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UNITED STATES DISTRICT COURT EASTERN DISTRICT OF MICHIGAN SOUTHERN DIVISION ______________________________________________________________________________ BRIAN MASCK, Case No. 2:13-cv-10226 Plaintiff, District Judge Gershwin A. Drain v. Magistrate Judge David R. Grand SPORTS ILLUSTRATED; NISSAN NORTH AMERICA; GETTY IMAGES, INC.; CHAMPIONS PRESS, L.L.C.; DESMOND HOWARD; PHOTO FILE, INC.; FATHEAD, L.L.C.; WAL-MART STORES, INC.; WALMART.COM USA, L.L.C.; and AMAZON.COM, INC., Defendants.

DEFENDANT DESMOND HOWARD'S ANSWER TO COMPLAINT, AFFIRMATIVE DEFENSES, COUNTERCLAIM, AND JURY DEMAND ANSWER Defendant/Counter- Plaintiff, Desmond Howard ("Howard"), by and through his counsel, Varnum LLP, as and for his Answer to Complaint of Plaintiff/Counter-Defendant, Brian Masck ("Masck"), using the same numbered paragraphs, states as follows: 1-6. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. 7. Based upon information and belief, Howard admits the allegations (except that

Champion Press is a Michigan LLC). 8. Howard admits the allegations.

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9.

Howard admits that he owns the website DesmondHoward.com. Howard denies

that he operates, maintains, and controls the website and further denies that he supervises and controls all information contained on the website. 10-17. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 18. Howard admits that this Court has original jurisdiction as to Masck's claims under

the Copyright Act and Lanham Act. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 19. Howard admits that this Court has supplemental jurisdiction, but, furthering

answering, denies that any of Masck's claims that are based on supplemental jurisdiction are valid or otherwise state a claim. 20-21. Howard admits that venue is proper in this Court. As to any remaining or

inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 22-23. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 24-25. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. Further answering, Howard denies he has any liability to Masck for any reason. 26-40. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations.

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41.

Howard admits that he played high school sports in Cleveland and came to the

University of Michigan to play college football. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 4245. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 46. Howard admits that, before 1991, only one University of Michigan football player

(Tom Harmon in 1940) had won the Heisman Trophy. Howard further admits that under coach Gary Moeller, the 1991 Wolverines were undefeated in the Big Ten. Howard admits that he was a football player at the University of Michigan in 1991. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 47. Howard admits generally that he was a football player at the University of

Michigan in 1991. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 48-51. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 52. Howard denies that Masck facilitated Howard's persona or had anything to do

with the fame or success of Howard. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 53. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. 54-55. Howard admits he scored a touchdown against Ohio State on a punt return

in the second quarter of the game. Howard further admits those allegations which can be

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corroborated by contemporaneous television coverage of the touchdown. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 56. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. 57. Howard denies that the photograph alleged to have been taken by Masck is the

only shot of the event. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 58-68. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 61.(sic)-62.(sic) Howard is without knowledge or information sufficient to form a

belief as to the truth of the allegations. 69.-70. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 71. 1992. Howard admits that Masck did not register the copyright in the photograph in

As to any remaining or inconsistent allegations, Howard is without knowledge or

information sufficient to form a belief as to their truth. 72. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. 73. Howard admits generally that Masck expected to capitalize on the value of As to any remaining or inconsistent allegations, Howard is without

Howard's persona.

knowledge or information sufficient to form a belief as to their truth.

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74-75.

Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 76-78. 79-85. Upon information and belief, Howard admits the allegations. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 86. Howard denies that the alleged inaccurate credits are unlawful for the reason that

such allegations are, as a matter of law, meritless legal conclusions. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 87-94. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 95. Howard admits that Masck first contacted him and Ward Headley ("Headley"),

president of Direct Sportslink, Howard's representation in connection with speaking engagements, appearances, and endorsements originating from his official website, DesmondHoward.com, on or about August 1, 2011. Masck contacted them by sending an email to info@desmondhoward.com which Masck obtained through Howard's website, and stated that he wanted to discuss ways that he could work with Howard. Based upon information and belief, Howard further admits that: (a) the parties exchanged multiple emails and had telephone calls in August 2011; (b) Masck wanted Howard's public support in pursuing third-parties which Masck suspected of infringing his alleged copyright in the photograph; (c) Masck expressed interest in selling the photograph to Howard, in exchange for Howard's public support, after resolving his disputes with such third-parties; and (d) Headley asked Masck what he'd like in return for transferring the rights in the photograph to Howard. As to any remaining or inconsistent

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allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 96. Howard admits that he met with Masck in person on August 18, 2011 and that

they talked. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 97. 98. Howard admits the allegations. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. 99. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. 100. Howard admits that he and Masck, with their separate counsel participating, As to any remaining or inconsistent

spoke via telephone on or about August 31, 2011.

allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 101. Howard admits that the image following the allegation is an image of the banner

on the home page of his website, DesmondHoward.com, as it appeared from February 2010 to January 2013. Howard denies that Masck is entitled to compensation or credit in connection with the appearance of the photograph on the website or that he otherwise has any liability to Masck. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 102. Howard admits that the image, referenced in the allegation, was an image

appearing on the "bio" page of his website, DesmondHoward.com, as it appeared on January 2013, but which has since been removed. Howard denies that Masck is entitled to compensation

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or credit in connection with the appearance of the photograph on the website or that he otherwise has any liability to Masck for any reason. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 103. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. 104. Howard admits that in 2012 they continued their correspondence regarding

working together and a possible sale of the copyright in the photograph to Howard. Howard admits that Masck sent Headley a print of the photograph in August 2012, but denies that he requested the photograph. Howard admits that he did not purchase the copyright in the

photograph. Howard admits that he and Masck did not "partner" in any business venture for the reason that Masck consistently stated that he wanted to resolve his legal issues with his alleged third-party infringers before discussing any future business relationship with Howard. Howard admits that the photograph Masck sent to Howard in August 2012 briefly appeared on the website DesmondHoward.com starting in January 2013, but has since been removed. Howard denies that Masck is entitled to compensation or credit in connection with the appearance of the photograph on the website or that he otherwise has any liability to Masck. Further answering, Masck has improperly used Howard's persona in an unauthorized commercial way. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 105. Howard states that a section on the home page of the website advertises

"Desmond's Store" but denies that there are any immediate plans to launch the store. Howard denies that the store has any logo. The thumbnail image of a t-shirt appearing on the "Desmond's Store" section on the home page is an image of a third-party, promotional t-shirt. Howard denies

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that he has any liability to Masck for any reason. Howard denies that he is following any business plan suggested by Masck for the reason it is untrue. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 106-117. Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. 118. 119. 120. Howard denies the allegations for the reason that they are untrue. Howard denies the allegations for the reason that they are untrue. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. 121. Howard denies that the photograph appearing on his website increased visibility

of the website. As to any remaining or inconsistent allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 122. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. 123. Howard denies he has any liability to Masck. As to any remaining or inconsistent

allegations, Howard is without knowledge or information sufficient to form a belief as to their truth. 124. Howard is without knowledge or information sufficient to form a belief as to the

truth of the allegations. COUNT I 125. Howard incorporates by reference his answers to the allegations set forth above.

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126-139.

Howard is without knowledge or information sufficient to form a belief as

to the truth of the allegations. COUNT II 140. Howard incorporates by reference his answers to the allegations set forth above. Howard is without knowledge or information sufficient to form a belief as

141-153.

to the truth of the allegations. COUNT III 154. Howard incorporates by reference his answers to the allegations set forth above. Howard is without knowledge or information sufficient to form a

130(sic)-139.(sic)

belief as to the truth of the allegations. COUNT IV 140.(sic) above. 141(sic)-150.(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations. COUNT V 151.(sic) above. 152(sic)-161.(sic) Howard denies the allegations for the reason they are untrue. COUNT VI 162.(sic) above. Howard incorporates by reference his answers to the allegations set forth Howard incorporates by reference his answers to the allegations set forth

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163(sic)-172.(sic)

Howard is without knowledge or information sufficient to form a

belief as to the truth of the allegations. COUNT VII 173.(sic) above. 174(sic)-184.(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations. COUNT VIII 185.(sic) above. 186(sic)-199.(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations. COUNT IX 200.(sic) above. 201(sic)-211.(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations. COUNT X 212.(sic) above. 213(sic)-220.(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations.

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COUNT XI 221.(sic) above. 222(sic)-228.(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations. COUNT XII 229.(sic) above. 230.(sic)-236.(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations. COUNT XIII 237.(sic) above. 238(sic)-246(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations. COUNT 14 247.(sic) above. 248(sic)-255.(sic) Howard denies the allegations for the reason they are untrue. COUNT XV 256.(sic) above. Howard incorporates by reference his answers to the allegations set forth Howard incorporates by reference his answers to the allegations set forth

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257(sic)-265.(sic)

Howard is without knowledge or information sufficient to form a

belief as to the truth of the allegations. COUNT 16 266.(sic) above. 267(sic)-275.(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations. COUNT 17 276.(sic) above. 277(sic)-280.(sic) Howard denies the allegations for the reason they are untrue. COUNT XVIII 281.(sic) above. 282(sic)-292.(sic) Howard is without knowledge or information sufficient to form a Howard incorporates by reference his answers to the allegations set forth Howard incorporates by reference his answers to the allegations set forth

belief as to the truth of the allegations. COUNT XIX 293.(sic) above. 294(sic)-298.(sic) Howard denies the allegations for the reason they are untrue. COUNT XX 299.(sic) above. Howard incorporates by reference his answers to the allegations set forth Howard incorporates by reference his answers to the allegations set forth

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300(sic)-304.(sic)

Howard denies the allegations for the reason they are untrue.

WHEREFORE, Howard respectfully asks this Court to dismiss Plaintiffs Complaint with prejudice, with costs and attorneys' fees to be awarded to Howard as allowed by law. Furthermore, Howard asks for entry of a judgment in his favor and against Counter-Defendant Masck in whatever amount in excess of $75,000.00 he is found liable, plus interest, costs and attorneys' fees as allowed by law.

AFFIRMATIVE DEFENSES In the defense against this Complaint, Howard may, but not necessarily will, rely upon the following affirmative defenses: 1. Failure to state a claim. Masck has failed to state a claim against Howard upon

which relief can be granted. Without limiting the generality of the foregoing, for the reasons stated in Howard's motion to dismiss, filed contemporaneously herewith, Masck has failed to state a claim against Howard for violations of the Michigan Consumer Protection Act and Lanham Act, unjust enrichment, and for statutory damages and attorney's fees under the Copyright Act. 2. Implied and/or express license. Objective evidence exists to conclude that an

agreement existed regarding the authorized appearance of the photograph on the website, DesmondHoward.com. Masck's claims against Howard are barred in whole or in part by the actions and conduct of the parties which conclude that the parties reached an agreement concerning such authorized use. 3. Fair use. The appearance of the photograph on the website is not an infringement

under the doctrine of fair use.

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4.

Laches. Masck has "slept on his rights"; Masck unreasonable delayed in pursuing

a claim, and this delay prejudiced Howard. Masck's claims are barred in whole or in part by his actions and conduct which bar his claims under the doctrine of laches. 5. Equitable estoppel. Masck's claims are barred in whole or in part by his actions

and conduct which bar his claims under the doctrine of equitable estoppel. 6. Waiver. Masck's claims are barred in whole or in part by his actions and conduct

that constitute a waiver of his claims. 7. Unclean hands. Masck's claims are barred in whole or in part by his actions and

conduct which bar his claims under the doctrine of unclean hands. 8. Failure to mitigate. Masck's claims are barred in whole or in part because Masck

failed to mitigate his damages. 9. Set-off. Masck is liable to Howard on Howard's Counterclaims against Masck in

an amount greater than any amount Howard could be found liable to Masck, which Howard expressly denies having any liability to Masck in any amount and for any reason. 10. Improper conduct. Masck's claims are barred in whole or in part as the result of

his own improper conduct, including his misappropriation of Howard's persona and violation of Howard's federally protected rights. 11. Misuse of Copyright. Masck misrepresents and seeks to extend his alleged rights

in the photograph beyond the scope of his alleged copyright in the photograph in violation of public policy. Masck's claims are barred in whole or in part by the doctrine of copyright misuse. 12. Secondary Liability. Masck has failed to state a claim for secondary liability

against Howard.

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13.

Reservation of Rights. Howard reserves the right to add to and/or amend these

Affirmative Defenses as discovery and trial preparation proceeds. WHEREFORE, Howard respectfully asks this Court to dismiss Plaintiffs Complaint with prejudice, with costs and attorneys' fees to be awarded to Howard as allowed by law. Furthermore, Howard asks for entry of a judgment in his favor and against Counter-Defendant Masck in whatever amount in excess of $75,000.00 he is found liable, plus interest, costs and attorneys' fees as allowed by law.

COUNTERCLAIM OF DEFENDANT/ COUNTER-PLAINTIFF DESMOND HOWARD Defendant/Counter-Plaintiff, Desmond Howard (either, "Desmond Howard" or "Mr. Howard"), through his attorneys, Varnum LLP, counterclaims against Plaintiff/CounterDefendant, Brian Masck ("Defendant"), as follows: NATURE OF THE ACTION 1. Desmond Howard brings this action against Defendant under state and federal law

for Defendant's unauthorized publication and use of Mr. Howard's name, image, and likeness, including, but not limited to, Defendant's prominent use of Mr. Howard's name in advertising, marketing, and promoting Defendant's products and services, use of Mr. Howard's image on commercial products for sale to consumers, and use of Mr. Howard's image and likeness as a trademark logo on Defendant's products. PARTIES 2. 3. Desmond Howard is an individual and resident of the State of Florida. Defendant is an individual and, upon information and belief, a resident of

Genesee County, State of Michigan. 15

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JURISDICTION AND VENUE 4. This Court has subject matter jurisdiction under 28 U.S.C. 1331 and 1332; this

Court has subject matter jurisdiction over the claims in this Complaint arising under the Lanham Act pursuant to 15 U.S.C. 1121 and 28 U.S.C. 1338, and various Federal common law principles. This Court has supplemental jurisdiction over Mr. Howard's state law claims

pursuant to 28 U.S.C. 1367(a). 5. Venue is proper in this Court pursuant to 28 U.S.C. 1391(a) and (b). GENERAL ALLEGATIONS 6. Desmond Howard is a sports legend and nationally-known broadcaster, most

recognized for his outstanding accomplishments as a collegiate and NFL football player and as an analyst for ESPN's College GameDay broadcast. 7. Desmond Howard won the Heisman Trophy in 1991 while playing football for the

University of Michigan. After being drafted fourth overall by the Washington Redskins in 1992, Mr. Howard played professional football in the NFL until 2002. He was voted the Most Valuable Player of Super Bowl XXXI and is the first and only special teams' player to win the award. He is one of only four players to win both the Heisman Trophy and Super Bowl MVP. On July 16, 2011, Mr. Howard was inducted into the College Football Hall of Fame. 8. As a result of his athletic accomplishments and broadcasting celebrity, Mr.

Howard's name, image, and persona have significant value. He is sought after for corporate endorsements, personal appearances, and speaking engagements by prominent national and multinational corporations, and has selectively licensed his name, image, and likeness for a variety of commercial products, including video games, posters, and t-shirts.

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9.

Defendant is an individual who owns and operates the commercial website

TheTrophyPose.com, on which Defendant prominently uses Desmond Howard's name as the name of his website. 10. As appearing in Internet search engine results, the title tag for Defendant's website

reads, "Desmond Howard | Heisman Pose Photo | 1991 by Brian Masck." The banner of the homepage of the website reads, "Desmond Howard Trophy Pose," and underneath it, "The Famous 'Heisman Pose' Moment 1991 by Brian Masck." 11. The website also includes a newsfeed of "Desmond Howards Latest Tweets" and

a link to Mr. Howard's own website, DesmondHoward.com. 12. Through his website, Defendant sells products featuring Mr. Howard's image

including framed and unframed prints, float-wrap prints, and life-size, cut-out standups. The website announces, "More products are coming." 13. Defendant has also appropriated Mr. Howard's image and likeness as a trademark,

which Defendant prominently displays on his products. A copy of one of Defendant's prints featuring the trademark, in the bottom right corner, and an enhancement of that trademark follow:

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14.

The trademark is the silhouette of Mr. Howard's image as he appears in the print.

Defendant has placed the symbol "TM" next to the logo, which is used to indicate an assertion that the preceding mark is a trademark. 15. Defendant also maintains a Facebook "page" called "Desmond Howard's 'Trophy

Pose' 1991 Photo by Brian Masck," on which he displays Mr. Howard's name, image, and likeness, including prominent display of Defendant's trademark featuring the silhouette image of Mr. Howard. 16. Defendant's Facebook page states that it is "dedicated to University of Michigan

Heisman Trophy winner Desmond Howard's famous 'Trophy Pose' moment captured 1991 by Brian Masck," and allows Facebook users to "like" or subscribe to the page posts and updates. 17. Defendant uses his Facebook page to advertise and promote his

TheTrophyPose.com website by encouraging subscribers to the Facebook page to visit Defendant's website where they can purchase Defendant's products featuring Desmond Howard's image for sale on the site. 18. Defendant did not ask for or receive Mr. Howard's permission to use his name,

image, and likeness: (a) on Defendant's website and Facebook page, or otherwise for purposes of selling Defendant's products and services, (b) on Defendant's commercial products for resale to consumers, or (c) as Defendant's trademark on his products. 19. Accordingly, Defendant is liable to Mr. Howard for, among other claims,

violation of his rights of publicity and privacy under Florida law and for violations under the Lanham Act for false association and advertising. 20. Desmond Howard seeks compensatory damages, treble damages, punitive

damages, and a preliminary and permanent injunction to stop all further unlawful use and

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exploitation of Mr. Howard's name, image, and likeness in connection with Defendant's advertising, products and services, and trademark. COUNT I (Misappropriation of Name and Likeness -- Fl. St. 540.08) 21. 22. Mr. Howard incorporates by reference the allegations in the preceding paragraphs. Defendant published, printed, displayed or otherwise publicly used Mr. Howard's

name, image and likeness, without his express written or oral consent, for purposes of trade or for other commercial or advertising purposes. 23. Among other things, Defendant has publicly: (a) used Mr. Howard's name for the purpose of promoting and advertising

Defendant's products and services, including, without limitation, on Defendant's website and Facebook page; (b) used Mr. Howard's image on Defendant's products, including, without

limitation, framed and unframed prints, float-wrap prints, and life-size, cut-out standups; and (c) 24. 25. used Mr. Howard's image and likeness as a trademark.

The unlawful conduct of Defendant, as alleged herein, has damaged Mr. Howard. Defendant had actual knowledge of the wrongfulness of his conduct and of the

high probability that injury or damage to Mr. Howard would result and, despite that knowledge, intentionally pursued his course of conduct resulting in injury or damage to Mr. Howard. In the alternative, and even if he acted without such actual knowledge, the conduct of Defendant was so reckless or wanting in care that it constituted a conscious disregard for or indifference to the rights of Mr. Howard.

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26.

The unlawful conduct of Defendant, as alleged herein, constitutes a violation of

Fl. Stat. 540.08, entitling Mr. Howard to enjoin such conduct, and to recover damages for any loss or injury sustained by reason thereof, including an amount which would have been a reasonable royalty, and punitive and exemplary damages. COUNT II (Unfair Competition Lanham Act, 15 U.S.C. 1125(a)) 27. 28. Mr. Howard incorporates by reference the allegations in the preceding paragraphs. Defendant's use, and continuing use, in interstate commerce of Mr. Howard's

name, image, and likeness in connection with Defendant and his good and services constitutes a violation of 15 U.S.C. 1125(a), in that it creates a false association between Mr. Howard and Defendant and his good and services, and a false designation of origin as to the goods and services advertised, marketed, promoted, distributed, offered for sale, and sold by Defendant. Defendant's use of Mr. Howard's name, image, and likeness is likely to confuse, mislead, and/or deceive the consuming public and trade by creating the false impression that Defendant and his products and services are or were approved, sponsored, endorsed, guaranteed by and/or are in some way affiliated or associated with Mr. Howard. 29. Defendant's use, and continuing use, in interstate commerce of Mr. Howard's

name, image, and likeness in connection with Defendant, and his good and services, also constitutes a false and misleading description or representation in violation of 15 U.S.C. 1125(a). 30. As a direct and proximate result of the conduct of Defendant, Mr. Howard is

entitled, pursuant to 15 U.S.C. 1117(a), to recover (1) Defendant's profits from the sale of his

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products and services, and (2) any damages sustained by Mr. Howard as a result of Defendant's conduct, the amount of which shall be determined at trial. 31. The unlawful conduct of Defendant, as alleged herein, was committed with

knowledge of Mr. Howard's prior rights to, and use of, his name, image, and likeness, and with the intent to trade on Mr. Howard's name, image, and likeness, entitling Mr. Howard to treble damages. 32. Mr. Howard also seeks a preliminary and permanent injunction to prohibit

Defendant from any further commercial use of Mr. Howard's name, image, and likeness. RELIEF REQUESTED Mr. Howard requests that judgment be entered in his favor and against Defendant as follows: A. An award in Mr. Howard's favor of compensatory, general, and special damages

in an amount to be determined at trial, together with statutory interest thereon; B. trial; C. An award of revenues and profits received by Defendant as a result of the An award of exemplary and punitive damages in an amount to be determined at

unauthorized use of Mr. Howard's name, image, and likeness; D. Entry of a preliminary and permanent injunction prohibiting Defendant and those

in active concert or participation with Defendant from violating Mr. Howard's right of publicity and privacy and from false association; and E. Such other relief as this Court may deem just and proper.

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Respectfully submitted, VARNUM LLP Attorneys for Desmond Howard

Dated: April 15, 2013

By: /s/ Richard T. Hewlett Richard T. Hewlett (P41271) Timothy E. Eagle (P38183) Matthew W. Bower (P66957) Business Address and Telephone: 39500 High Pointe Blvd., Suite 350 Novi, MI 48375 (248) 567-7400 (248) 567-7440 - Fax rthewlett@varnumlaw.com teeagle@varnumlaw.com mwbower@varnumlaw.com

JURY DEMAND Desmond Howard demands a jury trial on all the issues so triable. Respectfully submitted, VARNUM LLP Attorneys for Desmond Howard

Dated: April 15, 2013

By: /s/ Richard T. Hewlett Richard T. Hewlett (P41271) Timothy E. Eagle (P38183) Matthew W. Bower (P66957) Business Address and Telephone: 39500 High Pointe Blvd., Suite 350 Novi, MI 48375 (248) 567-7400 (248) 567-7440 - Fax rthewlett@varnumlaw.com teeagle@varnumlaw.com mwbower@varnumlaw.com

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PROOF OF SERVICE The undersigned, being first duly sworn, says that on this date she served a copy of DEFENDANT DESMOND HOWARD'S ANSWER TO COMPLAINT, AFFIRMATIVE DEFENSES, COUNTERCLAIM, and JURY DEMAND upon the following individuals: Thomas A. Blaske BLASKE & BLASKE 500 South Main Street Ann Arbor, MI 48104 James E. Stewart HONIGMAN MILLER 660 Woodward Avenue 2290 First National Building Detroit, MI 48226 Timothy E. Galligan TIMOTHY E. GALLIGAN ASSOC. 3069 University Drive, Suite 260 Auburn Hills, MI 48326 Roderick M. Thompson FARELLA BRAUN & MARTEL LLP 235 Montgomery Street San Francisco, CA 94104 J. Michael Huget HONIGMAN MILLER 130 South First Street, 4th Floor Ann Arbor, MI 48104-1386 Stephen M. Rummage DAVIS WRIGHT TREMAINE, LLP 1201 Third Avenue, Suite 2200 Seattle, WA 98101

Jenice C. Mitchell Ford CLARK HILL PLC 500 Woodward Avenue, Suite 3500 Detroit, MI 48226

by electronically filing the foregoing with the United States District Court ECF system. Dated: April 15, 2013
6052048_1.DOCX

/s/ Tricia L. Adgate Tricia L. Adgate

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