associates and existing and potential customers, willfully with malicious 

intent and for the purpose of providing disparaging, false, and misleading information to 

irreparably harm the business and economic interests of Defendants, among others. 

168. Defendants have been, and will continue to be, damaged by such actions in an 

amount to be proven at trial and in a manner and amount that cannot be fully measured or 

compensated in economic terms and for which there is no adequate remedy at law, entitling 

Defendants to preliminary and permanent injunctive relief. 

COUNT 3 

COPYRIGHT MISUSE 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................41 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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169. Defendants incorporate by this reference each of the averments contained in 

paragraphs 1 through 168 inclusive, as if fully set forth herein. 

170. Plaintiffs have knowingly misused their copyrights by attempting to secure 

exclusive rights or limited monopolies for genres and techniques through Copyright Laws 

where such rights are not granted by the Copyright Laws. 

171. Defendants have been, and will continue to be, damaged by such actions in a 

manner and amount that cannot be fully measured or compensated in economic terms and for 

which there is no adequate remedy at law, entitling Defendants to preliminary and permanent 

injunctive relief. 

COUNT 4 

TRADEMARK MISUSE 

172. Defendants incorporate by this reference each of the averments contained in 

paragraphs 1 through 171 inclusive, as if fully set forth herein. 

173. Plaintiffs have knowingly misused their alleged trademark-related rights by 

asserting against Defendants trademark, trade name, and/or trade dress rights where such 

rights are not granted by the trademark laws. 

174. Defendants have been, and will continue to be, damaged by such actions in a 

manner and amount that cannot be fully measured or compensated in economic terms and for 

which there is no adequate remedy at law, entitling Defendants to preliminary and permanent 

injunctive relief. 

COUNT 5 

LANHAM ACT UNFAIR COMPETITION 

175. Defendants incorporate by this reference each of the averments contained in 

paragraphs 1 through 174 inclusive, as if fully set forth herein. 

176. Plaintiffs’ disparagement of Defendants’ reputation and assertions to 

Defendants’ customers and associates that Defendant Kaindl has had no formal training as a 

glassblower and no actual experience as a glassblower, and that glass artwork carrying 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................42 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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Defendants’ name was not conceived of or manufactured by Defendants, and other unfair 

activities, constitutes an unfair method of competition in business and an unfair trade practice 

in business in violation of the Lanham Act. 

177. Defendants have been, and will continue to be, damaged by such actions in an 

amount to be proven at trial and in a manner and amount that cannot be fully measured or 

compensated in economic terms and for which there is no adequate remedy at law, entitling 

Defendants to preliminary and permanent injunctive relief. 

COUNT 6 

CONSUMER PROTECTION ACT 

178. Defendants incorporate by this reference each of the averments contained in 

paragraphs 1 through 177 inclusive, as if fully set forth herein. 

179. Plaintiffs’ disparagement of Defendants’ reputation and assertions to 

Defendants’ customers and associates that Defendant Kaindl has had no formal training as a 

glassblower and no actual experience as a glassblower, and that glass artwork carrying 

Defendants’ name was not conceived of or manufactured by Defendants, and other unfair 

activities, constitutes an unfair method of competition in business and an unfair trade practice 

in business, as well as fraudulent representations, which is damaging to the public interest in 

violation of the Washington Consumer Protection Act, R.C.W. § 19.86.020. 

180. Defendants have been, and will continue to be, damaged by such actions in an 

amount to be proven at trial and in a manner and amount that cannot be fully measured or 

compensated in economic terms and for which there is no adequate remedy at law, entitling 

Defendants to preliminary and permanent injunctive relief. 

 

PRAYER FOR RELIEF

WHEREFORE, Defendants pray for relief and Judgment as follows: 

1. That Plaintiffs take nothing on their Complaint. 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................43 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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2. A declaration that Plaintiffs’ registered and unregistered works lack sufficient 

originality to be entitled to Copyright protection. 

3. A declaration that Defendants do not infringe Plaintiffs’ registered works. 

4. A declaration that Defendants do not infringe Plaintiffs’ unregistered works. 

5. A declaration that lip wraps are not a protectable element. 

6. A declaration that extended lip wraps are not a protectable element. 

7. A declaration that different colored lip wraps are not a protectable element. 

8. A declaration that nested bowls are not a protectable element. 

9. A declaration that encased glass is not a protectable element. 

10. A declaration that the use of combinations of colors is not a protectable 

element. 

11. A declaration that asymmetry is not a protectable element. 

12. A declaration that wrinkles are not a protectable element. 

13. A declaration that ripples are not a protectable element. 

14. A declaration that applying glass (e.g., a punty) to an artwork is not a 

protectable element. 

15. A declaration that fluting is not a protectable element. 

16. A declaration that using optic molds is not a protectable element. 

17. That Defendant be awarded costs of this action, including attorneys’ fees, 

pursuant to 17 U.S.C. § 505. 

18. A declaration that Defendants have not infringed any rights of Plaintiffs under 

the Lanham Act or the common law. 

19. A declaration that Defendants have not engaged in any unfair business 

practices. 

20. That Plaintiffs and their officers, agents, servants, employees, attorneys and all 

other persons in active concert or participation with any of them, be enjoined and restrained 

during the pendency of this action and permanently thereafter from all acts of false 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................44 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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description and representation, false designation of origin, and all acts of unfair competition, 

including false representations regarding the level of skill of the Defendants, and the 

participating of the Defendant in the conception, design, and manufacture of the Defendants’ 

works, and the non-participation of Counter-Defendant Dale Chihuly in the conception, 

design and manufacture of Plaintiffs’ works and likely to cause confusion, mistake, or 

deception in the minds of the consuming public. 

21. That Plaintiffs be required to pay Defendants such damages as Defendants 

have sustained, or will sustain, in consequence of Plaintiffs’ false description and 

representation, false designation of origin, and unfair competition, and to account for all 

gains, profits, and advantages derived by Plaintiffs that are attributable to such unlawful acts; 

and that such damages be trebled as provided by 15 U.S.C. § 1117 and R.C.W. § 19.86.090, 

or as otherwise permitted by law. 

22. An injunction prohibiting Plaintiffs, and those acting in concert with Plaintiffs, 

from filing any other action against Defendants based on alleged infringement of Plaintiffs’ 

registered and unregistered works without first requesting and receiving permission from this 

Court to file the action; the injunction requiring Plaintiffs, and those acting in concert with 

Plaintiffs, to post a bond in an amount determined by the Court to be sufficient to cover 

Defendants’ costs in responding to the request, including reasonable attorneys’ fees, before 

requesting permission from the Court to file such an action and to provide the Court with a 

copy of the injunction together with any such request. 

23. An injunction prohibiting Plaintiffs, and those acting in concert with Plaintiffs, 

from filing any other action against Defendants based on alleged infringement of Plaintiffs’ 

alleged trademarks, “trade names” and trade dress without first requesting and receiving 

permission from this Court to file the action; the injunction requiring Plaintiffs, and those 

acting in concert with Plaintiffs, to post a bond in an amount determined by the Court to be 

sufficient to cover Defendants’ costs in responding to the request, including reasonable 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................45 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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attorneys’ fees, before requesting permission from the Court to file such an action and to 

provide the Court with a copy of the injunction together with any such request. 

24. That the Complaint and all claims against Defendants be dismissed with 

prejudice. 

25. That this Court award Defendants their reasonably attorneys’ fees and costs of 

suit herein. 

26. That this Court grant prejudgment and post judgment interest to Defendants. 

27. That this Court grant Defendants such other and further relief as the Court 

deems appropriate. 

DEMAND FOR JURY TRIAL

 Defendants demand a jury trial on all issues so triable. 

DATED this 5th day of May, 2006. 

Respectfully submitted, 

SEED IP Law Group PLLC 

 /s/ Timothy L. Boller 

William O. Ferron, Jr., WSBA # #11831 

Timothy L. Boller, WSBA #29079 

701 Fifth Avenue, Suite 6300 

Seattle, Washington 98104 

Telephone: (206) 622-4900 

Attorneys for Defendants 

ROBERT KAINDL and 

ART GLASS PRODUCTION 

774699_6.DOC 
ANSWER, AFFIRMATIVE DEFENSES AND 

COUNTERCLAIMS OF DEFENDANTS ROBERT KAINDL 

AND ART GLASS PRODUCTION (C05-1801-JPD).................46 

SEED I P LAW GROUP PLLC

701 FIFTH AVENUE, SUITE 6300 

SEATTLE, WASHINGTON 98104-7092 

(206) 622-4900

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CERTIFICATE OF SERVICE

I hereby certify that on May 5, 2006 a copy of the foregoing ANSWER, 

AFFIRMATIVE DEFENSES AND COUNTERCLAIMS OF DEFENDANTS ROBERT 

KAINDL AND ART GLASS PRODUCTION was served on attorneys registered to receive 

service by email through the Western District of Washington Electronic Case Filing System 

and by hand-delivery to the following: 

Holly Marie Simpkins 

hsimpkins@perkinscoie.com

Susan E. Foster 

sfoster@perkinscoie.com

William C. Rava 

wrava@perkinscoie.com

PERKINS COIE 

1201 Third Avenue, Suite 4800 

Seattle, WA 98101 

Scott Channing Wakefield 

(swake@twlaw.com)

TODD & WAKEFIELD

1501 Fourth Avenue 

1700 Century Square 

Seattle, Washington 98101-3660 

Kathleen T. Petrich 

(kathleen.petrich@stokeslaw.com) 

Bradford J. Axel 

(bradford.axel@stokeslaw.com) 

STOKES LAWRENCE, P.S. 

800 Fifth Avenue, Suite 4000 

Seattle, Washington 98104 

 /s/ Timothy L. Boller 

Timothy L. Boller