IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`In The Matter of Application Serial "Nos. 76/103,447 and 76/] 03,448
`Published In The Official. Gazette of May 22, 2001
`and April 24, 2001, Respectively
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`Mark: I-IYPERSONIC
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`...................................................--x
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`Central Mfg. Co.,
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`- against-
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`Paramount Parks I'nc.,
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`Opposer,
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`:
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`Opposition No. 123,765
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`Applicant.
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`_-_______-__-_______-__-_____-__-_____-__-_______-__-_x
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`0
`BOX TTAB
`NO "FEE
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`Assistant Commissioner for Trademarks
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`2900 Crystal Drive
`Arlington, Virginia 22202-3513
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`— —--
`MWWWWWWWWW
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`-
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`07-09-2004
`U.S,Pa13nt& TMOfcITM Mail Heat Dt- #22
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`Applicant’s Memorandum in Opposition to
`O]:_aQoser’s Second Summag Judgment Motion
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`Applicant Paramount Parks Inc. ("Paramount") submits this memorandum of law in
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`opposition to Opposer Central Mfg. Co.’s (“Central”) second motion for summary judgment, filed
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`June 7, 2004, and its seventh motion in the past three months.
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`On March 9, 2004, the Board denied Opposer’s motion for summary judgment
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`filed on October 15, 2002. Since then, Opposer has filed: (1) a motion for reconsideration of the
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`Board’s March 9, 2004 Order (pending); (2) a motion to amend its Notice of Opposition
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`1
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`I
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`07-09-2004
`u.s. Puma TMotc.'1'M mil ficvtot #22
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`(pending); (3) a motion to compel depositions of key officers of Paramount’s parent company
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`(denied by the interlocutory attorney); (4) a motion to withdraw its motion to compel based on a
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`misrepresentation of Paramount’s objections (denied by the interlocutory attorney); (5) an
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`“objection” to Paramo'unt’s request to have Opposer’s motion to compel decided by telephonic
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`conference (denied by the interlocutory attorney); (6) a motion to extend the discovery deadline
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`based on a health condition suffered by Opposer’s principal, Leo Stoller (subsequently
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`withdrawn‘); and (7) the instant summary judgment motion.
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`During this same time period, Paramount endeavored to keep discovery on track
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`and to conclude discovery by the June 11, 2004 deadline set by the Board (the discovery period in
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`this proceeding opened on September 27, 2001, but has been suspended on several occasions by
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`potentially dispositive motions filed by Central). As set forth in the accompanying declaration of
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`Lacy H. Koonce, 1111, Paramount now has taken the deposition of Mr. Stoller and, at the same
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`time and place, took the deposition of a third-party fact witness, Raymond Weber. Koonce Afi’ t,
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`11 3. After numerous demands by Paramount, Central finally produced approximately 165 pages
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`of documents in response to Paramount’s document requests, served November 5, 2001, of which
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`155 pages consist of a purported “customer list”.
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`Id.
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`Central still has not responded to numerous demands for documents and
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`information made at Mr. Sto1ler’s deposition, despite repeated requests therefor. Koonce At-‘F’ t, 1]
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`6. Paramount also has requested that Central supplement its written responses to interrogatories
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`1 Opposer asked Paramount to stipulate to an extension of time, stating that Mr. Stoller had suffered a minor heart attack
`and thus Central could not respond to outstanding discovery requests within the required time period. Paramount agreed
`to such an extension but — given the long delay in concluding discovery in this proceeding and the numerous outstanding
`requests for discovery made of Opposer — asked that Opposer provide a statement as to Mr. Stoller’s medical condition
`that could be annexed to the stipulation. Upon receiving this request, Opposer instead filed a motion for an extension of
`time and (mis)represented to the Board that Paramount had I'Cfi]S€d to agree to an extension. Opposer then proceeded to
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`2
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`because of clear deficiencies therein, but Central has refused to do so. 1d,, ‘[1 7. Paramount, by
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`contrast, has produced over 2000 pages of documents as part of a supplemental document
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`discovery in view of its ongoing discovery obligations, in addition to the voluminous documents it
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`produced in the fall of 2001. Paramount has also produced confidential documents previously
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`withheld, in light of the protective order imposed by the Board. Id., M 3-4.
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`Now, on an incomplete evidentiaiy record, Central moves yet again for summary
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`judgment and to dismiss Paramount’s counterclaim for abandonment on what it terms “numerous
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`grounds”, but it argues only that Paramount’s mark is confusingly similar to Central’s mark; that
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`Central has priority of use and continuous use on similar, competitive and related goods; and that
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`there has been a single instance of alleged actual confusion. The entirety of Central’s evidence
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`consists of wholly unspecified portions of the deposition transcripts of Leo Stoller and Raymond
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`Weber (a close friend of Stoller) along with: a “Hypersonic Brand Sales and Advertising Report”
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`containing alleged sales figures for which Central admittedly has no backup or further
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`substantiation; a list of businesses to which Central allegedly markets its products but for which it
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`has no proof of such marketing whatsoever; and Hypersonic catalog and sales quote sheets with
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`no backup or proof that they have ever been used for any purpose. See Opp. Memo, pp. 3-4.
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`In denying Opposer’s earlier summaryjudgment motion, the Board stated:
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`In View of the facts that (1) applicant has filed a counterclaim to
`cancel opposer's pleaded registration based on a claim of
`abandonment and (2) there are no documents in support of
`opposer's motion for summary judgment establishing that opposer
`has ever used its pleaded I-IYPERSONIC mark in commerce, a
`genuine issue of material fact exists as to whether opposer has
`standing to maintain this proceeding.
`In addition, at minimum,
`genuine issues exist as to whether the goods at issue are related in a
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`draft and file the instant summary judgment motion, in which it purports to withdraw its request for an extension of the
`discovery period, without explanation. See Koonce AIT’ t, 1]1[ 8-9.
`3
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`manner that would cause prospective purchasers to have a mistaken
`belief that they come from the same source, and as to whether
`applicant's intended use of the mark on the goods would constitute
`use in commerce.
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`Order of March 9, 2004, pp. 6-7. The Board noted further that “[t]he fact that we have identified
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`only a few genuine issues of material fact as sufficient bases for denying the motion for summary
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`judgment should not be construed as a finding that these are necessarily the only issues that
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`remain for trial.” Id. at 7 n.9, Opposer has provided no documentary proof that it has used the
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`HYPERSONIC mark, and the unsupported deposition testimony of Stoller is insufficient to carry
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`Opposer’s burden for summary judgment purposes. ParaInount’s independent investigation of
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`Opposer’s claim that it uses the HYPERSONIC mark has revealed no such use. Opposer also has
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`failed to point to any evidence supporting the other allegations of its Opposition, such as
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`likelihood of confusion, and in particular whether the goods are related in such a way that
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`prospective purchasers would believe that they come from the same source. We address the
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`Opposer’s failure to meet its burden of proof on this motion in brief below.
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`ARGUMENT
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`On a motion for summary judgment, it is the movant’s burden to demonstrate the
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`absence of a genuine issue of material fact as to any of the necessary elements of rnovant’s claim.
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`Cincinnati Ins. Co. v. Flanders Elec. Motor Serv., Inc, 40 F.3d 146, 150 ('/‘"1 Cir. 1995).
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`Summary judgment is improper where the evidence is such that a reasonable finder of fact could
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`return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc, 477 U.S. 242, 248
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`(1986). Further, “the evidence must be viewed in a light most favorable to the non-movant, and
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`all justifiable inferences are to be drawn in the non-movant’s favor.” Lloyd ’s Food Products Inc.
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`v. Eli ‘S Inc., 987 F.2d 766 (Fed. Cir. 1993). In this case, Central bears the burden of showing
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`that there are no issues of fact precluding summary judgment on its claims of priority of use and
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`likelihood of confusion. It also bears the burden of demonstrating that there is no factual basis for
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`Paramount’s counterclaim for cancellation (that is, that based on the record evidence, Paramount
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`cannot prove that Central has abandoned its HYPERSONIC mark). See Celotex Corp. v. Catrett,
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`477 U.S. 317, 323(l986) (movant entitled to judgment as a matter of law because “nonmoving
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`party has failed to make a sufficient showing on an essential element of [its] case with respect to
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`which [it]has the burden of proof”). Contrary to Central’s assertion that its purported evidence
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`of use of the HYPERSONIC mark is “unrefined”, there are disputed issues of fact with respect to
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`each and every element of Centra1’s claims of priority and continuity of use, and with respect to
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`Paramount’s counterclaim for cancellation by reason of abandonment.
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`Central’s evidence of use of the HYPERSONIC trademark is wholly illusory. The
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`only shreds of evidence of use consist of self-serving and unsubstantiated statements by Central’s
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`president, Leo Stoller, and a personal friend of Stoller, Raymond Weber, who also claims to be an
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`occasional customer of Central. Weber Tr., pp. 25-26, 39. Even if Weber were a credible
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`w.itness - which he is not — his testimony of a handful of purchases of supposed Hypersonic
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`products within the state of Illinois does not prove use of the mark in interstate commerce
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`sufficient to justify summary judgment in Central’s favor. Centra1’s evidence of likelihood of
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`confusion fares no better, as the only factor that remotely favors Central is the fact that the marks
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`themselves are identical — but the record evidence demonstrates that they are not used on similar
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`products (either as used, or as described in their respective application or registration) and are not
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`sold in similar trade channels. Moreover, Central’s mark is not famous, there are a number of
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`identical marks on the Register in the marketplace, and there is no substantiated evidence of
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`actual confusion. Finally, the same dearth of evidence of use of the HYPERSONIC mark by
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`Central precludes summary judgment on Pararnount’s counterclaim for cancellation, as there is a
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`clear issue of fact as to whether Central has discontinued use of its mark (indeed, if it ever made
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`any use in the first instance).
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`A case involving one of Leo Stoller’s other companies (S Industries) and another
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`trademark (STEALTH) is on point. In S Industries Inc. v. Stone Age Equipment Inc., 49
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`U.S.P.Q.2d 1071 (N.D. Ill. 1998), the Court analyzed cross-motions for summary judgment on
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`the issues of seniority of use and likelihood of confusion. S Industries presented the following
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`evidence of use: (1) Stoller’s “unsupported assertions” that his companies began using the mark in
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`1984 or 1985; (2) 1986 invoices for sales of shoes which did not indicate what mark the shoes
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`bore; (3) an internal strategy memorandum discussing expanding the STEALTH mark to other
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`products (not mentioning shoes); (4) a 1988 catalog showing two “Stealth” shoes where the font
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`of the STEALTH label was misaligned; (5) “inter-Stoller-company license agreements”; (6) “two
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`affidavits from former Stoller company customers — both of whom surface in other S Industries
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`trademark infringement lawsuits — stating in a conclusory manner that they purchased ‘STEALTH
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`brand’ shoes”; (7) proof fiirnished to a potential licensor purportedly showing use of STEALTH
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`on shoes (including an invoice for sale ofan unbranded shoe, and copies of catalog pages); (8) a
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`license agreement with a third party (Puma); (9) evidence relating to Puma’s planned marketing of
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`a “PUMA Stealth” shoe; (10) a cease and desist letter to defendant; and (1 1) three third-party
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`licensing agreements.
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`Id., at 1079-80. Addressing this evidence, the Court stated that the record
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`“demonstrates a striking absence of proof supporting these claims — most notably, SI’s failure to
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`produce any evidence penrlitting a reasonable jury to find that a STEALTH shoe ever existed,
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`much less reached the public — frequent misrepresentations of the evidence and unsupported legal
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`arguments.” Id., at 1073.
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`The evidence presented by Central on the instant motion falls far short even of the
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`meager proof presented by S Industries in the above case (and certain categories of evidence are
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`remarkably similar thereto). In the S Industries case, the Court held that “[n]one of these items
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`would permit a reasonable jury to find that the Stoller companies or their licensees made
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`continuous, bona fide commercial use of the STEALTH mark on athletic shoes or boots prior to
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`[defendant]’s use.” Id., at 1080. The Court’s analysis with respect to certain of the evidence is
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`instructive, and will be discussed where relevant below in connection with the record evidence in
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`this proceeding.
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`Before turning to the evidence, it is worth noting as a general matter what
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`evidence has not been proffered, and why. Paramount remains unaware of any actual use of
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`Central’s mark, despite due investigation (including a telephonic survey of some of Central’s
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`alleged customers, as discussed below). Koonce Aft’ t, W 15-16. Without question, evidence as
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`to Central’s use of the HYPERSONIC mark, if any, would be within Central’s possession and
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`control. Yet rather than providing purchase orders, invoices, ledgers, or the like which
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`"Paramount might cross-examine to determine whether Central’s claims of use of its mark are
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`valid, Central has produced “evidence” almost entirely in the form of deposition testimony and
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`undated computer print—outs that cannot be independently verified. Central simply cannot refuse
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`to produce evidence substantiating its testimony and then assert that because it has testified as to
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`its use, there are no issues of fact on point. As the Court noted in S Industries Inc. 12. Stone Age
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`Equipment Inc., supra, in granting summary judgment against S Industries:
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`It is apparent that Stoller’s declaration is merely a self-serving
`document without factual support in the record; as such, it cannot
`create a fact issue to withstand summary judgment. .
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`. .Stoller’s
`deposition testimony likewise fails to create an issue of fact as to
`prior use because it is internally inconsistent, flatly contradicted by
`documentary and physical evidence, and uncorroborated. Stoller
`insisted at his deposition that his companies have been selling shoes
`with the STEALTH mark since 1984. He could not locate any
`documents to support this .
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`In light of this evidence, we cannot parse anything together from
`Stoller’s testimony that does more than suggest ‘some metaphysical
`doubt as to the material facts’ .
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`. as opposed to creating a genuine
`issue of fact for a jury. Stoller’s deposition testimony is thus no
`more probative than his conciusory, self-serving declaration, and
`cannot defeat summary judgment [for defendant].
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`49 U.S.P.Q.2d at 1082 (citations omitted). At a bare minimum, Paramount is entitled to have the
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`finder of fact determine the credibility of the unsubstantiated testimony in light of Centra1’s claims
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`of extensive, continuous and profitable use of the HYPERSONIC mark.
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`Beginning with documentary proof, Central points to exhibits annexed to the
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`depositions of Leo Stoller and Raymond Weber, some of which were not produced in discovery.
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`Koonce Aff‘t, 1] 10. The first of these exhibits is a “Sales & Advertising Report”, which
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`purportedly shows total sales and advertising costs for products sold under the HYPERSONIC
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`mark from 1988 to 2003', the aggregate sales for that period are listed as over $385,000, and the
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`aggregate advertising costs are listed as over $55,000.2 Stoller Tr., Ex. 1. This single-page
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`document is the only piece of evidence proffered by Central with respect to its revenues and
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`advertising expenditures; Central has not produced any backup for the numbers in this summary
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`2 This exhibit and certain other of the documents produced by Central in discovery were designated as “Confidential”
`pursuant to the protective order in this proceeding; however, Central submitted all ofthe exhibits to the Stoller and
`Weber depositions in support of its summary judgment motion and did not file them under seal, and thus references to
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`8
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`report, despite requests from Paramount for such backup (Koonce Decl, fil l 1), and has admitted
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`that it has no such information in its possession (Stoller Tr. pp. 40-41). Central also has not
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`produced any corporate tax retums.3 Id, pp. 30-32.
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`When questioned about the Sales & Advertising Report, Central’s president,
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`Stoller first testified that his father prepared the report but has since passed away; however,
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`although his father passed away in November 2003, the “Sales & Advertising Report” shows sales
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`for the entirety of 2003, suggesting it was prepared in 2004.4 Id, pp. 33-36. Stoller also testified
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`that he does not know how the report was prepared or what underlying information was
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`consulted in preparing it, and that the underlying information is unavailable because all purchase
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`orders generated even alter his father’s death have continued to be sent to his father’s house, and
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`he has not made any effort to have the mail forwarded to him.
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`Id. That a business allegedly
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`producing this amount of annual revenue retains no records of sales other than in the aggregate is
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`legally suspect, to say nothing of the fact that its cavalier attitude towards document retention has
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`continued after the initiation of the pending opposition proceeding in which its continuing use of
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`the mark is a crucial factor.
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`In fact, time and again, when asked about business records, Stoller indicated that
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`Central does not have any in its possession, including records for sales, advertising and other
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`alleged uses ofthe mark that Stoller testified have occurred during the three years since this
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`those exhibits are not redacted in this memorandum.
`3 Stoller also admitted at his deposition that Central does not charge a sales tax on its sales. Stoller Tr., pp. 55, 105.
`4 Notably, in S Industries Inc. v. Stone Age Equipment Inc., supra, when faced with plaintifi’s failure to produce shoe
`specimens, corroborative documents or the last names of its employees the Court stated: “Stoller’s excuse is that his
`father and brother ousted him from the business between. 1990-1994, during which time he had no access to the
`documents that allegedly support his testimony. He testified that by the time he regained control, his brother and father
`had disposed of the documents. .
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`. Although the record supports his removal from control, it is no excuse for the lack of
`proof. Stoller brought the lawsuit; he has the burden of locating and turning over adequate proof to sustain it.” 49
`U.S.P.Q.2d at 1082 n.22. I-lere, where Stoller’s father was Working for Central, all records in his possession have been
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`9
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`opposition. was commenced. Indeed, Central. did not retain those records even in light of
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`Pararnount’s document requests served on Central in the fall of 2001, which specifically called for
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`the production of such records. Koonce Aft’ t, 1] 3.
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`Incredibly, when asked why Central has not
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`retained its records, Stoller’s excuse was that he has filed over 50 TTAB oppositions since the
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`instant proceeding was filed:
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`xO>/OI>rO
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`A
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`Q
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`A
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`And when did you commence this opposition?
`This was commenced in — well, I’ll see — in August 16, 2001.
`It was actually commenced earlier than that, but that’s when
`you filed the Notice of Opposition?
`That’s the Notice of Opposition.
`And didn’t you think it was important to retain whatever
`proof you had, if any, with respect to use or licensing of this
`mark given the fact that you were going to file an
`opposition against someone else’s use of the mark which
`you claim is confiising?
`I do.
`I think it was Very important. Unfortunately, what’s
`this, 2004, five years have gone by and a lot of things have
`happened.
`I filed maybe 200 oppositions since that time
`and that particular file is, you know —
`You filed 200 oppositions since the time you filed this o
`pposition?
`Well, maybe not 200, but maybe about more like 50.
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`Stoller Tr., pp. 114-15. This failure to retain such documents — assuming the documents ever
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`existed — would be a flagrant violation of Central’s discovery obligations, which severely
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`prejudices Paramount by making it impossible to evaluate Central’s purported use of the
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`HYPERSONIC mark. See Supreme Oil Company v. Lico Brands, Inc, 39 U.S.P.Q.2D (BNA)
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`1695, (T.T.A.B. 1996) (imposing sanctions for willful destruction of evidence, the Board noted
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`that “[b]y destroying virtually all documentation of petitioner's use of its .
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`.
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`. mark prior to 1993
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`J
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`petitioner has effectively precluded respondent from challenging petitioner's claim of prior use.
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`under Central’s control and accessible at all times, which Stoller concedes. Stoller Tr., pp. 98-99.
`10
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`That is, petitioner's action of destroying its records deprives respondent of its right to evaluate the
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`evidence”) In. light of Central’s spoliation of critical evidence, the Board is entitled to draw every
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`adverse inference against Central. See Felice v. Long Island RR. Co., 426 "F.2d 1.92 (2d Cir.
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`1970).
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`Despite the fact that he is involved in “every aspect” of Ccr1tral’s business (Stoller
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`Tr., pp.38-3 9), Stoller testified that he has no personal knowledge whatsoever of his company’s
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`sales or advertising expenditures (1d., pp. 33-42). With respect to sales of goods, he also was
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`unable to testify as to the underlying cost of the goods sold, the names of all of the manufacturers
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`who provided the goods which Central re-brands with its trademark, or even the most recent
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`annual volume of goods purchased from the manufacturers whose names he could remember (Id.,
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`pp. 23-33). Although he stated that Central generates purchase orders for the goods it buys from
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`such manufacturers, Central has not produced any purchase orders. Id., pp 25-28. He also stated
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`that he has not been able to locate any invoices for the alleged sales of Hypersonic productss Id.,
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`pp. 100-01. Stoller testifi.ed that Central’s sales are principally by mail order (Id., pp. 106-07),
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`and that Central occasionally gets product retums (Ia’., pp.
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`1 17-18), but Central has not produced
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`any UPS, FedEx or other mail receipts, nor any records of returns (Id., p.116). Stoller testified
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`that customers can use Mastercard and Visa to pay for purchases, but that Central has no records
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`of any credit card sales. Id., p. 132.
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`With respect to Stoller’s friend Raymond Weber, Weber conveniently testified to
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`5 In S Industries Inc. v. Stone Age Equipment Inc, supra, S Industries produced invoices, but the Court found that they
`were insulficient as evidence ofuse because they contained no indication that the shoes were branded with the
`STEALTH mark; the Court fitrther noted that even if the invoices contained such a reference, they would not constitute
`use because invoices standing alone “cannot demonstrate trademark use.” 49 U.S.P.Q2d at 1081 (citations omitted).
`11
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`both past purchases of I-IYPERSONIC products from Central, and to his purported “confi.1sion”6
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`when he came across a mention of Paramount’s Hypersonic roller coaster on the Internet.’ Weber
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`Tr., pp. 1-22.
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`Just like Stoller, Weber could not point to any documentary proof of his alleged
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`purchases, and professed to no longer have the items themselves in his possession, or to not be
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`sure of where they are now located. Id., pp. 27, 29, 32. Weber also conceded that he had
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`testified on Stoller’s behalf in two prior proceedings, with respect to different marks. Id., pp. 34-
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`35. Given his relationship with Stoller and his prior testimony, Weber’s deposition testimony must
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`be given little credence. See S Industries Inc. v. Stone Age Equipment Inc., 49 U.S.P.Q.2d at
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`1083-84 (noting almost identical .infirrnities in the testimony of two witnesses for Stoller). Just as
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`in the S Industries case, even if Weber’s testimony were credible, it would not establish trademark
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`use by Central, because the sales were de minimus. 49 U.S.P.Q.2d at 1083. Here, those sales are
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`even less relevant, because they all occurred within the state of Illinois, and thus do not constitute
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`a use in interstate commerce.
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`Stoller was also unable to state Central’s profits in 2003 (Stoller Tr. p. 54), or its
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`profits on sale of products bearing the HYPERSONIC mark in any year (Id., pp.54-55). Nor
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`could he recall what dollar volume of HYPERSONIC goods Central had on hand in its purported
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`6 Stoller also testified as to several telephone calls he received in which the caller allegedly expressed confiision as to the
`HYPERSONIC mark; in typical fashion, Stoller did not retain any notes of such calls. Stoller Tr., pp. 148-49. Not only
`is such evidence inadmissible hearsay, see S Ina‘usm'e.s Inc. v. Stone Age Equipment Inc, 49 U.S.'P.Q2d at 1089-90, it
`is inherently unbelievable: Stoller claims that these unidentified callers “were requesting information as to where the
`park was, where this roller coaster was. They were -- the contents of the conversation was if they could buy Hypersonic
`sports goods —— sporting goods, if they were also sold at the park.” Stoller Tr., p. 148. Stoller also could not place the
`calls in time, stating that Central first became aware of Paramount’s mark because of these calls and then, when shown a
`con llicting statement .in the "Notice of Opposition, recanting his earlier testimony. 1d,, pp. 15-52.
`7 Even ifhis testimony were believable, Weber’s alleged confusion cannot constitute “actual confusion” with the marks
`that are subject of this Opposition because the Internet article contained only a reference to Paramount’s theme park and
`roller coaster, not to Pararnounfs souvenir products sold under the HYPBRSONIC mark. Paramount does have a
`registered design mark No. 76138159 for “Entertainment Services, Namely, an Amusement Park Ride and Attraction" —
`a mark that Central has not challenged — but the two word marks challenged in this Opposition are in different
`International Classes altogether, and are used in connection with the souvenir goods.
`12
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`retail stores (Id., pp. 62-63). He testified that Central sold 10,000 HYPERSONIC T-Shirts
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`beginning in the 19805 and continuing through 2002, but Central has not produced any samples,
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`and Stoller testified that he cannot locate any purchase orders or shipping records of such sales.
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`Id., p. 97. Stoller also testified that Central has sold HYPERSONIC hats, but again Central has
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`not produced any evidence thereof, and his testimony on point is typical of his evasiveness with
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`respect to Central’s proof of sales and/or use generally:
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`Q
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`Do you have any documentary evidence that reflects that you
`used the Hypersonic mark on hats?
`Yes, I do.
`What --
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`II>»O>/O39O>Oi>O>rO>C>{>1-03>
`
`I haven't been able to
`
`But I don't have it in my possession.
`locate it. I have pictures of the hats.
`When I ask you -- pictures of the hats?
`Yeah, the pictures of the hats.
`Where are the pictures of the hats‘? Why weren't those
`produced in discovery?
`Because I didn't -- I didn't have any.
`Where are they located?
`I can't -- I don't have any in my possession that I've been able
`to locate.
`I have thousands of -— not thousands, tens of
`
`thousands of documents. I've gone through those looking
`for them, and I haven't been able to find them.
`I will continue
`to investigate, and if I can find them, I will give them to you.
`Pictures of people wearing the hats is not proof of sale of
`the hats.
`
`Well --
`
`Do you have any documents that reflect the actual purchase
`of a hat bearing the Hypersonic mark? Not in a hang tag --
`Invoices, would that --
`
`Yes. Do you have any invoices‘?
`I will attempt to find those invoices.
`Where would those invoices be?
`
`They would have been in my father's house, but I will
`attempt to get them for you.
`
`" Stoller only supplied the address ofthis supposed retail store pursuant to the protective order, because he claimed he
`did not want anyone harassing his employees or coming to his store. Stoller Tr., p. 14. He also purported not to
`remember the last names of any ofhis employees. 1d., pp. 15-16.
`13
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`

`
`
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`rat, pp. 99-100.
`
`With respect to advertising, he testified that other than printing and distributing his
`
`sales quote sheets and catalog pages, Central has advertised in World Tennis magazine, but he
`
`could not recall the date, the amount paid, or the means of payment, and does not have any
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`records of that advertisement. Id., pp. 7 8-80. He also testified vaguely about purported co-op
`
`advertising, but again admitted that Central has no records of that alleged advertising. Id., pp. 81-
`
`83.
`
`The second piece of documentary proof that Central has produced is a series of
`
`catalog sheets and sales quote sheets for Hypersonic products. Weber Tr., Exs. 2-7. The sales
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`quote sheets are blank forms with a list of “Hypersonic Sports Equipment” ranging from tennis
`
`rackets to pool tables; each form is identical except for copyright attribution lines at the bottom of
`
`each page reflecting different years, beginning with 1988 and continuing every two years through
`
`2003. Id. The list of items, and the prices at which they are purportedly sold, has remained
`
`exactly the same since 1988.
`
`I’d.; see Stoller Tr., pp. 59-60. The catalog sheets consist of a
`
`picture of various products, some with the word “HYPERSONIC” apparently superimposed upon
`
`the picture. See Weber Ex. 2 (golf ball picture); see also Stoller Tr. pp. 158-60 (inconsistent
`
`testimony about whether picture is of a golf hall where trademark aflixed to the ball, or picture of
`
`a golf ball where trademark superimposed on picture). The Court in S Industries Inc. v. Stone
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`Age Equipment Inc. examined similar catalog sheets, finding numerous inconsistencies and
`
`evidence of manipulation of the pictures and text, and noting that Stoller’s “convoluted
`
`explanation .
`
`.
`
`. just barely saves Stoller from a finding that he submitted fabricated evidence in a
`
`federal court proceeding.” 49 U.S.P.Q.2d at 1080-81. Regardless, the Court held that the single
`
`14
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`

`
`
`
`catalog proffered was not evidence that the shoes “were the subject of continuous, bona fide
`
`commercial use,” in part because the existence of a catalog does not demonstrate that the
`
`products sold .in that catalog entered the stream of commerce.
`
`Id., at 108].
`
`Strikingly, Central has not produced any physical samples of any products listed on
`
`these catalog or quote sheets. Koonce Aft‘ t, 1[ 12. Nor has it produced any evidence
`
`demonstrating that these catalog and quote sheets have ever been sent to customers, other than
`
`the testimony of Sto1ler’s friend Raymond Weber that he received such sheets in Chicago, sent by
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`Stoller from Chicago. Weber Tr., pp. 11—18. Central has not produced any copies of completed
`
`quote sheets, or purchase orders generated by the quote sheets. Stoller testified that he believes
`
`Central sells products other than the ones listed on the sales quote sheets, but could not remember
`
`what types of products (Stoller Tr. pp. 56-58), and could not produce documentary records
`
`thereof (Id., pp.58-S9). Stoller testified that Central once “had some T—shirt catalog sheets that I
`
`loo.ked for promoting the Hypersonic mark on T-shirts, catalog shirts”, but admitted that he has
`
`not been able to find any catalog sheets for those T-shirts. Id, p. 97. Also included in each of the
`
`exhibits containing quote sheets and catalog sheets is a single blank order form for
`
`“HYPERSONIC Safety Goggles”. Weber Tr., Exs. 2-7. Stoller testified that Central has sold
`
`such goggles} as well as binoculars and telescopes, but had no fiirther proof of such sales. Stoller
`
`Tr., p. 127.
`
`The third piece of purported documentary evidence proffered by Central is an
`
`alphabetical list of businesses with addresses in Wyoming, Kansas, North Dakota, South Dakota,
`
`Colorado, Montana, Minnesota, Wisconsin, Iowa, Nebraska, Missouri, Utah to which Central
`
`9 In tact, Stoller testified that these goggles have been endorsed by two industry trade organizations, the American Sports
`Association and the US Hardware Industry Association. Stoller Tr., 127-29. The organizations, however, are merely
`I5
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`

`
`
`
`allegedly mailed promotional materials, Stoller Tr., Ex. 2. Although originally calling it a list of
`
`“customers”, upon further questioning Stoller conceded it was merely a mailing list:
`
`03>0>0
`
`03>rO>»O>rOi1>zO
`
`[asked to identify document]
`This is a list of customers of t