W
`
`THE UNITED STATES PATENT AND TRADEMARK OFFICE P
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`;
`‘
`
`I
`
`WORLD TRIATHLON CORPORATION,
`
`Opposer
`
`v.
`
`TRADITIONAL MEDICINALS, INC.
`
`Applicant
`
`)
`5
`)
`)
`)
`)
`)
`)
`)
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`Q
`53
`‘c;
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`LC)
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`11-o4-2002
`_
`_
`U.S. Patent8: TMO1clTMMall RcptDt. #64
`oslnon NO‘ 1
`MOTION FOR SANCTIONS FOR
`FAILURE TO RESPOND TO
`DISCOVERY OR IN THE
`ALTERNATIVE To CONTINUE
`DISCOVERY DATES;
`DECLARATION OF JAY H.
`GELLER IN SUPPORT
`
`3,;
`\ 3;
`3
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`'
`73''!
`
`Applicant respectfully requests that the Board, pursuant to TBMP 527.01, sanction Opjposerf
`"T" "J ..
`C’
`for its failure to provide an adequate and meaningful response to the request for productio:-1“.§ that}
`Opposer was compelled to respond to by the Board on September 4, 2002. Among the sanctions that W
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`the Board can enter are (1) striking all or a part of the pleadings of the disobedient party, (2) refusing
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`to allow the disobedient party from supporting or opposing designated claims or defenses, (3)
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`prohibiting the disobedient party from introducing designated matters in evidence, and/or (4) entering
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`judgment against the disobedient party. TBMP 527.01. Opposer has violated the Board’s order of
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`September 4, 2002.
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`In the alternative, discovery and trial dates should be reset to allow applicant sufficient time to
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`examine the documents that have yet to be produced pursuant to the September 4, 2002 Order.
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`Applicant suggests an extension of at least 90 days.
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`As grounds for this Motion, applicant represents the following.
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`'1.
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`In the Board's September 4, 2002 Order,
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`it granted applicant's Motion to Compel
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`production of documents and ordered Opposer to produce the documents.
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`(Applicant has filed a
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`request for reconsideration of the September 4, 2002 Order which has not yet been acted upon.)
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`Rather than produce the documents or arrange for their production, Opposer simply continued the prior
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`objections that the Board overruled and did not make any attempt to produce the documents. The
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`

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`
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`discovery deadline imposed in the September 4, 2002 Order ofthe Board is rapidly approaching. The
`response served by opposer is adequate in that it contains numerous objections thiit are not well
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`founded, responses of "no documents to produce" that are wholly without merit, and did not provide
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`for any meaningfiil mechanism for etfectuation of the production of the documents. {The response is
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`attached to the attached declaration of Jay H. Geller as Exhibit A. Based upon Opposer's failure to
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`comply with the Board's order, sanctions are appropriate.
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`2.
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`With respect to the alternative motion to reset discovery dates, applicant advises the
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`Board that as soon as it's counsel received the responses on October 10, 2002, he imrhediately phoned
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`counsel for Opposer to discuss the substance of the responses and the mechanism for production.
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`When opposer's counsel did not respond, on October 11, 2002, applicant's counsel phoned again
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`opposer's counsel to discuss the responses. By email on October 11, 2002 (Ex. B to Geller decl.),
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`opposer's counsel advised applicant's counsel that he was called for a trial on short notice and asked if
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`the parties could talk at the end of October. On October 11, 2002, counsel for applicant sent a reply
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`email to opposer's counsel (Ex. C to Geller decl.) advising that the end of October was too late to
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`discuss the responses to the request for production because of the looming discovery cutofi‘ date and
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`explaining why applicant did not think that the stated objections were valid. Applicant's counsel
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`advised opposer's counsel that the email should be considered a meet and confer on the requests.
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`3.
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`As of the date of filing this Motion, applicant has had no further contact from opposer
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`or it's counsel with regard to the requested documents.
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`l\/IEMORANDUM IN SUPPORT
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`1. REQUEST FOR SANCTIONS
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`As noted above, TBMP 527.01 provides for a variety of sanctions for failure to comply with a
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`Motion to Compel. At a minimum, the allegations added by the Amended Notice of Opposition that
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`the mark IRON MAN is a famous mark and that opposers attempt to register the mark IRON
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`WOMAN dilutes that mark should be stricken and Opposer should be prohibited from offering any
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`

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`
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`support on the dilution claim and offering any evidence with respect thereto. Also at a minimum,
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`opposer should be precluded fiom any reliance on the alleged purchase from Hostelling International,
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`an alleged mark IRON WOMAN or providing any support on that claim or offering any evidence on
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`that claim.
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`Applicant urges the Board, under its authority pursuant to 37 CFR 2.120(g) and TBMP
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`527.01, to enter judgment against the opposer and terminate this opposition proceeding once and for
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`all. As the Board knows, discovery has been very difiicult here with numerous Motions to Compel
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`having been filed. Opposer appears not to take seriously its discovery obligations or compliance with
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`the Orders of the Board. By now, applicant should have had access to the documents ordered to be
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`produced in order to meaningfiilly prepare for the trial testimony.
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`Instead, applicant is left in the
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`position of either requesting more discovery time or, preferably, having this matter disposed of once
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`and for all by entry ofjudgment against opposer.
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`II. CONTINUANCE OF DISCOVERY AND TRIAL
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`In the event that the Board determines not to assess sanctions against opposer, applicant
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`requests that the discovery the trial dates be extended for at least 90 days. Applicant has not had any
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`opportunity to even discuss with opposer‘s counsel the mechanics for production of the documents or
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`the continued objections. With the discovery cutoff upon the parties, applicant has, for all intents and
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`purposes, been totally and completely denied the opportunity to take discovery because opposer has
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`not complied with the Board's order. Applicant has been unable to take any further discovery
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`regarding the documents (i.e., fiirther documents requests, depositions, etc.) because it does not know
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`what is in the documents. Opposer has succeeded in totally fiustrating applicant's ability to take
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`meaningfiil discover and without an extension, the Board will be acquiescing in opposer's stall and
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`delay tactics. Furthermore, the obvious attempt on the part of opposer to stymie applicant's discovery
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`is finther grounds for entry of sanctions.
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`CONCLUSION
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`

`
`
`
`Based upon the foregoing, applicant submits that its Motion for Sanctions is wfell founded and
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`urges the Board to enter sanctions that it deems appropriate for opposer‘s failure to comply with the
`September 4, 2002 Motion to Compel.
`In the alternative, applicant requests that thle discovery and
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`trial dates be extended for a period of at least 90 days to allow applicant to complete meaningful
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`discovery in this matter.
`
`Respectfiilly submitted,
`
`’ Ja
`
`. Geller
`
`Jay H. Geller, A Prof. Corp.
`West Tower, Suite 4000
`2425 W. Olympic Bl.
`Santa Monica, CA 90404
`310-449-1399 PH
`
`310-449-1394 FX
`
`jhge1ler@aol.com
`Attorney for Applicant
`
`I certify that the foregoing is being deposited with the United States Postal Service as first class
`mail, postage prepaid, in an envelope addressed to the Mr. Frank Jakes, Johnson, Blakeley, Pope,
`Bokor, Ruppel & Burns, P.A., P.O. Box 1100, Tampa, FL 33601-1100 on October 29, 2002.
`
`lg.
`
`ler
`
`H.
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`

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`
`
`DECLARATION OF JAY H. GELLER
`
`I
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`Jay H. Geller, declares and says as follows:
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`1.
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`I am the attorney for applicant in this case and if called as witness would testify of my
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`own personal to the following facts.
`
`I
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`2.
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`On October 10, 2002, I received opposer’s responses to the Discovery Requests that
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`the Board ordered to be provided in it's September 4, 2002 Order (attached as Exhibit A).
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`3.
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`Upon review of the responses, I found that there were numerous’ objections that
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`appeared to have no basis and numerous categories of documents that were requested to which the
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`reply was opposer didn't have them and that applicant should get them from Hostelling International
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`(responses to Requests No. 21 - 24). Since those documents are relevant to the use ofthe mark IRON
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`WOMAN by Hostelling International under which opposer now claims ownership of that mark,
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`applicant is entitled to have those documents produced.
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`4.
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`On October 10, 2002, I phoned Frank Jakes, attorney for opposer to discuss the
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`responses. When I received no response by October 1 1, 2002, I again phoned Mr. Jakes to discuss the
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`responses. In response to my two phone calls, I received an email from Mr. Jakes (attached as Exhibit
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`B) advising me that he had been called into atrial and could not discuss the responses with me until the
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`end of October, 2002.
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`5.
`
`In response to Mr. Jakes‘ October 11, 2002 email, I sent Mr. Jakes an email (attached
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`as Exhibit C) acknowledging receipt of his email and objecting to yet another significant delay in
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`discovery.
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`I also pointed out to him the deficiencies in the responses. As of the date of execution of
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`this declaration, I have never received any response fiom Mr. Jakes to my October 1 1, 2002 email.
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`I declare under penalty of perjury ofthe United States that the foregoing is true and correct and
`I
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`this declaration was executed at Santa Monica, CA on October 29, 2002.
`
`N‘/7/L,_,._.
`
`ller
`
`H.
`
`

`
`
`
`TRADEMARK OFFICE
`IN THE UNITED STATES PATENT
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD l
`
`Opposition Number: 1 10,391
`
`'
`
`
`
`1 1-04-2002
`u.s. Pawn a. TMOfclTM Mai| HcptDt. #54
`
`) ) ) ) ) )
`
`T)
`)
`)
`__)
`
`WORLD TRIATHLON CORPORATION,
`
`Opposer,
`
`V.
`
`TRADITIONAL MEDICINALS, INC.
`
`. Applicant.
`
`
`OPPOSER WORLD TRIATHLON CORPORATION'S SUPPLEMENTAL
`RESPONSES TO APPLICANT'S THIRD SET OF REQUEST FOR
`PRODUCTION OF DOCUMENTS TO OPPOSER NOS. 1-9,15, 17 and 19-30
`
`Opposer, WORLD TRIATHLON CORPORATION ("Opposer"
`
`or
`
`“WORLD
`
`TRIATHLO ”),
`
`in accordance with the TTAB’s September 4, 2002 Order, submits the
`
`following supplemental responses and objections to Applicant, TRADITIONAL MEDICINALS,
`
`INC.’s ("Applicant" or "TRADITIONAL MEDICINALS") Third Request for Production of
`
`Documents to Opposer, Nos. 1-9, 15, 17 and 19-30. In accordance with 37 C.F.R. § 2.120(d)(2),
`the production of documents will be made at the place where the documents and things are
`usually kept or where the parties agree, or where in the manner which the Trademark Trial and
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`Appeal Board ‘orders.
`
`I
`
`GENERAL OBJECTIONS
`
`1.
`
`WORLD TRLATHLON objects to these requests and to the definitions and
`
`instructions contained therein, to the extent that they seek to impose on WORLD TRIATHLON
`
`obligations greater than or different from those established by the Federal Rules of Civil Procedure
`
`and the Rules of Practice and Trademark Cases.
`
`2.
`
`WORLD TRIATHLON also objects to the instructions, definitions and scope to the
`
`

`
` i.
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`extent that they seek to impose obligations on WORLD TRIATHLON that are unduly burdensome
`
`where information sought is obtainable from other sources that is more convenient, less burdensome
`
`and less expensive.
`
`3.
`
`WORLD TRIATHLON objects to these requests to the extent that they seek to
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`discover information or documents of the confidential, trade secret or proprietary nature.
`
`4.
`
`WORLD TRIATHLON also objects to these requests to the extent that they seek
`
`materials prepared for litigation or information and documents protected by the attorney/client
`
`privilege, work-product privilege, joint defense privilege, and any other applicable privilege or are
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`otherwise immune from discovery.
`
`5.
`
`WORLD TRIATHLON objects to these requests to the extent that they impose upon
`
`WORLD TRIATHLON an undue burden and expense, seek discovery not reasonably calculated to
`
`lead to the discovery of admissible evidence and are not relevant to the subject matter involved in
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`the pending action.
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`6.
`
`WORLD TRIATHLON objects to the use throughout these requests of words and
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`phrases that are vague, ambiguous, not sufficiently definite or susceptible to varying interpretations.
`
`SUPPLEMENTAL RESPONSES TO APPLICANTS THIRD SET OF REQUEST FOR
`PRODUCTION OF DOCUMENTS 'TO=OPP‘C}SER NOS. 1-9, 15, .17 and 19-30
`
`'
`
`1.
`
`All documents that support
`
`the contention in paragraph 8 of your Second
`
`Amended Notice of Opposition that applicant's goods are similar to any good and/or service on
`
`which you and/or your predecessor in interest uses the mark IRONWOMAN.
`
`Subject to its General Objections, WORLD TRIA THLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`

`
`
`
`2.
`
`All documents that support
`
`the contention in paragraph 8 df your Second
`
`Amended Notice of Opposition that applicant's goods are related to any good and/or service on
`
`which you and/or your predecessor in interest uses the mark IRONWOMAN.
`
`Subject to its General Objections, WORLD TRLATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`3.
`
`All documents that support
`
`the contention in paragraph 8 of your Second
`
`A Amended Notice of Opposition that applicant's mark is confusingly similar to your and/or your
`
`predecessor in interest‘s use of the mark IRONWOMAN.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`4.
`
`All documents that support
`
`the contention in paragraph 8 of your Second
`
`Amended ‘Notice of. Opposition that applicant's mark IRON WOMAN is likely to cause
`
`confusion in the minds of the public.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`

`
`
`
`5.
`
`All documents that support
`
`the contention in paragraph 8 of your Second
`
`Amended Notice of Opposition that applicant's mark IRON WOMAN is likely to cause mistake
`
`il
`
`in the minds of the public.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`6.
`
`All documents that support
`
`the contention in paragraph 8 of your Second
`
`Amended Notice of Opposition that applicant's use of its mark IRON WOMAN does or will lead
`
`the public to believe that applicant's goods are related to your goods or the goods of your
`
`predecessor in interest.
`
`to its General Objections, WORLD TRIATHLON shall
`Subject
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`7.
`
`All documents that support
`
`the contention in paragraph fl of your Second
`
`5
`
`Amended Notice of Opposition that applicant's use of its mark IRON WOMAN does or will lead
`
`prospective purchasers to believe that applicant's goods are related to your go’ods or the goods of
`
`your predecessor in interest.
`
`Subject to its General Objections, WORLD TRL/1THLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`

`
`
`
`8.
`
`All documents that support
`
`the contention in paragraph 8 if your Second
`
`Amended Notice of Opposition that applicant's use of its mark IRON WOMAN does or will lead
`
`the public to believe that applicant's goods are backed by your name and reputation.
`
`Subject to its General Objections, WORLD TRLATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`9.
`
`All documents that support
`
`the contention in paragraph 8 of your Second
`
`Amended Notice of Opposition that applicant's use of its mark IRON WOMAN does or will lead
`
`prospective purchasers to believe that applicant's goods are in some way backed by your name
`
`1
`
`and reputation.
`
`Subject to its General Objections, WORLD TRMTHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`15.
`
`All documents that pertain t potential confusion in the marketplace between your
`
`goods and/or services bearing the mark IRONWOMAN and applicant's goods bearing the mark
`
`IRON WOMAN.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`

`
` 1I
`
`I
`
`.iI
`lI
`
`17.
`
`Each and every licensing agreement into which you have entered licensing any
`
`other person to use any of the marks IRONWOMAN or IRON WOMAN.
`
`l
`
`to its General Objections, WORLD TRIATHLON shall
`Subject
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`19.
`
`All documents referring or re lating to the manner in which you control
`
`the
`
`manner of use of the mark IRONWOMAN in connection with each and every licensee's goods or
`
`services identified by mark IRONWOMAN.
`
`Subject to its General Objections, WORLD TRZATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`20..
`
`All documents received by you from, or sent by you to, the general public, which
`
`refer or relate to applicant and/or applicant's mark IRON WOMAN.
`
`'
`
`Subject to its General Objections, WORLD TRIATHLON shall
`.-produce documents responsive to this request as they are kept-in
`the usual course of business at a mutually convenient date and
`time.
`
`

`
`
`
`21.
`
`All documents pertaining to the use by Hostelling International, fiésmerican Youth
`
`Hostels, Minnesota Council [sic] of the mark IRONWOMAN in connectiori with any good
`
`and/or service.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time. Opposer is not in possession of all documents that may be
`responsive
`to this
`request.
`Opposer
`refers Applicant
`to
`“Hostelling International, American Youth Hostels, Minnesota
`Council."
`
`22.
`
`All documents pertaining to the use by Hostelling International, American Youth
`
`Hostels, Minnesota Council [sic] of the mark IRONWOMAN in connection with athletic events.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time. Opposer is not in possession of all documents that may be
`responsive
`to this
`request.
`Opposer
`refers Applicant
`to
`“Hostelling International, American Youth Hostels, Minnesota
`Council.”
`
`23.
`
`All documents pertaining to the use by Hostelling International, American Youth
`
`Hostels, Minnesota Council
`
`[sic] of the mark IRONWOMAN in connection with products
`
`associated with athletic events.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time. Opposer is not in possession of all documents that may be
`responsive
`to this
`request.
`Opposer
`refers Applicant
`to
`“Hostelling International, American Youth Hostels, Minnesota
`Council."
`
`

`
`
`
`24.
`
`All documents pertaining to the use by Hostelling International, American Youth ‘
`II
`
`Hostels, Minnesota Council of the mark IRONWOMAN in connection with services associated
`
`with athletic events.
`
`to its General Objections, WORLD TRIATHLON sh'all
`Subject
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time. Opposer is not in possession of all documents that may be
`responsive
`to this
`request.
`Opposer
`refers Applicant
`to
`“Hostelling International, American Youth Hostels, Minnesota
`Council. ”
`
`25.
`
`All documents establishing the first use by Hostelling International, American
`
`Youth Hostels, Minnesota Council of the mark IRONWOMAN.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`26.
`
`All documents pertaining to your claim in Paragraph 9 of the Second Amended
`
`Notice of Opposition that IRONMAN is a famous mark.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`l
`
`

`
`,,
`
`J
`
`u
`
`«
`
`'-
`
`_
`
`.
`
`'
`
`.
`,
`
`I
`
`27.
`
`All documents pertaining to your claim in Paragraph 9 of the Second Amended
`l
`
`Notice of Opposition that IRONMAN TRIATHLON is a famous mark.
`
`Subject to its General Objections, WORLD TRIATHLON shlzll
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`I
`
`28.
`
`All documents pertaining to your claim in Paragraph 9 of the Second Amended
`
`Notice of Opposition that registration by applicant of its mark IRON WOMAN will lessen the
`
`capacity of IRONMAN and IRONMAN TRIATHLON to identify and distinguish your goods
`
`and services.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient dale and
`time.
`
`29.
`
`All documents pertaining to your claim in Paragraph 9 of the Second Amended
`
`Notice of Opposition that registration by applicant of its mark IRON WOMAN will dilute the
`
`distinctive quality of your marks IRONMAN and IRONMAN TRIATHLON.
`
`Subject to its General Objections, WORLD TRIATHLON shall
`produce documents responsive to this request as they are kept in
`the usual course of business at a mutually convenient date and
`time.
`
`f
`
`‘
`
`z
`
`i
`
`‘
`i
`
`‘
`
`

`
`30.
`
`All documents establishing the continuous use since April 1996 of the mark
`
`IRONWOMAN by Hostelling International, American Youth Hostels, Minnesota Council.
`
`Subject to its General Objections, WORLD TRIATHLON s/gall
`produce documents responsive to this request as they are kept: in
`the usual course of business at a mutually convenient date and
`time.
`Ir
`I
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that the original-of the foregoing, has been furnished by U.S. Mail
`
`to Jay H. Geller, Esquire, 2425 West Olympic Blvd., East Tower, Suite 600, Santa Monica, CA
`90404 this
`day ofOctober, 2002.
`
` I Jakes A
`
`1 da Bar No. 0372226
`
`I
`
`’
`
`Joseph J. Weissman
`Florida Bar No. 0041424
`
`JOHNSON, BLAKELY, POPE,
`BOKOR, RUPPEL & BURNS, P.A.
`P.O. Box 1100
`
`Tampa, FL 33601-1100
`Phone: (813) 225-2500
`Facsimile: (813) 223-7118
`Attorneys for Opposer World Triathlon Corp.
`
`104294/63269
`OPUS 0032-OSA
`
`

`
`“Message
`
`,
`
`Page 1 of 1
`
`i
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`‘ wrc v. Traditional Medicinals
`igoatez
`10/11/02 12:06:18 PM Pacific Daylight Time
`§From:
`Frank.)
`‘b firm.com
`%fTo:
`ihgeiler@aol.com
`
`’
`
`3
`
`Jay:
`
`I am not trying to avoid you, but i got called for trial on very short
`Sony I haven't returned your phone call.
`notice in a patent infringement case and am under the gun. Could we talk around the end of the month?
`
`Frank
`
`Frank R. Jakes
`Johnson, Blakeiy, Pope, Bokor, Ruppel, 8- Burns P.A.
`Line 813-225-2500 ext 210 Fax 813-223-7118
`The information contained in this transmission may be attomeylclient privileged and therefore confidentiai. This infonnation is intended only for the use
`of the individual or entity named above. ifthe reader of this message is not the intended recipient , you are hereby notified that any dissemination,
`distribution, printing or copy of the communication is stridiy prohibited. if you receive this transmi$ion in error, or if you are not the individual or entity
`named above, the receipt of this transmission is not intended to and does not waive any privilege. attomey/client or otherwise. if you have received this
`communication in error, please notify us by telephone or e~maii. Thank you.
`
`
`Tuesday, October 29, 2002
`
`America Onlinez JHGELLER
`
`JIl
`
`

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`:J.
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`‘$5
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`Page 1 ofl
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`iSubj: “M Re: wrc v. Traditional Medicinals
`Date:
`10/11/02 1:18:10 PM Pacific Daylight Time
`lFrom:
`JHGELLER
`I
`$19:
`Fra_nkJ
`‘b firgnconl________________M_“__________‘WW__________________M_______________W
`l
`Hi Frank - thanks for the email - unfortuantely the end of the month is way too late - l neeld to know what
`documents there are and what arrangements are going to be made to exchange them.
`l Iunderstandyou are
`busy, but l’m sure someone else in your firm can handle this.
`I don't want to make any unnecessary work, but
`with a discovery cutoff date looming, I have to know what's there and what isn't.
`Also, the answers with respect to American Hostelling documents that you say are only available form them is
`inadequate. They are not a party and I can't discovery from them. Your amended notice of opposition relies
`on their use and you are obligated to either produce that information or have those claimed dropped.
`l don't
`see how you can claim rights based upon their use but not provide discovery relevant thereto. Please
`consider this a meet and confer on those requests and if we cannot reach an agreement, I will be forced to tile
`yet another Motion to Compel.
`.
`J
`
`I look forward to hearing from you.
`
`Jay H. Geller
`
`West Tower, Suite 4000
`2425 W. Olympic Bl.
`Santa Monica, CA 90404
`PH: 310449-1399
`
`FX: 310-449-1394
`
`/'
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`l
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`I
`I
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`1
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`Friday, October 11, 2002
`
`America Onlinez JHGELL1;;3R