/\T!'l7—\ E;
`
`GRIGGS BERGEN & JOHNSTON LLP
`ATTORNEYS AT LAW
`
`A REGISTERED LIMITED LIABILITY PARTNERSHIP
`
`OF COUNSEL
`SLATER 84 MATSIL, LLP
`
`PATENT. TRADEMARK
`and COPYRIGHT MATTERS
`
`PRESTON ROAD AT FRANKFORD
`PRESTON PLAZA, SUITE 1000
`17950 PRESTON ROAD
`DALLAS, TEXAS 75252
`
`Main 972.732.1001
`Fax
`972.732.9218
`
`March 20, 2003
`
`Trademark Trial and Appeal Board
`United States Patent and Trademark Office
`
`2900 Crystal Drive
`Arlington, VA 22202-3513
`
`VlIn’ter’s Direct Dial
`'972.447.4569
`
`Writer's Email
`dennis@griggslaw.com
`
`03-2442003
`Us. Patent & mofcnu Mail Rep! 01. #30
`
`Re:
`
`State Fair of Texas V. Judson-Atkinson Candies, Inc.
`
`TTAB Opposition No. 121,897
`Our File: L1916.1987.3636
`
`‘H
`
`A
`
`Dear Sirs:
`
`Enclosed per the Board's request is a copy of the Oral Deposition of John
`Glowinkowski, taken during Opposer's Rebuttal Testimony on July 10, 2002.
`
`Very truly yours,
`
`Dennis T. Griggs
`Attorney for Opposer
`
`.l
`
`T
`
`DTG/mls
`
`Enclosure
`
`

`
`
`
`JOHN GLOWINKOWSKI
`
`7/ 10/02 j
`
`1
`
`.-L
`
`C)COm\|O)U1-b0JI\)
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`STATE FAIR OF TEXAS,
`
`Opposer,
`
`vs.
`
`JUDSON-ATKINSON CANDIES,
`INC.,
`
`App1icant.
`
`‘—/§/&\/$2‘:/\2§/\2\é
`
`OPPOSITION NO. 121,897
`
`03-24-2003
`T‘
`u.s. t_'>azem 5. TMOfclTM Mail Rcpt on #30
`
`‘k*‘k**'k*********************'k*'k*'k*******9é**'k***********
`
`ORAL DEPOSITION OF
`
`JOHN GLOWINKOWSKI
`
`Ju1y 10, 2002
`
`********‘*******'k*********'k****'k*******'k!**‘k*********'k**
`
`ORAL DEPOSITION of JOHN GLOWINKOWSKI, produced as
`
`a witness at the instance of the Opposer, and duly
`sworn, was taken in the above-sty1ed and numbered
`
`cause on Ju1y 10, 2OO2,
`
`from 10:05 a.m1 to 10:32 a.m.,
`
`before CarO1 Ernst, RPR, CSR in and for the State of
`
`Texas,
`
`reported by machine shorthand, at the offices
`
`of State Fair Administration Bui1dingI Fair Park,
`
`3921 Martin Luther King Bou1evard,_City of Da11as,
`
`County of Da11as.
`
`CAROL ERNST, CSR
`Metro (81?) 975-5009
`
`©©l}@Y
`
`
`
`

`
` E
`
`JOHN GLOWINKOWSKI
`
`7/ 10/02
`
`
`
`
`
`._\
`
`O(Dm\lO3U1-l>0Jl\)
`
`A P P E A R A N C E S
`
`FOR THE OPPOSER:
`
`Mr. Dennis Griggs
`GRIGGS & JOHNSTON, L.L.P.
`1000 Preston P1aza
`
`17950 Preston Road
`Da11as, Texas 75252
`
`FOR THE APPLICANT:
`
`3
`Mr. Car1 w. c¢qe+t, Jr.
`CARL W. COVERT, JR., ATTORNEY AT LAW
`800 NW Loop 410, Suite 480 South
`~
`San Antonio, Texas 78216
`
`CAROL ERNST, CSR
`Metro (817) 975~5009
`
`

`
`
`
`
`JOHN GLOWI NKOWSKI
`
`7/10/02
`
`—A
`
`I N D E X
`
`Appearances.... .
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`. ..3 .
`
`JOHN GLOWINKOWSKI
`
`.
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`Examination by MR. GRIGGS .
`. .1 .
`.
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`Examination by MR. COVERT .
`Further Examination by MR. GRIGGS..s .
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`. .7...,..:_ 24
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`CD(D®\1C')(.TI-b0.>l\)
`
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`
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`N -(>-
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`I\) O1
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`Signature and Changes .
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`Reporter's Certificate .
`
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`26
`
`E x H I B I T 5
`
`
`
`NO. DESCRIPTION PAGE
`
`EE
`
`FF
`GG
`HH
`
`Exhibits Contract No. 035, May 2001
`
`Exhibits Contract No. 086, May 2001
`Exhibits Contract No. 087
`.
`j
`Big Tex Je11y Beans $2.49 Per Haif Pound
`
`5
`
`11
`11
`14
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWINKOWSKI
`7/ 10/02 ?
`4
`
`
`
`-3
`
`OCOGJVOVUI-D»0Jl0
`
`(10:05 a.m.)
`
`(Exhibits EE, FF, GG and HH were marked.)
`
`JOHN GLOWINKOWSKI,
`
`having been first du1y sworn, testified as foiiows:
`
`BY MR. GRIGGS:
`
`EXAMINATION
`
`Q.
`
`A.
`
`Q.
`
`Good morning, Mr. Giowinkowski.’
`
`Good morning.
`
`My name is Dennis Griggs, and I‘m an attorney
`
`for State Fair of Texas in the matter of State Fair of
`
`Texas versus Judson—Atkinson Candies,
`Inc.
`And this
`proceeding is a trademark dispute reiating to the
`right to register Big Tex in connection with je11y
`beans, and in particuTar the right of Judson—Atkinson
`Candies to register Big Tex for je11y beans.
`
`wouTd you state your fu1T name?
`
`John Anthony Giowinkowski.
`
`And what is your age?
`
`I'm 53.
`
`And where do you reside?
`
`Do you -- we11, it's in MansfteTd, Texas.
`
`Okay.
`
`And where is your p1ace of employment?
`
`A.
`
`I'm se1f-empioyed.
`
`I have a corporation
`
`that's Da11as Co d/b/a Frontier Fruit and Nut Company.
`
`Q.
`
`wouid you say that again sTowTy?
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
` I
`
`JOHN GLOWTNKOWSKI
`
`7/10/02"
`
`5
`
`
`
`A.
`
`Da11as Co d/b/a Frontier Fruit and Nut
`
`Company.
`
`Q.
`
`A
`
`Q.
`
`A
`
`Q
`
`Is that a corporation?
`
`Yes.
`
`Where is it incorporated?
`
`In Ohio.‘
`
`And what's the nature of that business?
`
`It's retaii saies of dried fruits, nuts,
`A.
`trai1 mixes, chocoiates, candies.
`.
`
`Q.
`
`who are some of your customers that you se11
`
`to?
`
`V
`
`A.
`
`Oh, basicaiiy,
`
`I moved here back in 1979 and
`
`I've been doing that.
`
`But I've had operations in the
`
`ma11s and speciai events iike State Fair of Texas,
`
`the
`
`Fort Worth Livestock Show and many other events that
`
`go on in the Metropiex.
`
`Q.
`
`And in what iocations are these customers
`
`iocated?
`
`A.
`
`In Da11as, Fort worth, and I go out of town.
`
`we even go to San Antonio and Houston.,
`
`Q.
`
`Do you have customers in San Antonio?
`
`Yes.
`
`who are some of those customers?
`
`The San Antonio Livestock Show and Rodeo.
`
`How iong have you been in this line of
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`
`JOHN GLOWINKOWSKI
`
`7/10/02 E
`
`6
`
`-A
`
`O(OCD\lO3U1-l>OJl\)
`
`business?
`
`A.
`
`Q.
`
`time?
`
`I moved here in 1979.
`
`And what was your empIoyment prflor to that
`
`A.
`
`I had a simi1ar -- we11, I've aflways been a
`
`vendor.
`
`Even when I was 15 years o1d I worked for
`
`someone and we did specia1 events at fairs and things
`Iike that.
`we sold some products Iike Hickory Farms
`
`cheeses, and then we just ventured out
`direction.
`It was more profitab1e.
`
`in a different
`i
`
`Q.
`
`And have you had a contractua1 reiationship
`
`.v Hr».
`
`with State Fair of Texas?
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`And what is the nature of that§re1ationship?
`
`Exhibit space, retaii, and Iocations at the
`
`State Fair.
`
`we have three Iocations at this time.
`
`Q.
`
`A.
`
`what locations are those?
`
`One is in the Embarcadero Buiiding,
`
`then one
`
`is in the Grand P1ace, and one in the crafts tent.
`
`Q.
`
`Mr. GIowinkowski,
`
`I have here an exhibit that
`
`I've marked EE.
`
`And I'm going to hand it to you and
`
`ask you if you've ever seen it before.:
`
`A.
`
`Yes.
`
`.-."—\
`
`Okay.
`
`And what is this?
`
`This is a contract
`
`--
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`II
`7/10/02 !
`
`JOHN GLOWINKOWSKI
`
`7
`
`.—\
`
`C)(.OO3\lO3U'I-D-(»Jl\)
`
`MR. COVERT: Dennis,
`
`I'm going to object
`
`to this.
`
`I think in rebuttaT testimony :- this is
`
`something that shou1d have been brought up in your
`
`case in chief, any testimony with regards to his
`
`contract and what he or his company does at the State
`
`Fair.
`
`noted.
`
`issue --
`
`MR. GRIGGS: Okay. Your objection is
`By the way,
`this goes to rebuttihg the use at
`
`MR. COVERT: Okay.
`
`MR. GRIGGS:
`
`-- which was controverted
`
`by your witnesses.
`
`MR. COVERT:
`
`The use issue of what,
`
`MR. GRIGGS: Our use. That's the reason
`
`for this rebuttaT.
`
`MR. COVERT: Okay.
`
`MR. GRIGGS: Let's see, wou1d you read
`
`back my Tast question?
`
`(Record read.)
`
`(BY MR. GRIGGS) This parttcuiar contract,
`Q.
`see at the top it's identified by a number.
`Can you
`
`I
`
`read that number for us?
`
`
`
`A.
`
`Q.
`
`what number? You mean the buiTding area?
`
`No. At the top right,
`
`the contract number.
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`..
`
`I
`
`JOHN GLOWINKOWSKI
`
`7/10/02 ‘
`
`8
`
`A.
`
`Q.
`
`A.
`
`‘ on,
`
`I see. Contract No. 085.
`
`And for what exhibit space is this?
`
`This is the Embarcadero BuiTding for space
`
`number 43.
`
`I
`
`Q.
`
`Okay.
`
`And what's the nature of your services
`
`in that space?
`
`I
`
`A.
`RetaiT sa1es of dried fruits, nuts,
`chocoiates, candies.
`I
`Q.
`And what kind of candies do you seT1?
`A.
`we se11 chocoiate covered nuts. peanuts, and
`we se11 je1Ty beans, Gummi Bears, sour ba1Ts,
`rock
`
`Did you mention je1Ty beans?
`
`Yes.
`
`what kind of je1Ty beans do you se11?
`
`weT1, at this time --
`
`MR. COVERT: Dennis,
`
`I'm going to object
`
`candy.
`
`Q.
`
`A Q
`
`.
`
`A
`
`to this too. This shou1d have been handTed in your
`primary case and not
`in rebutta1.
`V
`
`MR. GRIGGS: Okay. CounseT's objection
`
`is noted.
`
`Q.
`
`(BY MR. GRIGGS)
`
`How Tong have you been under
`
`contract by State Fair of Texas?
`
`A
`
`A.
`
`Q.
`
`Since 1979.
`
`A
`
`And that was in the --
`
`—L
`
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`
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`
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`
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`
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`
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`
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`
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`
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`
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`
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`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`
`
`
`
`

`
`
`i
`
`JOHN GLOWTNKOWSKI
`
`7/10/02 '
`
`9
`
`A.
`
`Q.
`
`A.
`
`Embarcadero --
`
`-- at the State Fair --
`
`At the State Fair in the Embarcadero
`
`Buiiding,
`
`this Iocation.
`
`0.
`
`Okay.
`
`And in 1979, did you at that time se11
`
`je11y beans at your stand?
`
`A.
`
`You're going back quite a few years.
`
`I
`
`rea11y can't answer that honestiy and tefli you yes or
`
`no because I don't remember.
`
`0.
`
`Do you reca11 a date that you first started
`
`seiiing je11y beans at State Fair?
`
`some years we did --
`No, because it's been --
`A.
`we did on a reguiar basis in the '80s when Ronaid
`Reagan was president because they were very popuiar
`
`during that time.
`
`You know, he was a big fan of je11y
`
`beans.
`
`Q.
`
`A.
`
`Okay.
`
`And we haven't so1d je11y beans probabiy in
`
`the iast coupie years. But we have on occasion -- if
`
`a new item comes on, different kinds of je11y beans,
`
`we bring it out.
`
`0.
`
`A.
`
`Q.
`
`And how are they actua11y so1d?
`
`Buik: Haif pound, pound.
`
`Are they in a container of some kind?
`
`MR. COVERT:'
`
`I'm going to'object again.
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`
`
`

`
`
`
`JOHN GLOWTNKOWSKI
`
`7/10/02 E
`
`10
`
`
`
`—¥
`
`OCOQ>\lCDU'l-l>0Jl\)
`
`I think that shouid have been brought out
`
`in your
`
`primary case in chief and not
`
`in rebuttal.
`
`MR. GRIGGS: Counse1's objection is
`
`noted.
`
`And I'11 state for the record that you have a
`
`standing objection to this Iine of questioning.
`MR. COVERT:
`Thank you, Counsei.
`
`Q.
`(BY MR. GRIGGS) Typica11y, howsare the je11y
`beans actua11y so1d?
`V
`
`A.
`
`A11 right.
`
`we have them dispiayed either in
`
`jars or in piastic bins where peopie can come up and
`
`take a Iook at it and choose what
`
`they Iike and say,
`
`"Give me a quarter pound of this." we offer them
`
`sampies, and they make their purchase.
`
`fwe carry over
`
`50, 60 different kinds of items.
`
`Q.
`
`Here in the Iast State Fair in October of
`
`2001, did you se11 je11y beans of that type?
`
`A.
`
`No, no.
`
`we had Je11y Be11ies the year
`
`before, but the saies just didn't merit.
`
`Q.
`
`Okay. what was the next preceding year that
`
`you did actuaiiy se11 je11y beans?
`
`A.
`
`It cou1d have been three years ago.
`
`I don't
`
`know for sure.
`
`I rea11y don't.
`
`
`
`Q.
`
`A.
`
`Do you reca11 what space that was in?
`
`If I did,
`
`I probab1y did it in the Grand
`
`Place and the Embarcadero Buiiding because they're
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`
`JOHN GLOWINKOWSKI
`
`7/10/02 J
`
`11
`
`-A
`
`OLO®\lO3U'!-50010
`
`Iarger disp1ay areas.
`
`0.
`
`I have an exhibit marked FF.
`
`I'11 hand it to
`
`you and ask you if you can identify it.
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`And what exhibit space is that for?
`
`086, and the bui1ding is Grand ?1ace,'space
`
`number 11.
`
`0.
`
`Okay.
`
`I now hand you another exhibit marked
`
`GG and ask you to identify it.
`
`A.
`
`Yes,
`
`I can.
`
`It's contract number 087 at
`
`Craft Pavi1ion, space number 2.
`
`0.
`
`Okay.
`
`And during the fair, do you operate in
`
`a11 three spaces?
`
`Do you have a vendor stand set up
`
`Yes.
`
`-- a11 three spaces?
`
`Yes.
`
`And among the various food items that you
`
`in --
`
`A
`
`Q A
`
`.
`
`Q
`
`se11 or you offer to the pub1ic there, candies is one
`
`of those items.
`
`Is that correct?
`
`A.
`
`0.
`
`Yes.
`
`I'd Iike you to turn to paragraph 27 on page
`
`five of the exhibit.
`
`I'd Iike for you to verify that
`
`
`
`
`
`page -- that paragraph 27 is identica1 on a11 of these
`
`exhibits, it's the same provision.
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`7/_10/o2 '
`12
`
`JOHN GLOWINKOWSKI
`
`
`
`.—\
`
`O(0m\lO'JO'I-b-OOl\)
`
`MR. COVERT:
`
`Excuse me, Mr. Griggs,
`
`I
`
`didn't get a page five on contract 087.
`
`‘
`
`MR. GRIGGS:
`
`I didn't either.
`
`I'11 have
`
`to -- okay,
`
`I'T1 have to make that copy.f
`
`0.
`(BY MR. GRIGGS) Let's Took at page five of
`Exhibit EE, paragraph 27.
`And that heading,
`I‘TT read
`
`for the record,
`
`is "Trademarks." Have you read this
`
`paragraph before?
`
`A.
`
`Q.
`A.
`
`Uh-huh.
`
`And what does it say?
`weTT, it's basicaT1y, you know! that State
`
`Fair has the right to the term Big Tex and registered
`
`State Fair Togo.
`
`Q.
`
`Okay.
`
`And do you see where it mentions Big
`
`Tex and Big Tex figure?
`
`A.
`
`Q.
`
`Yes.
`
`And what is your understanding of what Big
`
`Tex and the Big Tex character, or figune, means?
`
`A.
`
`It's a representative trademark of the State
`
`Fair of Texas.
`
`%
`
`And the figure refers to what?
`
`Big Tex,
`
`the guy outside in the jeans.
`
`And where does he stand?
`
`He stands in front of the Grand PTace.
`
`Is that the main entrance toithe State Fair?
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWINKOWSKI
`7/10/o2 5
`13
`
`‘.4
`
`A.
`
`Yes, but the bui1ding right adjacent to it is
`
`
`
`the Grand Piace.
`
`CD(.O0.'>\lO)O1-I>LOl\J
`
`Q.
`
`So wou1d you say that visitors attending
`
`State Fair wouTd pass right by him?
`
`A.
`
`Oh, sure.
`
`him.
`
`They go out of their way to see
`A
`
`Q.
`
`To your know1edge are there sighs around the
`
`state fairgrounds that say "Big Tex," or is the image
`
`of Big Tex disp1ayed other than the character,
`
`the
`
`cowboy figure?
`A.
`I guess I don't pay enough attention, but
`
`I
`
`definite1y notice Big Tex.
`
`I mean, he's right there.
`
`Q.
`
`Okay. You've seen the statue before?
`
`Right, right.
`
`And have you ever heard him speak?
`
`Yes.
`
`what's your understanding of what it is that
`
`he's saying or who's saying it for him?
`A.
`I don't know who's saying it for him, but
`he's basica11y saying he's Big Tex, and he te11s the
`
`peop1e what's going on that particular day at the
`fairgrounds and to visit this exhibit and so on and so
`
`forth.
`
`Q.
`
`Have you ever heard him mention anything
`
`about
`
`the services that are provided by State Fair to
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWINKOWSKI
`7/ 10/02
`I
`14
`
`._\
`
`OCOCO\lO5U1-hulk)
`
`the visitors?
`
`A.
`
`Q.
`
`Yes.
`
`And what are some of those services that are
`
`mentioned?
`
`A.
`
`I mean, off the -- Tike the automobile
`
`exhibit. There's such-and-such vehicies today, you
`
`know,
`
`aT1 the speciai
`
`-- he just constantiy speaks,
`
`but
`
`I don't pay that much attention.
`
`Q.
`
`Do you recaT1 ever hearing either a Tive
`
`announcement
`
`through the Big Tex statue or a recorded
`
`message, a recorded announcement, mentioning food
`
`services of State Fair?
`
`A.
`
`Q.
`
`That,
`
`I can't --
`
`I don't know."
`
`Mr. Giowinkowski,
`
`in your vendor stands -— do
`
`refer to them as vendor stands?
`
`A.
`
`Q.
`
`Yes.
`
`when you're se11ing -- on the occasions that
`
`have soid je11y beans, how are they identified?
`
`A.
`
`with the 1abe1s, stating how much they cost
`
`what
`
`they are.
`
`0.
`
`Okay.
`
`I hand you what's marked as Exhibit HH
`
`ask you to identify that.
`
`A.
`
`A11 right.
`
`It's Big Tex je11y beans,
`
`some of
`
`
`
`products we've soid here before.
`
`0.
`
`And what is this? what is it?
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
` 1
`
`JOHN GLOWINKOWSKI
`
`7/10/02 h
`
`15
`
`A
`
`‘A.OCOCD\IO3U145OJN
`
`—8
`
`.4
`
`_\ K)
`
`_.L 00
`
`._x -5
`
`._x U1
`
`..L CD
`
`_.x \I
`
`._x ®
`
`_x (O
`
`N O
`
`l\) _x
`
`N M
`
`[O 00
`
`|\) -P
`
`l\) 01
`
`what is it? It's a Iarge je11y bean.
`
`No. what
`
`is the card for?
`
`How is it used?
`
`The card is disp1ayed in front of the bin
`
`O.
`
`A.
`
`te11ing the pub1ic what the product is. This one says
`
`"Je11y Beans " And we put it right in front of it so
`
`peop1e know what it costs them and what it is.
`
`Q.
`A.
`
`Okay.
`Is it taped onto something, or is --
`It's taped -- it's taped right on front of
`
`the bin.
`
`Is it taped onto the bin --
`
`Uh-huh.
`
`-— or on the wa11 or --
`
`No. Onto the bin.
`
`Onto the bin in which je11y beams are --
`
`-- disp1ayed.
`
`-— disp1ayed?
`
`If it's Gummi Bears, we put the Gummi Bear
`
`1abe1 in front of it; if it's cashews, it's the cashew
`
`1abe1.
`
`Q.
`
`who are typica11y -- Mr. G1owinkowski,
`
`typica11y, who are the types of customers that buy
`je11y beans or candy products at your vendor stands?
`
`A.
`
`There's no typica1 person.
`
`I mean, it's from
`
`kids 10 to 12 years 01d up to senior citizens.
`
`It's
`
`just an average crowd that purchases our products.
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`
`
`

`
`
`JOHN GLOWTNKOWSKI
`7/10/02 I
`16
`
`—L
`
`CDCOWKIODU1-l>0Jl\)
`
`Q.
`
`Mr. Giowinkowski, are you under contract with
`
`State Fair for the 2002 State Fair?
`
`A.
`
`Q.
`
`Yes.
`
`And have you signed an agreement yet with
`
`State Fair?
`
`Yes.
`
`For how many spaces wi11 you operate your --
`
`Three.
`
`Are you going to offer je11y beans this year?
`
`Maybe.
`If we wi11, it wi11 be Je11y Be11ys.
`what is a Je11y Be11y?
`I
`
`It's a sma11 -- to me, it's a better qua1ity
`
`product if it's a sma11 je11y bean, butfit's -- the
`
`fruit f1avors are very distinct as far as the cherry
`
`f1avor,
`
`so that peopie prefer that to others.
`
`Q.
`
`I'd iike to ask you to reca11,
`
`if you can,
`
`a
`
`date of a particuiar State Fair year in which you're
`
`certain that you so1d je11y beans.
`
`A.
`
`I can't do it.
`
`I don't know that, but
`
`I know
`
`we have.
`
`Q.
`
`But can you say for the record that you've
`
`ever so1d je11y beans at --
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`-- the State Fair of Texas?
`
`Yes,
`
`I have.
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWINKOWSKI
`7/10/02 J
`17
`
`
`
`-3
`
`OCDCD\lC)U‘l-b0Jl\)
`
`Do you recaT1 any particu1ar year?
`
`A.
`
`The '80s is the most that I can reca1T
`
`because, Tike I said,
`they were popu1ar then.
`I'm
`sure that's when we had the Big Tex jeT1y beans.
`
`Q.
`In recent years can you reca11 a particuTar
`year in which you offered jeTTy beans?
`{
`
`A.
`
`Not
`
`in a particu1ar year, no, but
`
`I know I
`
`have so1d them maybe three years ago.
`
`I can't
`
`--
`
`Q.
`A.
`
`Okay.
`we have such a Targe variety that we carry.
`
`And I just Took back in the previous year, and if it
`
`didn't pan out
`
`too weT1,
`
`then we just take it off.
`
`Q.
`Okay.
`And what is the price per pound? when
`a customer buys jeT1y beans, what is it typica1Ty? Or
`
`what was it Tast year?
`
`A.
`
`Q.
`
`I didn't have it at the fair last year.
`
`Or the Tast
`
`time you so1d it.:
`
`A.
`It fiuctuates.
`It aT1 depends on whose it
`is. Here, you can see 4.98 a pound.
`V
`
`This is --
`
`That one is 4.98 a pound. That was a whi1e
`
`Q.
`
`A.
`
`back.
`
`MR. GRIGGS:
`
`The witness'is referring to
`
`Exhibit HH that shows on its face it's5$2.49 per ha1f
`
`pound.
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWTNKOWSKI
`7/10/02 E
`18
`
`
`
`-8
`
`_O(D0O\lO3U1-l>0DM
`
`Q.
`
`A.
`
`Q.
`
`(BY MR. GRIGGS)
`
`Is that correct?
`
`Right.
`
`I
`
`Are you aware or do you know if any other
`
`State Fair vendors carried je1Ty beans or that type of
`
`product during the State Fair?
`
`A.
`
`Q.
`
`A.
`
`This past year?
`
`Yes.
`
`During the past year,
`
`I
`
`think so. There was
`
`I
`a bui1ding right behind the Embarcadero Buiiding.
`can't think of it right now. There's quite a few food
`vendors that carry candy products, and I can't be
`
`positive, but I'm pretty sure they carried jeTTy
`
`beans.
`
`Do you happen to know who was aeiiing or who
`Q.
`was under contract with State Fair prion to you taking
`
`over in 1979 or
`
`'78, back in the '70s that you
`
`referred to?
`
`i
`
`A.
`
`No. Prior to -- there were other vendors
`
`se1Ting candy and fudge, but
`
`I cou1dn‘t
`
`teT1 you who
`
`they are.
`
`Q.
`
`Okay.
`
`And the bags in which the je11y beans
`
`are given to the customers -- are they bags, or are
`
`they open paper containers?
`
`A.
`Q.
`
`They're bags.
`Are the bags marked with any ibentifying
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWYNKOWSKI
`7/10/02 E
`19
`
`MR. GRIGGS:
`
`I have no further
`
`questions.
`
`I pass.
`
`(10:26 a.m.)
`
`MR. COVERT:
`
`I'm afraid I'm going to
`
`butcher your Tast name.
`
`EXAMINATION
`
`BY MR. COVERT:
`
`Q.
`
`Mr. G1owinkowski
`
`--
`
`G1owinkowski.
`
`Q.
`
`Mr. GTowinkowski, my name is Caml Covert, and
`
`I represent Judson-Atkinson.
`
`A.
`
`Q.
`
`Okay.
`
`I've just got a coupTe of questions to ask
`
`you if I cou1d see your --
`
`This?
`
`Yes.
`
`It is Exhibit HH.
`
`Uh-huh.
`
`And it says,
`
`"Big Tex Je11y Beans $2.49 per
`
`A.
`
`Q A
`
`.
`
`Q
`
`
`
`—.l
`
`CD(D®\lO3U1-D-(.aOI\)
`
`ha1f pound."
`
`Do you reca11 where this sign was and when
`
`this sign was disp1ayed?
`
`I
`
`A.
`
`It's been -- Tike I said, it was in the '80s
`
`when I was rea1Ty into je1Ty beans.
`
`I'm sure that's
`
`
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWINKOWSKI
`7/10/02 &
`20
`
`
`
`._L
`
`OCDm\103(J'l-50010
`
`when they were soid.
`
`I haven't so1d that particuIar
`
`Big Tex jeIIy bean in quite a whi1e.
`
`Q.
`
`Do you know the manufacturer of that Big Tex
`
`je11y bean?
`
`A.
`
`Q.
`
`Judson-Atkinson.
`
`And do you reca1T if this je11y,bean was ever
`
`so1d on the premises here at the State Fair?
`
`?’P?’F’?’°?’°>
`
`Yes, it was.
`
`You're abso1ute1y sure of that?.
`
`I'm abso1ute1y sure.
`
`But you're not sure of the year?
`
`No,
`
`I'm not.
`
`And you're not sure of how Iong it was soid?
`
`You mean how many years?
`
`How many years.
`
`No,
`
`I can't honestiy te11 you that.
`
`I don't
`
`know.
`
`I know we've had them here because I
`
`remember
`
`that, but
`
`I can't te11 you when.
`
`Q.
`
`wouid you reca11 if you ever soid any of the
`
`je11y beans themse1ves?
`
`I mean, you may have had them
`
`Iisted, but did you ever make any saies to peop1e?
`A.
`Oh, yes, abso1ute1y. we've had them in our
`
`stores too. we've had stores in the area ma11s, and
`
`
`
`we've had the product.
`
`Q.
`
`Now, you didn't do this in controversion of
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWINKOWSKI
`7/10/02 5
`21
`
`your agreement which says that you're not supposed to
`
`be using the Big Tex name.
`
`Is that correct?
`
`A.
`
`when I did this, which was back in the '80s,
`
`I didn't even know I couTdn't use it.
`
`I didn't know
`
`if I cou1d or cou1d not use it.
`
`I just did it because
`
`it was on the box.
`
`MR. COVERT:
`
`I have no other questions.
`
`(10:28 a.m.)
`
`MR. GRIGGS:
`
`I'd Tike to ask a fo1Iow-up
`
`-3
`
`O<OCX>\lO'>U‘I-R-0Jl\)
`
`question, piease.
`
`BY MR. GRIGGS:
`
`FURTHER EXAMINATION
`
`Q.
`
`In your use in the '80s,
`
`in particular this
`
`card, was that in connection with State Fair?
`
`A.
`
`Q.
`
`I had no thought about it.
`
`Have you ever used this card at.any time in
`
`connection with the sa1e of je11y beans on State Fair
`
`grounds?
`
`A.
`
`Q.
`
`happened?
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`And can you teTT us the year in which that
`
`No.
`
`we11, can you teI1 us --
`
`It's been -- I'm sorry.
`
`I didn't mean to
`
`interrupt.
`
`CAROL ERNST. CSR
`Metro (817) 975-5009
`
`

`
`
`
`JOHN GLOWINKOWSKI
`
`7/10/02
`
`22
`
`
`
`—-X
`
`C>(OCD\lO)U1-h(.OI\J
`
`Cou1d you te11 us the decade?
`
`A.
`
`It's probab1y in the '80s.
`
`It cou1d be earTy
`
`'90s too,
`I'm not sure.
`I wou1d say in the '80s
`because definite1y -- Iike I said,
`that's when je11y
`
`beans were popu1ar.
`
`questions.
`
`MR. GRIGGS:
`
`I have no further
`I
`
`MR. COVERT:
`
`And I have nothing.
`
`Thank
`
`(Break from 10:28 a.m.
`to 10:31 a.m.)
`MR. GRIGGS:
`Back on the necord.
`I'11
`
`ask counse1 if counse1 wiT1 agree that these exhibits
`
`that have been introduced are authentic or if you have
`
`any objection or cha11enge to them.
`
`MR. COVERT: Okay.
`I have no objection
`to Exhibit FF, GG, EE, but
`I wouTd have an objection
`
`to HH.
`
`incomp1ete?
`
`MR. GRIGGS:
`
`Is that the one that's
`
`MR. COVERT:
`No.
`that's incomp1ete is -- okay.
`
`I'm sorry.
`GG I wound have an
`
`The one
`
`objection to because it's incomplete. we require page
`
`five.
`
`
`
`MR. GRIGGS:
`
`A11 right.
`
`'We can get
`
`you —— if I give you a photocopy of page five, wiIT
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`
`JOHN GLOWTNKOWSKI
`
`7/10/02
`
`23
`
`
`
`
`
`—L
`
`CD(DCD\lO)(J'lJ>0Ol\J
`
`that satisfy your objection?
`
`MR. COVERT:
`
`That wou1d satisfy my
`
`objection, yes.
`
`MR. GRIGGS:
`
`As soon as we're done here,
`
`1'11 get you a photocopy.
`
`MR. COVERT:
`
`Then that woufid be fine.
`
`MR. GRIGGS:
`
`A11 right.
`
`MR. COVERT:’
`
`And I wou1d have an
`
`objection to Exhibit HH, which is the "Big Tex JeTTy
`
`Bean $2.49."
`
`I don't think he was c1ear enough in
`
`saying if this was the exact 1abeT.
`
`So'I wou1d object
`
`to that.
`
`MR. GRIGGS:.
`
`Okay.
`
`(Deposition concTuded at 10:32 a.m.)
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`
`JOHN GLOWINKOWSKI
`
`7/10/02
`
`24
`
`CORRECTIONS AND SIGNATURE
`
`LINE
`
`CHANGE
`
`REASON
`
`—_X
`
`CD(O®\lO‘)U‘I-l>-0Jl\)
`
`
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWINKOWSKI
`7/10/02 '{
`25
`
`I,
`
`JOHN GLOWINKOWSKI, have read the foregoing
`
`deposition and hereby affix my signature that same is
`
`true and correct, except as noted above..
`
`JOHN GLOWINKOWSKI
`
`THE STATE OF TEXAS)
`
`COUNTY OF
`
`)
`
`Before me,
`
`, on this day
`
`personaiiy appeared JOHN GLOWINKOWSKI, known to me
`
`(or
`
`proved to me under oath or through
`
`)
`
`(description of identity card or other document)
`
`to be
`
`the person whose name is subscribed to the foregoing
`
`instrument and acknowiedged to me that they executed
`
`the same for the purposes and consideration therein
`
`expressed.
`
`Given under my hand and sea1 of office this
`
`day of
`
`, 2002.
`
`Notary PubTic in and for the State of Texas
`
`—L
`
`C)(D®\lCDO'I-l>0Ol\)
`
`_A
`
`_A
`
`._l
`
`...x K)
`
`.3 00
`
`._x -5-
`
`._x U1
`
`_x C)
`
`._x N
`
`_.x
`
`(D
`
`_x (0
`
`l\) O
`
`N ..x
`
`l\) IO
`
`l\) 00
`
`l\) -I3
`
`l\) 0'!
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`
`
`

`
`
`
`JOHN GLOWTNKOWSKI
`
`7/10/02 ;
`
`26
`
`
`
`STATE
`
`OF
`
`TEXAS )
`
`COUNTY OF TARRANT )
`
`REPORTER'S CERTIFICATE
`
`ORAL DEPOSITION OF JOHN GLOWINKOWSKI
`Juiy 10, 2002
`
`I, Caro1 Ernst, RPR, Certified Shorthand Reporter
`
`in and for the State of Texas, do hereby certify that
`there came before me on the 10th day of duiy, 2002,
`in
`
`the offices of State Fair Administration Buiiding,
`
`Fair Park,
`
`Iocated at 3921 Martin LutherrKing
`
`Bou1evard,
`
`in the city of Da11as, County of Da11as,
`
`State of Texas,
`
`the fo11owing named person,
`
`to-wit:
`
`JOHN GLOWINKOWSKI, who was du1y sworn to testify the
`
`truth concerning the matters in controversy in this
`cause; and that the examination was reduced to writing
`
`by computer transcription under my supervision;
`
`that
`
`_the transcript is a true record of the testimony given
`
`by the witness, and signature of witness is to be
`
`before any notary public.
`
`I further certify that I
`
`am neither attorney or
`
`counse1 for, nor reiated to or empioyedfby, any of the
`
`parties to the action in which this hearing is taken,
`
`and further that I
`
`am not a re1ative orjempioyee of
`
`
`
`any attorney or counse1 empioyed by the parties
`hereto, or financiaiiy interested in the action.
`
`CAROL ERNST, CSR
`Metro (817) 975-5009
`
`

`
`
`JOHN GLOWINKOWSKI
`7/10/02 1
`27
`
`Given under my hand and sea1 of office on
`
`July 19, 2002.
`
`(M4600;/5
`
`Caro] Ernst, CSR, RPR, No. 5666
`‘Expires 12/31/O3_
`I,
`H
`5009 Came1ot Drive
`‘
`Co11eyv111e, Texas 76034
`~ Metro (817) 975-5009g
`Fax (817) 354-0457
`
`A
`
`Taxab1e Cost:
`
`$
`
`._L
`
`<DCO(D\lO)O"I-l>ODl\)
`
`_x
`
`.3 ..L
`
`_\ K)
`
`...\ O3
`
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`CAROL ERNST, CSR
`Metro (817) 975-5009
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`EXHIBITS CONTRACT
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`STATE FAIR or TEXAS
`P.O. Box 150009
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`Dallas, TX 75315
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`- No. 035
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`This Exhibits Contract (hereinafter “Contract”) is entered into by and between the STATE FAIR OF TEXAS (hereinafier
`“State Fair”), a Texas not-for-profit corporation, and
`Dallas Co.. Inc. dba Frontier Fruit & Nut Company
`(hereinafter
`“Lessee—Exhibitor”). For and in consideration of the mutual promises contained herein and intending to be legally bound, the
`parties agree as follows:
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`LESSEE-EXHIBITOR:
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`DALLAS CO.. INC. DBA FRONTIER FRUIT & NUT COMPANY
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` Mailing Address: I 4 Red Oak Ct.. Mansfield TX 76063
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`Federal Income Tax Identification No.: 7571713277
`Product/Service to
`dried fruits nuts trail mixes candies
`be Exhibited:
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`Area or
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`Building: Embarcadero
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`Size:
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`180 sg. ft.
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`Space No./s: 43
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`. 3:‘ 3.42000
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`TOTAL RENTAL FEE .
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`Jeposit (due upon execution of Contract)
`Balance Due
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`. $ 1,710.00
`. ..$ 1 710.00
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`This Contract is subject to cancellation by State Fair, without further notice, if the total rental fee is not paid in full by
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`Lessee~Exhibitor on or before July 4 2001. After said date State Fair reserves the right to reassign contracted space at its sole
`discretion; and, if total rental fee is not paid, then this Contract shall become voidable at the sole option of State Fair.
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`RULES AND FEES: This Contract is made subject to the Rules and Regulations of the Exhibits Department of State
`1.
`Fair, all of which are made a part hereof for all purposes, as though copied fully herein. The rental fee payments specified above
`and payable hereunder shall be considered the total amount payable hereunder, and no deductions or allowances therefrom shall
`be allowed Lessee-Exhibitor, except as may be specified herein below. State Fair shall have no obligation to pay any
`commissions or other compensation to any advertising agency or other representative of Lessee-Exhibitor.
`’
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`TERM: State Fair will host the 2001 State Fair ofTexas® (“the Fair”) in Fair Park, Dallas, Dallas County, Texas from
`2.
`Friday, September 28, 2001, through Sunday, October 21, 2001. The termtof this Agreement shall be from the date of execution
`of this Agreement by all parties through Sunday, October 21, 2001; provided, however, that it is specifically agreed that the
`above—named Exhibit shall be on the grounds ofFair Park and available for inspection by State Fair so as to be ready for operation
`by call time on Opening Day of the Fair. State Fair shall allow Lessee-Exhibitor a reasonable amount of time following the
`termination hereof, not to exceed three (3) days, to remove any "equipment belonging to Lessee-Exhibitor from the location.
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`EXHIBITS CONTRACT - Page 1 of 6
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`A
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`Exhibitsol-2 /1: oz
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`EXHIBIT NO....£_g_
`/7
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`

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`0 Before "June I5, 2001
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`50% of rental fee paid will be refunded
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`CANCELLATION AND WITHDRAWAL: Should Lessee-Exhibitor, for any reason whatsoever, cancel or revoke this Contract,
`3.
`State Fair shall not be liable to Lessee-Exhibitor for any refund of rental fees paid, except as stated in the cancellation schedule herein b¢[ow_
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`I N NOTICE OF CANCELLATION RECEIVED BY STATE FAIR: ~
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`After June 15, 2001
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`. No refund of rental fee
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`Contracted space may be reassigned by State Fair
`Contract is voidable at option of State Fair
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`MERCHANDISE: Prior to entry onto the fairground premises under this Contract, Lessee-Exhibitor shall? submit to-the Director
`4.
`of Exhibits of State Fair (hereinafter “Director") a written, detailed statement describing the products, goods, services, and/or merchandise
`Lessee—Exhibitor intends to exhibit, sell or otherwise distribute. No products, goods, services or merchandise of any kind may be exhibited,
`sold or distributed until the Lessee-Exhibitor has first obtained the prior written approval of the Director. Notwithstanding such prior written
`approval, any deviation by Lessee-Exhibitor from the above required detailed statement shall be grounds for tenuination of this Contract by
`State Fair.
`‘
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`The Lessee-Exhibitor shall in no manner whatsoever be granted an exclusive right to exhibit, sell or distribute the products herein
`described and it is understood and agreed by the Lessee-Exhibitor that State Fair may at any time permit other Lessee-Exhibitors to exhibit,
`sell or distribute the same or similar products. Lessee-Exhibitor shall not give, sell, or otherwise distribute any item. which will in any way
`conflict with or which may be the subject matter of any privilege or concession which maybe granted or sold by'State Fair (for example, but
`not limited to: hats, balloons, t-shirts, or bumper stickers), unless a sample thereof is submitted to the Director, and prior written approval for
`the sale or distribution of such item is obtained by Lessee-Exhibitor. State Fair shall have sole and absolute discretion in allowing or
`disallowing the sale or distribution of any items.
`'
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`EXHIBIT OPERATION AND PROPERTY DAMAGE: Eachexhibit shall be constructed in a good and workmanlike manner and
`5.
`shall be maintained in an orderly, sanitary and safe condition by the Lessee-Exhibitor during the Fair. An attendant MUST be on duty in booths
`at all times when building is open to the public, and booths shall remain in place and staffed until 10:00 p.m. (all times C_I.S.T.) of the last day
`of operation ofthe Fair.
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`In addition, Lessee-Exhibitor shall obtain, priorto entering the fairgrounds under this Contract, and shall furnish to the Director proof
`“ insurance to cover any and all losses to Lessee-Exhibitor's structure or booth, goods, merchandise, and any other material which may
`‘.mprise all or any part of Lessee-Exhibitor's exhibit o_r display, whether such loss be the result of fire, theft, burglary, malicious mischief,
`natural disaster, or accident. Failure of Lessee-Exhibitor to obt