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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 13-CIV-20830-COOKE/TURNOFF THE KEITH HARING FOUNDATION, INC., Plaintiff, vs. COLORED THUMB CORP. and MICHAEL ROSEN, Defendants. PLAINTIFFS MOTION TO STRIKE AFFIRMATIVE DEFENSES Plaintiff THE KEITH HARING FOUNDATION, INC. (the Haring Foundation) moves, under Rule 12(f) of the Federal Rules of Civil Procedure, to strike the affirmative defenses asserted in the Answer and Affirmative Defenses (D.E. 25) filed by Defendants COLORED THUMB CORP. and MICHAEL ROSEN (Defendants) and states: INTRODUCTION This case involves the Haring Miami art show in which the Defendants promoted and displayed counterfeit art purportedly painted by Keith Haring, the prominent American artist and social activist. The Haring Foundation, the owner of virtually all intellectual property rights relating to Keith Haring, filed a six count complaint asserting causes of action for trademark infringement, trademark dilution, copyright infringement, false advertising, cybersquatting, and false designation of origin and sought injunctive and monetary relief. On May 31, 2013, the Defendants answered and asserted 18 affirmative defenses. The Defendants affirmative defenses, however, are insufficient as a matter of law and should be stricken under Rule 12(f).

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ARGUMENT Federal Rule of Civil Procedure 12(f) provides that the court may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter. In Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), the Supreme Court created a heightened pleading standard for allegations asserted in civil litigation in federal courts. The majority of district courts nationwide including this district have applied the heightened pleading standard from Twombly and Iqbal to affirmative defenses. See Castillo v. Roche Laboratories Inc., 2010 WL 3027726, at *2 (S.D. Fla. Aug. 2, 2010) (noting that a majority of lower courts have applied the Iqbal/Twombly pleading standard to affirmative defenses); Home Mgmt. Solutions, Inc. v. Prescient, Inc., 2007 WL 2412834, at *3 (S.D. Fla. Aug. 21, 2007) (Without some factual allegation in the affirmative defense, it is hard to see how a defendant could satisfy the requirement of providing not only fair notice of the nature of the defense, but also grounds' on which the defense rests.) (brackets omitted) (quoting Twombly, 550 U.S. at 556 n. 3). Thus, affirmative defenses that assert mere conclusions without a factual basis are properly stricken. Nash v. O.R. Colan Group, LLC, 2012 WL 4338817, at *1 (S.D. Fla. Sept. 20, 2012) (An affirmative defense must be stricken when the defense comprises no more than bare-bones, conclusory allegations.). Here, while Defendants have asserted 18 affirmative defenses, all of these defenses are conclusory and none contain factual support. For example, in Affirmative Defense No. 1, Defendants allege that [t]he claims made in the Complaint are barred, in whole or in part, by the doctrines of fair use, nominative fair use and/or descriptive use. (D.E. 25 at 5.) But Defendants fail to identify any facts to support how or why the doctrines of fair use, nominative fair use, or descriptive use operate to bar the Haring Foundations claims or how those doctrines even

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apply in these circumstances. Similarly, in Affirmative Defense No. 2, Defendants maintain that [t]he claims made in the Complaint are barred, in whole or in part, by the First Amendment right to free speech because the alleged use of the alleged marks was artistic, or non-commercial in nature. (D.E. 25 at 5.) Again, Defendants neglect to allege any facts to support their conclusion. Defendants Affirmative Defenses Nos. 3 through 18 suffer from this same fatal defect. In addition, many of the allegations labeled affirmative defenses specifically, Affirmative Defenses Nos. 3, 6-11, 13, and 15 are not affirmative defenses at all, but rather mere denials. See Sace BT S.p.A. v. Italkitchen Intern., Inc., 2012 WL 37391, at *2 (S.D. Fla. Jan. 6, 2012) (OSullivan, Mag. J.) (If an affirmative defense points out a defect in the prima facie case of a plaintiff, that affirmative defense is not actually an affirmative defense, it is a denial.); Zeron v. C & C Drywall Corp., Inc., 2009 WL 2461771, at *2 (S.D. Fla. Aug. 10, 2009). These defenses should be stricken for this reason as well. See Zeron, 2009 WL 2461771, at *2-*5 (granting plaintiffs motion to strike certain affirmative defenses and treating those defenses as denials). CONCLUSION For the reasons set forth above, Plaintiff respectfully requests this Court to enter an order striking the affirmative defenses asserted in Defendants Answer and Affirmative Defenses (D.E. 25). A proposed order granting the relief sought is attached as Exhibit A. CERTIFICATION PURSUANT TO S.D. FLA. L.R. 7.1.A.3 Plaintiffs counsel hereby certifies that he conferred with counsel for Defendants in a good faith effort to resolve the issues raised herein, and Defendants counsel advised Plaintiffs counsel on June 21, 2013, that Defendants are continuing to evaluate the relief being sought and

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that Defendants will advise Plaintiff and the Court as to whether they intend to oppose the Motion before Defendants response to the Motion is due. Date: June 21, 2013 Respectfully submitted, PROSKAUER ROSE LLP Attorneys for Plaintiff 2255 Glades Road, Suite 421 Atrium Boca Raton, Florida 33431 Telephone: (561) 241-7400 Facsimile: (561) 241-7145 /s/ Andrew Thomson Matthew Triggs Florida Bar No. 865745 mtriggs@proskauer.com Andrew B. Thomson Florida Bar No. 057672 athomson@proskauer.com - and Sarah S. Gold (admitted pro hac vice) Margaret A. Dale (admitted pro hac vice) PROSKAUER ROSE LLP 11 Times Square New York, NY 10036 Telephone: (212) 969-3000 Facsimile: (212) 969-2900

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CERTIFICATE OF SERVICE I hereby certify that on June 21, 2013, I electronically filed the foregoing document with the Clerk of the Court using CM/ECF. I also certify that the foregoing document is being served this day on all counsel of record or pro se parties identified on the attached Service List in the manner specified, either via transmission of Notices of Electronic Filing generated by CM/ECF or in some other authorized manner for those counsel or parties who are not authorized to receive electronically Notices of Electronic Filing. /s/ Andrew Thomson Andrew B. Thomson

SERVICE LIST CASE NO. 13-CIV-20830-COOKE Robert J. Borrello, Esq. Herman J. Russomanno, III, Esq. RUSSOMANNO & BORRELLO, P.A. Museum Tower, Penthouse 2800 150 West Flagler Street Miami, Florida 33130 Telephone: (305) 373-2101 Facsimile: (305) 373-2103 Via Notice of Electronic Filing

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EXHIBIT A

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UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF FLORIDA CASE NO. 13-CIV-20830-COOKE/TURNOFF THE KEITH HARING FOUNDATION, INC., Plaintiff, vs. COLORED THUMB CORP. and MICHAEL ROSEN, Defendants. _____________________________________/ ORDER GRANTING PLAINTIFFS MOTION TO STRIKE AFFIRMATIVE DEFENSES THIS MATTER is before the Court on the Plaintiff THE KEITH HARING FOUNDATION, INC.s Motion to Strike Affirmative Defenses (D.E. 28) filed on June 21, 2013 (the Motion). The Court, having reviewed the Motion and being otherwise fully advised in the premises, hereby ORDERS AND ADJUDGES as follows: The Motion is GRANTED. The affirmative defenses asserted in Defendants Answer and Affirmative Defenses (D.E. 25) are hereby stricken under Rule 12(f) of the Federal Rules of Civil Procedure. DONE and ORDERED in Miami, Florida this ______day of _______________, 2013.

_______________________________________ MARCIA G. COOKE UNITED STATES DISTRICT JUDGE Copies provided to: William C. Turnoff, U.S. Magistrate Judge Counsel of record