UNITED STATES DISTRICT COURT

DISTRICT OF MASSACHUSETTS

HASBRO, INC.,

Plaintiff,

CLUE COMPUTING, INC.,

Defendant.

Civil Action No. 97-10065DPW

DEFENDANT'S ANSWER, COUNTERCLAIM AND JURY DEMAND

The defendant Clue Computing, Inc. ("Clue") hereby respectfully submits its Answer to the Complaint of the plaintiff Hasbro, Inc. ("Hasbro"), together with Clue's Counterclaim Against Hasbro and its claim for a trial by jury.

ANSWER

For its; Answer, Clue states as follows:

First Defense

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

Second Defense

With respect to the numbered paragraphs of the Complaint, Clue answers as follows:

1. Clue is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph I of the Complaint.

2. Clue admits the allegations set forth in the first sentence of paragraph 2 of the Complaint and otherwise denies the allegations set forth in said paragraph.

3. Clue admits the allegations set forth in paragraph 3 of the Complaint.

4. Clue denies the allegations set forth in paragraph 4 of the Complaint,

5. Clue is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 5 of the Complaint.

6. Clue is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 6 of the Complaint.:

7. Clue is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 7 of the Complaint.

8. Clue is without knowledge or information sufficient to form a belief as to the truth of the allegations set forth in paragraph 8 of the Complaint.

9. Clue denies the allegations set forth in paragraph 9 of the Complaint.

10. Clue admits the allegations set forth in the first sentence of paragraph 10 of the Complaint and otherwise denies the allegations set forth in said paragraph.

11. Clue denies the allegations set forth in paragraph 11 of the Complaint.

12. Clue denies the allegations set forth in paragraph 12 of the Complaint.

13. Clue hereby repeats and incorporates by reference the averments set forth above.

14. Clue denies the allegations set forth in paragraph 14 of the Complaint.

15. Clue denies the allegations set forth in paragraph 15 of the Complaint.

16. Clue denies the allegations set forth in paragraph 1 6 of the Complaint.

17. Clue hereby repeats and incorporates by reference the averments set forth above.

18. Clue denies the allegations set forth in paragraph 1 8 of the Complaint.

19. Clue denies the allegations set forth in paragraph 19 of the Complaint.

20. Clue denies the allegations set forth in paragraph 20 of the Complaint.

Third Defense

The Complaint should be dismissed because this Court locks personal jurisdiction over Clue.

Fourth Defense

The Complaint should be dismissed because venue is improper.

Fifth Defense

The Complaint should be dismissed because service of process was insufficient.

Sixth Defense

The Complaint should be dismissed because of the applicable statute of limitations.

Seventh Defense

The Complaint should be dismissed because of the doctrines of laches and estoppel.

Eighth Defense

The Complaint should be dismissed because Hasbro comes to this Court with unclean hands.

COUNTERCLAIM

For its Counterclaim, Clue states as follows:

Plaintiff-in-counterclaim Clue Computing, Inc. ("Clue') is a Colorado corporation having its principal place of business in Longmont, Colorado.

2. Defendant-in-counterclaim Hasbro, Inc. ("Hasbro") is a Rhode Island corporation having its principal place of business in Pawtucket Rhode Island,

3. This Court has jurisdiction over this action pursuant to 2 8 U. S.C. § 13 3 8 and 1-5 U.S.C. § 112-1, in that this counterclaim arises out of the Lanham Act, 15 U.S.C. §§ 1051-1127,3 This Court has jurisdiction over the state law claim under the doctrine of pendent jurisdiction.

4. On June 1, 1994 Eric Robison and one other individual registered the name "Clue Computing" with the Secretary of State of Colorado as the business name of their partnership.

5. Mr. Robison assumed sole ownership of the business in October 1995 and incorporated it as "Clue Computing, Inc." under the laws of the State of Colorado on May 22, 1996. Both the corporation and the predecessor entity have engaged exclusively in the business .9 of computer consulting and providing Internet access to other persons and businesses, and both have conducted much of their business through the Internet, a worldwide network of computer through which computer users exchange electronic mail and access information located at various "web sites."

6. Mr. Robison applied to register the domain name "clue.com" in early June 1994, upon commencing business as Clue Computing. The application was approved on June 11), 1 94 by Network Solutions, inc. ("NSI") a District of Columbia corporation under contract with the National Science Foundation to provide domain name registration services.

7. By letter dated January 26, 1996, Hasbro demanded that, pursuant to NSI’s dispute policy, NSI require Clue Computing to prove that its domain name did not domain name infringe Hasbro's trademark for the "Clue" board game.

8. By letter dated February 1, 1996, NSI informed Clue Computing that it would be barred from continuing to use the domain name if it could not produce a federally registered trademark for the domain name. Had this occurred Clue Computing would have lost its web site and its e-mail communication. Mr. Robison sought unsuccessfully to negotiate a resolution With Hasbro and NSI.

9. On June 13, 1996, facing the imminent loss of the domain name which was Clue's chief means of advertising and communication and in which Clue and its predecessor had established considerable good will, Clue filed suit in state court in Colorado to enjoin NSI from interfering with Clue's use of its domain name.

10. On June 2 8, 1996 the court issued a preliminary injunction 'unction forbidding NSI from making "any change to the registration and use of the 'clue.com' domain name until permitted do so by further order of this Court." That injunction remains in effect and the action is pending as Clue Computing Inc. v. Network Solutions, Inc., Case No. 96; CV-694., Division 5, District Court, Boulder County, Colorado,

11. On June 21, 1996 NSI brought an interpleader action against both Clue and Hasbro in the U.S. District Court for the District of Colorado docketed as Civil Action No. 96-~1530. Both defendants moved to dismiss, and the court granted dismissal on the ground that NSI I had not "deposited ... into the registry of the court" the domain name in question, as it would have to do under 28 U.S.C. § 1335 in order to invoke the court's interpleader jurisdiction. Network Solutions, Inc. v, Clue Computing Inc. and Hasbro, Inc. 41 U.S.P.Q.2d 1062 (D. Colo.1996).

12. On or about January 10, 1997 Hasbro commenced this action against Clue, alleging infringement and dilution under federal and Massachusetts trademark statutes.

13. Despite the facts that (a) the word "clue" is a common noun, (b) Clue's computer consulting and Internet access business is wholly unrelated to board games, and (c) Hasbro's trademark relates solely to a board game, Hasbro contends in this action that Clue's use of the "clue.com" domain name has caused and will continue to cause confusion as to "the affiliation, connection or association of [Clue's] Internet site with Hasbro, or as to Hasbro's sponsorship or approval of [Clue's] business or Internet site.

Count I

Misuse of Registration

14. Clue repeats and realleges the allegations set forth above in this Counterclaim

15. Hasbro has misused its trademark registration by attempting to extend the scope of protection of that registration to encompass Clue's use of the "clue.com" domain name,

16. Clue provides computer consulting and Internet access services. These services are not related to the goods and services that Hasbro offers under! its "Clue" registered trademark, to wit, the board game "Clue."

17. Consumers are not likely to be confused by Hasbro's use of its "Clue" registered trademark in connection with a board game and Clue's use of the "clue.com" domain name in connection with its computer consulting and Internet access services.

18. In petitioning NSI to apply its domain name dispute policy to Clue's use of the "clue.com" domain name, Hasbro attempted to deprive Clue of the use of its domain name on the basis of its trademark registration, which is unrelated to the services offered by Clue. Hasbro's actions offend public policy and constitute trademark misuse.

19. Hasbro's acts of trademark misuse are causing injury and damage to Clue in an amount to be determined at trial.

20. Hasbro's acts of trademark misuse are causing or will cause irreparable harm for which Clue has no adequate remedy at law.

Count II

Declaratory Judgment

21. Clue repeats and realleges the allegations set forth above in this Counterclaim.

22. An actual controversy exists between the parties whether Clue's use of the "clue.com" domain name infringes or dilutes the distinctiveness of Hasbro's "Clue" trademark

23. Clue requests this Court to declare that Clue's use of the "clue.com" domain name in connection with its advertising, operation and maintenance of an Internet site does not violate any federal or state trademark rights of Hasbro.

Count III

Interference With Contractual Relations

24. Clue repeats and realleges the allegations set forth above in this Counterclaim

25. On or before January 26, 1996, Hasbro knew that a contractual relationship existed between Clue and NSI.

26. Hasbro knew that by invoking NSI's domain main' dispute policy it would cause NSI to deprive Clue of the domain name that it had contracted With NSI to register.

27. Hasbro also knew that Clue had contractual relations with other entities for which Clue provided Internet access services, and that those relations would be disrupted if Clue lost it’s domain name.:

28. Hasbro's actions constitute intentional interference with Clue’s contractual relations and means.

29. Hasbro's interference with Clue's contractual relations was improper in motive

30. Clue has. suffered damage from Hasbro's interference with its contractual relations in an amount to be determined at trial.

JURY CLAIM

Pursuant to Fed, R. Civ. P. 3 8, Clue respectfully demands a trial by jury of all issues so triable,

WHEREFORE, Clue respectfully asks that this Court enter judgment as follows:

1. Dismissing the Complaint against Clue with prejudice;

2. Ordering that Hasbro, its agents, employees and attorneys, and those persons in active concert with them, be permanently enjoined and restrained from taking any action to prevent Clue from, or hinder Clue in, advertising, operating and maintaining an Internet site with the domain name "clue.com" or otherwise from using the name "Clue" in connection with its computer consulting and Internet access services;

3. Awarding Clue its actual damages plus interest an d costs under Count I of the Counterclaim

4. Declaring under Count II of the Counterclaim that Clue's use of the "clue.com" domain name in connection with its advertising, operation and maintenance of an Internet site does not violate any federal or state trademark rights of Hasbro;

5. Awarding Clue its actual damages plus interest an d costs under Count III

6. Awarding Clue its reasonable attorney's fees

7. Awarding Clue punitive damages in an amount to be determined at trial; and

8. Granting Clue such other and further relief as may be just and appropriate by the court.

By its attorney,

Dated: August 29, 1997

Thomas A. Mullen, P.C

4 Avon Street

Wakefield, Massachusetts 0 1880

(61:7) 245-2284

BBO No. 3603 15

Certificate of Service

The undersigned hereby certifies that on August 29, 1997 he caused a true copy of the foregoing Defendant's Answer, Counterclaim and Jury Demand. to be served by first class mail, on counsel for all parties so represented

postage prepaid

Thomas A. Mullen, P.C.