Plaintiffs (collectively “Rapaport”) submitted this brief in opposition to the motions of defendants-counterclaimants (collectively “IDEX”) to amend and supplement their counterclaims and to compel additional document production.

This case fundamentally is based on IDEX’s infringement and misuse of Rapaport’s registered INDEX® trademark and its valuable proprietary diamond pricing data. The last pleading was filed two years ago. Fact discovery closed nearly a year ago and the Court has already denied two IDEX requests to reopen discovery. The most recent scheduling order set a date for the filing of dispositive motions in March 2008. That last deadline was, on IDEX’s application, lifted by the Court to allow IDEX time for belated, so-called “expert discovery.”

That “expert discovery” resulted in two dubious achievements: One, the submission of an IDEX expert report that amounted to a paid endorsement of yet another application by IDEX for yet more discovery. And two, this motion to amend the pleadings, which attempts to bootstrap these “expert” speculations into a basis to insert, as amended counterclaims, new antitrust claims styled, contrary to all precedent, as claims for “unfair competition.” As if this were not enough, IDEX also seeks to introduce new trademark counterclaims, objectively unrelated to any aspect of this case that has been sub judice since 2003, based on alleged acts by Rapaport claimed to have taken place months earlier, and premised on the existence of an alleged “trademark” in the plain English phrase “guaranteed diamond transactions.” This is a phrase that the U.S. Patent and Trademark Office has already recognized, in declining three separate applications for registration by IDEX, cannot possibly be a trademark.