WA 903903.2

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

MEDTECH PRODUCTS, INC., 

Plaintiff,

v.

RANIER, LLC, et al.,

Defendants.

Consolidated Civil Action 

No.: 07 CV 03302-UA-LMS

ANSWER AND COUNTERCLAIM

OF POWER PRODUCTS, INC.

DEMAND FOR JURY TRIAL

ECF Filed

MEDTECH PRODUCTS, INC., 

Plaintiff,

v.

DENTEK ORAL CARE, INC.,

Defendant.

MEDTECH PRODUCTS, INC., 

Plaintiff,

v.

POWER PRODUCTS, INC.,

Defendant.

Defendant Power Products, Inc. d/b/a Splintek ( Splintek ), by and through its undersigned 

attorneys, submits the following Answer to the Complaint for Injunctive Relief and Money Damages 

(the Complaint ) of Plaintiff Medtech Products, Inc., hereinafter ( Medtech ):

INTRODUCTION

1. Paragraph 1 summarizes Plaintiff's asserted causes of action but makes no allegation 

of fact to which a response by Defendant is required.

2. Defendant denies that NIGHTGUARDTM has trademark significance. Defendant is 

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

allegations of Paragraph 2 of the Complaint and therefore denies them.

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3. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 3 of the Complaint and therefore denies them.

4. Defendant admits only that it is marketing and selling its night guard products in the

over-the-counter ( OTC ) market but denies all remaining allegations of Paragraph 4 of the

Complaint. 5. Defendant admits only that it has not received formal authorization from the Food and 

Drug Administration ( FDA ) to market and sell its night guard products in the over-the-counter 

market and that it received such formal authorization from the FDA to sell its night guard products 

by prescription in Exhibit A to the Complaint but denies all remaining allegations of Paragraph 5 of 

the Complaint. 6. Defendant admits only that it is now offering its night guard products for sale in the 

over-the-counter market and that Exhibit B to the Complaint is a copy of the letter Defendant

received from the FDA (which letter speaks for itself) but Defendant denies all remaining allegations 

of Paragraph 6 of the Complaint. 7. Defendant admits only that it sells certain of its night guard products at retail prices 

between $39 and $99 but denies all remaining allegations of Paragraph 7 of the Complaint. Defendant is without knowledge or information sufficient to form a belief as to the truth of certain of 

the remaining allegations of Paragraph 7 and therefore denies them and Defendant otherwise

expressly denies all remaining allegations of Paragraph 7 of the Complaint. 8. Defendant denies all the allegations of Paragraph 8 of the Complaint. PARTIES, JURISDICTION & VENUE

9. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 9 of the Complaint and therefore denies them.

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10. Defendant admits that Power Products, Inc. is a corporation organized as alleged with 

its principal place of business at the address alleged.

11. Paragraph 11 summarizes the laws under which Plaintiff brings its asserted causes of 

action but makes no allegation of fact to which a response by Defendant is required.

12. Paragraph 12 states only legal conclusions to which no response by Defendant is

required. To the extent a response is required, Defendant is without knowledge or information

sufficient to form a belief as to the truth of the allegations of Paragraph 12 of the Complaint and

therefore denies them.

13. Paragraph 13 states only a legal conclusion to which no response by Defendant is

required. To the extent a response is required, Defendant does not contest this Court s exercise of

personal jurisdiction over it under extant law.

14. Paragraph 14 states only legal conclusions to which no response by Defendant is

required. To the extent a response is required, Defendant does not contest this Court as the venue of 

this action under extant law but reserves its right to seek transfer to a more convenient federal venue 

by appropriate motion.

FACTS COMMON TO ALL COUNTS

15. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 15 of the Complaint and therefore denies them. 16. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 16 of the Complaint and therefore denies them.

17. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 17 of the Complaint and therefore denies them. Defendant

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expressly denies that the packaging attached as Exhibit C to the Complaint is sufficiently distinct or 

otherwise meets the criteria for trade dress protection.

18. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 18 of the Complaint and therefore denies them.

19. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 19 of the Complaint and therefore denies them.

20. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 20 of the Complaint and therefore denies them.

21. Defendant denies the allegations in the first sentence of Paragraph 21 of the

Complaint. Defendant also deniesthe allegation in Paragraph 21 that Plaintiff is entitled to any legal 

protection for its purported Trade Dress. With regard to all the remaining allegations of Paragraph 

21 of the Complaint, Defendant is without knowledge or information sufficient to form a belief as to 

their truth and therefore denies them.

22. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 22 of the Complaint and therefore denies them.

23. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 23 of the Complaint and therefore denies them.

24. Defendant denies the allegations in Paragraph 24 of the Complaint that

NIGHTGUARDTM has trademark significance and that Plaintiff is entitled to any legal protection for 

its purported Trade Dress. With regard to the remaining allegations of Paragraph 24, Defendant is 

without knowledge or information sufficient to form a belief as to their truth and therefore denies 

them.

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25. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 25 of the Complaint and therefore denies them.

26. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 26 of the Complaint and therefore denies them.

27. Defendant admits only that Plaintiff filed a federal trademark application (Ser. No. 

77/056,556) for its purported NIGHTGUARD mark but is without knowledge or information

sufficient to form a belief as to the truth of the remaining allegations of Paragraph 27 of the

Complaint and therefore denies them.

28. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 28 of the Complaint and therefore denies them.

29. Defendant admits only that it markets, distributes, and sells its own night guard

products throughout the country and in the New York area, including through retailers listed on its 

web site, but denies all remaining allegations of Paragraph 29 of the Complaint. 30. Defendant admits only that Exhibit E to the Complaint is a copy of a specimen of

Defendant s packaging for its night guard products (which packaging speaks for itself) but is without 

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

Paragraph 30 of the Complaint and therefore denies them.

31. Defendant admits only that it markets, distributes, and sells its own night guard

products throughout the country and in the New York area and that its night guard products are

available for purchase on its web site but Defendant is without knowledge or information sufficient 

to form a belief as to the truth of all remaining allegations of Paragraph 31 of the Complaint and 

therefore denies them.

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32. Defendant admits only that its night guard product is an adjustable, pre-formed oral 

appliance that includes two bite pads and is not a full occlusion mouthpiece but Defendant denies all

remaining allegations of Paragraph 32 of the Complaint. 33. Defendant denies all the allegations of Paragraph 33 of the Complaint. 34. Defendant admits only that it received a Section 510(k) premarket authorization from 

the FDA for prescription sale of its night guard products but states that this authorization, the FDA 

marketing clearance (K022809) and 21 C.F.R. 801.109 all speak for themselves and to the extent 

Defendant is required to respond to Plaintiff s characterizations of them, Defendant denies the

remaining allegations of Paragraph 34 of the Complaint to the extent those allegations are

inconsistent with the actual text of the referenced documents.

35. Defendant admits only that the Care and Fitting Instructions attached as Exhibit F

to the Complaint have been used by Defendant but states that this document speaks for itself and to 

the extent Defendant is required to respond to Plaintiff s characterizations of it, Defendant denies the 

remaining allegations of Paragraph 35 of the Complaint to the extent those allegations are 

inconsistent with the actual text of the referenced document, including without limitation by use of 

emphasis not present in the referenced document. 36. Defendant denies all the allegations of Paragraph 36 of the Complaint. 37. Defendant admits only that its night guard product is being marketed over-the-counter 

without formal FDA approval (just as Plaintiff admits it marketed its product OTC for a number of 

years at Paragraphs 21 and 22 of the Complaint) but denies all the remaining allegations of

Paragraph 37 of the Complaint. 38. The allegations of Paragraph 38 state only Plaintiff's legal conclusions regarding the 

import of certain findings and recommendations of the U.S.F.D.A. Dental Advisory Panel and 

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Plaintiff s characterizations of those findings and recommendations(which speak for themselves) to 

which no response by Defendant is required. To the extent a response is required, Defendant denies 

all the allegations of Paragraph 38 of the Complaint. 39. Defendant admits only that it received a letter dated January 16, 2007 from the FDA 

and a copy of that letter is attached as Exhibit B to the Complaint but states that this letter speaks for 

itself and to the extent Defendant is required to respond to Plaintiff s characterizations of that letter, Defendant denies those allegations of Paragraph 39 of the Complaint that characterize that letter to 

the extent those allegations are inconsistent with the actual text of the referenced documents and

Defendant further denies all other allegations of Paragraph 39 including without limitation the

allegation that Defendant engaged in any illegal conduct. 40. Defendant admits only that it offers for sale, through retailers and over the Internet, 

its night guard products for OTC use but denies all remaining allegations of Paragraph 40 of the

Complaint. Further answering, Defendant states that it has changed its Cautions language and is

otherwise working in good faith to comply with FDA requirements.

41. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 41 of the Complaint and therefore denies them.

42. Defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations of Paragraph 42 of the Complaint and therefore denies them. 43. The first sentence and the last clause of the second sentence (which begins with the 

words that is actual notice ) of Paragraph 43 of the Complaint assert only Plaintiff's legal 

conclusions but make no allegation of fact to which a response by Defendant is required. Defendant 

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

the second sentence of Paragraph 43 of the Complaint and therefore denies them.

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44. Defendant admits only that its night guard products are currently advertised on the 

Internet and admits that Exhibit I to the Complaint appears to be a printout of warnings that were 

posted on Defendant s web site for a brief period of time but denies all the remaining allegations of 

Paragraph 44 of the Complaint. 45. Defendant denies all the allegations of Paragraph 45 of the Complaint. 46. Defendant denies all the allegations of Paragraph 46 of the Complaint. 47. Defendant denies all the allegations of Paragraph 47 of the Complaint. 48. Defendant denies all the allegations of Paragraph 48 of the Complaint. 49. Defendant denies all the allegations in the last sentence of Paragraph 49 of the

Complaint. Defendant is without knowledge or information sufficient to form a belief as to the truth 

of the allegations in the first two sentences of Paragraph 49 of the Complaint and therefore denies 

them.

50. Defendant denies all the allegations of Paragraph 50 of the Complaint. COUNT I

LANHAM ACT UNFAIR COMPETITION/USE OF FALSE DESIGNATION IN 

INTERSTATE COMMERCE

51. Defendant incorporates its previous responses to Paragraphs 1-50 of Plaintiff's

Complaint as if expressly stated herein. 52. Defendant admits only that it has sold its night guard products using the generic

designation night guard but denies all the remaining allegations of Paragraph 52 of the Complaint. 53. Defendant denies all the allegations of Paragraph 53 of the Complaint. 54. Defendant denies all the allegations of Paragraph 54 of the Complaint. 55. Defendant denies all the allegations of Paragraph 55 of the Complaint. 56. Defendant denies all the allegations of Paragraph 56 of the Complaint.

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57. Defendant denies all the allegations of Paragraph 57 of the Complaint. 58. Defendant denies all the allegations of Paragraph 58 of the Complaint. COUNT II

COPYRIGHT INFRINGEMENT

59. Defendant incorporates its previous responses to Paragraphs 1-58 of Plaintiff's

Complaint as if expressly stated herein.

60. Defendant denies all the allegations of Paragraph 60 of the Complaint. 61. Defendant denies all the allegations of Paragraph 61 of the Complaint. 62. Defendant denies all the allegations of Paragraph 62 of the Complaint. 63. Defendant denies all the allegations of Paragraph 63 of the Complaint. 64. Defendant denies all the allegations of Paragraph 64 of the Complaint. COUNT III

COMMON LAW UNFAIR COMPETITION

65. Defendant incorporates its previous responses to Paragraphs 1-64 of Plaintiff's

Complaint as if expressly stated herein.

66. Defendant denies all the allegations of Paragraph 66 of the Complaint. 67. Defendant denies all the allegations of Paragraph 67 of the Complaint. 68. Defendant denies all the allegations of Paragraph 68 of the Complaint. 69. Defendant denies all the allegations of Paragraph 69 of the Complaint. 70. Defendant denies all the allegations of Paragraph 70 of the Complaint. 71. Defendant denies all the allegations of Paragraph 71 of the Complaint. COUNT IV

COMMON LAW UNJUST ENRICHMENT

72. Defendant incorporates its previous responses to Paragraphs 1-71 of Plaintiff's

Complaint as if expressly stated herein.

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73. Defendant denies all the allegations of Paragraph 73 of the Complaint. 74. Defendant denies all the allegations of Paragraph 74 of the Complaint. 75. Defendant denies all the allegations of Paragraph 75 of the Complaint. 

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COUNT V

VIOLATION OF SECTION 349(h) NEW YORK ACT 

FOR CONSUMER PROTECTION FROM DECEPTIVE ACTS AND PRACTICES

76. Defendant incorporates its previous responses to Paragraphs 1-75 of Plaintiff's

Complaint as if expressly stated herein.

77. Defendant denies all the allegations of Paragraph 77 of the Complaint. 78. Defendant denies all the allegations of Paragraph 78 of the Complaint. 79. Defendant denies all the allegations of Paragraph 79 of the Complaint. 80. Defendant denies all the allegations of Paragraph 80 of the Complaint. 81. Defendant denies all the allegations of Paragraph 81 of the Complaint. 82. Defendant denies all the allegations of Paragraph 82 of the Complaint. 83. Defendant denies that Plaintiff is entitled to any of the relief requested in its Prayer 

for Relief, including Paragraphs 1 through 12 thereof.

84. Defendant denies each and every allegation set forth in the Complaint that it has not 

expressly and specifically admitted in its Answer above.

AFFIRMATIVE DEFENSES

First Affirmative Defense

The Complaint fails to state a claim upon which relief can be granted.

Second Affirmative Defense

Plaintiff has no trademark right, common law or otherwise, in the term night guard. Third Affirmative Defense

NIGHTGUARD is a generic term that is incapable of possessing or acquiring through use 

any trademark significance.

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Fourth Affirmative Defense

To the extent the term night guard may have common law trademark significance in a

particular geographic region, Defendant has a common law trademark right in the term night guard

in many geographic regions. Fifth Affirmative Defense

Plaintiff's claim to a national common law trade mark is preempted by Federal trademark

law.

Sixth Affirmative Defense

U.S. Reg. No. TX 6-536-309 registration is invalid.

Seventh Affirmative Defense

Plaintiff s claims are barred in whole or in part by the application of the doctrine of laches. Eighth Affirmative Defense

Plaintiff s claims are barred in whole or in part by application of the doctrines of equitable 

estoppel, waiver, and/or implied license.

Ninth Affirmative Defense

Plaintiff s claims are barred in whole or in part by its failure to mitigate its damages. Tenth Affirmative Defense

Plaintiff s damagesin itstrademark and unfair competition claims are limited by itsfailure to

give notice of its claim to trademark rights.

Eleventh Affirmative Defense

Plaintiff s damagesin itstrademark and unfair competition claims are limited by the doctrine 

of unclean hands arising from Plaintiff's willful false statement in its application for federal

trademark registration.

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Twelfth Affirmative Defense

Plaintiff has no copyright in the text at issue, and therefore no right to exclude Defendant

from using Plaintiff's text.

Thirteenth Affirmative Defense

Plaintiff's copyright in the text at issue does not encompass Defendant s text.

Fourteenth Affirmative Defense

Plaintiff's damages in its copyright infringement claim are limited by 17 U.S.C. § 412.

Fifteenth Affirmative Defense

Plaintiff is not entitled to statutory damages or attorney s fees under 17 U.S.C. §§ 504 and

505.

Sixteenth Affirmative Defense

Defendant has not infringed Plaintiff's rights, including its trademark rights and copyright 

rights, and has not engaged in unfair competition or otherwise harmed Plaintiff in any manner

expressly or implicitly alleged by Plaintiff in this action.

DEFENDANT S PRAYER

WHEREFORE, having fully answered, Defendant respectfully requests that the Court enter 

judgment in its favor and against Plaintiff; dismiss the Complaint in its entirety with prejudice;

award Defendant itstaxable costs, including reasonable attorney sfeesincurred herein; and grant it

such other and further relief as the Court deems just and proper in the circumstances.

DEFENDANT S COUNTERCLAIM

Defendant/Counterclaim Plaintiff Power Products,Inc. d/b/a Splintek ( Splintek ) bringsthis 

counterclaim against Plaintiff/Counterclaim Defendant Medtech ProductsInc. ( Medtech )seeking

a declaration that Medtech does not have any valid statutory or common law trademark rights in the 

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generic term NIGHTGUARD and that Splintek has not infringed any trademark rights that

Medtech may possess. In the alternative, Splintek seeks damages for Medtech s infringement of

Splintek s common law trademark rights and for Medtech s violation of the Lanham Act by use of 

false designation of origin in interstate commerce.

PARTIES

1. Defendant/Counterclaim Plaintiff Power Products, Inc. d/b/a Splintek ( Splintek ) is

a corporation organized and existing under the laws of Missouri with its principal place of business 

at 3325 Wyoming Street, Kansas City, Missouri 64068.

2. On information and belief, Plaintiff/Counterclaim Defendant Medtech Products Inc. 

( Medtech ) is a corporation organized and existing under the laws of Delaware with its principal 

place of business at 90 North Broadway, Irvington, New York 10533.

JURISDICTION AND VENUE

3. The Court has jurisdiction under 28 U.S.C. §§ 1331, 1338, 1367, 2201 and 2202. Moreover, Medtech has consented to the Court s exercise of personal jurisdiction over it by filing its

action in this Court.

4. Venue in this District is proper under 28 U.S.C. §§ 1391 and 1400.

COUNT I

(Non-existence and Non-Infringement of Medtech s Alleged

Federal and Common Law Trademark Rights)

5. Splintek hereby incorporates the allegations in paragraphs 1 through 4 of its

Counterclaim as if expressly stated herein.

6. A real and actual controvery exists between these parties in that Medtech claims to be 

the owner of certain trademark rightsin the term NIGHTGUARD and has applied to registersame

with the United States Patent & Trademark Office ( USPTO ) through the filing of US Trademark

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Application Serial Number 77/056,556. The USPTO responded to Medtech s application with a

rejection premised, inter alia, on the ground that the term is commonly descriptive of the device to 

which applied (a dental protector used at night) and provided examples of widespread use of

nightguard in this common descriptive fashion.

7. Medtech possesses no rights in the term nightguard because this term is generic, commonly descriptive, incapable of acquiring trademark significance, and/or in the public domain.

8. Splintek is entitled to a declaration that Medtech does not possess any of the

trademark rights to which it claims rights of ownership, that nightguard is generic, commonly

descriptive, incapable of acquiring trademark significance, and/or in the public domain, and that

Splintek has not infringed any Medtech trademark rights or trade dress rights asserted by Medtech in 

the Complaint.

COUNT II

(Medtech s Infringement of Splintek s Common Law Trademark Rights)

9. Since at least 1998, Defendant has used the mark NIGHTGUARD in connection with 

its night guard products.

10. Defendant has priority of use, and the right to exclude Plaintiff and all others from 

using the trademark NIGHTGUARD , in any and all areasin which Defendant wasthe first to use

this mark in connection with sales of a night guard product.

11. On information and belief, Medtech has used the trademark NIGHTGUARD in

connection with its sales of its night guard product throughout the United States, including in the

areas where Splintek has priority of use and the right to exclude Medtech from such use.

12. On information and belief, Medtech used the trademark NIGHTGUARD in a

manner likely to cause confusion among relevant consumers in areas in which Defendant has priority 

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of use and violated 15 U.S.C. § 1125(a) in that Medtech has used in connection with goods and

services a false designation of origin, a false or misleading description in order to cause mistake and 

to deceive asto the affiliation, connection or association of Medtech s products with Splintek, and as 

to the origin, sponsorship, and approval of Medtech s goods, services and commercial activities by 

Splintek.

13. Through such use, Medtech has thereby infringed Splintek s trademark rights and

engaged in unfair competition under the Lanham Act and in violation of 15 U.S.C. § 1125(a). 14. As a result of such conduct, Splintek has been injured. Medtech s conduct has

damaged Splintek in an amount to be determined at trial, including, on information and belief, lost 

sales, revenues and profits.

COUNTERCLAIMANT S PRAYER FOR RELIEF

WHEREFORE, Splintek respectfully requests that the Court enter:

A. A declaratory judgment in Splintek s favor and against Medtech declaring that the 

term nightguard is generic, commonly descriptive and otherwise incapable of acquiring or

possessing any trademark significance, whether under Federal or common law; and

B. A declaratory judgment in Splintek s favor and against Medtech declaring that

Splintek has not infringed any Medtech trademark rights or trade dress rights asserted by Medtech in 

its Complaint in this action and that the acts taken by Splintek do not constitute unfair competition 

under the Lanham Act, 15 U.S.C. § 1125(a); or, in the alternative

C. A judgment awarding Splintek its actual damagesfrom Medtech sinfringement ofits

trademark rights in areas where Splintek has priority of use in the mark NIGHTGUARD in an

amount to be determined at trial and to the full extent authorized by 15 U.S.C. §§ 1117 or the

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common law, or awarding Splintek statutory damages in the maximum amount permitted by law, and awarding Splintek its taxable costs and reasonable attorney s fees. Respectfully submitted,

KIRKPATRICK & LOCKHART PRESTON 

GATES ELLIS LLP

/s/______________________________ Kathy Dutton Helmer (9571)

Anthony P. La Rocco (APL 5986)

One Newark Center 

Newark, New Jersey 07102 

Telephone:(973) 848-4000 

Facsimile: (973) 848-4001

E-Mail: anthony.larocco@klgates.com

 kathy.helmer@klgates.com

ATTORNEYS FOR DEFENDANT POWER

PRODUCTS, INC.

OF COUNSEL:

SPENCER FANE BRITT & BROWNE LLP

Barry L. Pickens

1000 Walnut, Suite 1400

Kansas City, MO 64106

Telephone: (816) 474-8100

Facsimile: (816) 474-3216

E-Mail: bpickens@spencerfane.com

CERTIFICATE OF SERVICE

I hereby certify that on this ___ of ___, 2007, I caused a copy of the foregoing document to 

be served by electronic filing upon the following: 

Karl Geercken (KG 5897)

ALSTON & BIRD LLP

90 Park Avenue

New York, NY 10016-1387

ATTORNEY FOR PLAINTIFF

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