FannyWang-Open-Response12-23 by mmasnick

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									                                     Fanny Wang Headphone Company
                                                Danville, CA

                                                                                          December 23, 2010

Regarding Letter Entitled: “Infringement of Beats and Monster's Intellectual Property Client-Matter No.

Dear Attorneys, Monster Cable Inc and Beats Elecronics LLC
CC: Noel Lee, Jimmy Iovine and Andre Young

Michael G. Kelber
Neal – Gerber -Eisenberg

We received notice of your lawsuit and your claims of patent and trade dress infringement last week. We
were shocked by your assertions and wish to respond to your letter publicly. As you undoubtedly know, our
business is just getting started. A quick review of the litigious history of Monster and Beats reveals that
your modus operandi is to attempt to squash competition using this type of expensive litigation rather than
attempt to fairly compete. In addition to this, my opinion is grounded in the fact that you haven't even had a
chance to hold our new headphones and rather than calling us or sending a cease and desist letter, in typical
fashion, you jumped straight to a lawsuit.

More over you have even gone to the extent of seeking a temporary restraining order (in the days
immediately preceding the Christmas holiday) in a calculated attempt to skyrocket our legal bills and
prevent us from attending the Consumer Electronics Show. You've asked the court to give us two days to
respond to a 130 page motion which references 400+ pages of case law right as everyone is leaving for
vacation. You have employed four law firms and have employed timing tactics that are questionable.

Monster has a clear and established track record of suing companies in an attempt to stifle competition. I,
as most Beats consumers will be, was shocked to learn that a search of the Federal Court records system
indicates more than 110 line items in which Monster appears as a party to litigation. This is even further
evidenced by the notoriously ridiculous suits that Monster brought against Disney for its film, Monsters
Inc, (dismissed), against Monster Mini Golf (settled) and Fenway Park (settled).

In short, Fanny Wang has no desire to infringe on your patents or trade dress or be associated with
Monster’s sound quality. Instead, Fanny Wang desires to compete by building a superior product marketed
under our different and innovative brand: Fanny Wang. In fact, the comparisons that you make reference to
in your complaint and letter, clearly demonstrate Fanny Wang’s desire to differentiate itself from Monster
& Beats products by identifying differences and allowing the consumer to make its own determinations.
Such passing references to competitors are routine in the marketplace and are clearly allowed under both
state and federal trademark laws.

We started designing the Fanny Wang Headphones many months ago and started off by researching what
consumers want. We saw a clear trend in consumers wanting a unibody style headphone and saw that many
vendors were going down this path including Beats, Shure, Sony, Soul Headphones and more. Moreover,
given the shape of a typical consumer’s head any company would be hard pressed to develop a set of
headphones that had a significantly different shap. Moreover, our design process included legal reviews
and research before we started the costly manufacturing process. Simply put, the Fanny Wang On Ear
Wangs fit this new fashion trend without infringing on any design patents or trade dress rights as claimed in
your lawsuit.

Your allegations are serious and indepth and we simply need an appropriate amount of time to respond to
your claims in details. I would like to put out a few obvious defects that you highlight in your Dec 16th
letter. My lawyer is delaying his holiday plans to help our young company defend itself.

You like to call Fanny Wang a ridiculous knock off, yet you refuse to expressly identify how we infringe.
We officially request that you spell out how we infringe. The Fanny Wang headphones are far from a
knock-off, are priced at a point where no reasonable consumer would likely confuse the two. Fanny Wang’s
unique design is simply adapted to attract a fashion conscious demographic that is largely female – a
consumer base that is drastically different from your consumers.

   •   A brief look at the referenced design pattern reveals many obvious deferences in the ornamental
       design which you claim protection. Such ornamental differences would be readily apparent to not
       only the ordinary observer, but would be especially evident to an ordinary observer who was
       familiar with the similar products found on the market.

   •   As per your claims of Trade Dress infringement, No reasonable argument can be made that our
       Fanny Wang Girlz are going to be confused with your spokes person Dr Dre. We respect the
       credibility that Dr Dre brings to the hip hop influenced consumers that buy Beats, but we are going
       after a totally different demographic.

   •   You claim that our packaging infringes or copies that of Beats by Dr Dre? Have you even looked at
       our site? Our packaging features a glass enclosure and a floating headphone. Whereas the Beats
       product comes in a sealed cardboard container which does not remotely allow for visibility of the

   •   You make a thoroughly unsubstantiated claim that by our factory hiring the sound engineer who
       did the original work on your headphones that we would likely be stealing trade secrets. Our sound
       design was specified to be superior to that of the Beats’ products and thus Fanny Wang products
       employ a different design. In fact, you know or should have known that Monster’s/Beat’s threats
       toward him could jeopardizes his employment and his employer, potentially giving him the right
       to pursue a claim of liability against you. This threat of unfair trade is being looked at by our legal
       team in China. And its just mean to make such a claim without any knowledge.

In short, this isn't our first rodeo. We have no intentions of infringing your intellectual property and we
have no intentions of being bullied into going away--in fact, quite the opposite. If you choose to proceed,
we can promise you that we will not back down and will ensure that this matter comes to a head with a
high-profile jury trial so that the country and your customer base understands Monster’s and Beats’
overzealous tactics. Moreover we will seek recovery of all attorney fees and costs and potentially damages
and other relief based on the counter claims we are currently considering.


Tim Hickman and David Adam
Founders of the Fanny Wang Headphone Company

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