In the last update of Canon v. Gray Market Retailers, a New York company whose name is also “F & E Trading, LLC” responded to Canon’s Amended Complaint. In this latest response, it appears that some of the procedural confusion has been sorted out based on the content of this Answer in the context of the rest of the court docket.
In short, it appears that F & E Trading, LLC used to do business as a New York LLC. In 2010, that company, which sold the gray market goods in question, moved its operations to New Jersey and formed a New Jersey, LLC. At some point after that company moved to New Jersey, another company (which may or may not be somehow related) started operating in New York under the name F & E Trading, LLC.
And so, it appears that the company Canon USA is really after is the current New Jersey company, F & E Trading, LLC (“F&E NJ”). It’s always a good idea to get the right defendant. We’ll see if Canon ends up dismissing its complaint against the NY company shortly….
In terms of the meat of the F&E NJ’s response, it largely mirrors what we saw by Get It Digital’s response in its prior Answer. Other than essentially denying all wrongdoing, F&E NJ also cites the following defenses:
- Lack of personal jurisdiction (a procedural pre-requisite to suing a person or company)
- Failure to state a claim upon which relief can be granted (That is, even if everything Canon says were taken as true, none of it alleges a wrongdoing that Canon can sue F&E NJ for.)
- First sale doctrine
- Doctrines of laches, acquiescence and unclean hands
- Doctrines of waiver and estoppel
We covered the first sale doctrine, laches and estoppel in the article on Get It Digital’s response, so read it again if you want a refresher. Notably, we see the reference to unclean hands raised again.
It was briefly mentioned in Get It Digital’s answer with some facts that look bad for Canon. Specifically, Get It Digital alleged that “Canon USA, Inc. was aware that [Get It Digital] openly and notoriously resold goods bearing the Canon mark that they had purchased from Canon authorized dealers.” And that Canon “actively condoned the resale and transshipment of Canon-branded products from Canon authorized dealers to other resellers.”
These are some pretty juicy facts that could be a problem for Canon as this case moves forward. We’ll look toward upcoming motions for summary judgment, which should include affidavits and deposition references to these facts.
What About Albert Houllou?
Recall that Albert Houllou was a key target in Canon’s Amended complaint against F&E NJ. Houllou appears to be the principal owner/operator of F & E Trading. Canon USA wants to cut off the head, so it named him individually in the lawsuit. This is a common tactic that we previously covered.
Houllou never filed an official response to the lawsuit. Instead, because of the timing of Canon’s Amended Complaint that targeted Houllou, his attorneys wrote the court a letter requesting more time to respond with a motion to dismiss him from the lawsuit since Canon should be targeting the company and not the individual.
The judge granted Houllou’s request and is allowing his attorneys to file his motion to dismiss. Houllou’s attorneys have a solid argument as to why he should not be part of this case absent further and more specific allegations by Canon USA of Houllou’s wrongdoing.
This is a critical first battle for F&E NJ and Houllou. If Canon can keep his head on the chopping block, the stakes are so much higher (especially if he is, in fact, the CEO and primary owner of F&E NJ) and the pressure to settle is further magnified.
You can read the full court documents of F&E NJ’s Answer and Hollou’s attorney’s letter embedded below. Additionally, you can catch up here on the other case updates and read more background on gray market cameras.