IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`EDEN FOODS, INC.
`
`Opposer,
`
`V.
`
`THOMAS BRENKWITZ
`
`D/B/A BRENKWITZ FARMS,
`
`Applicant.
`
`\_/‘-u./‘u./\..d%/\../\-I'\_d"I—/é/‘!-/%/
`
`Opposition No. 91151474
`
`Serial No. 75873814
`
`Mark: EDEN GARDEN
`
`Published: 27 Nov 2001
`
`APPLICANTS NOTICE OF FILING CERTIFIED TRANSCRIPT
`
`OF TESTIMONY DEPOSITION OF JOHN BUFFINGTON
`
`Applicant Thomas Brenkwitz, by counsel undersigned, hereby gives notice pursuant
`to Trademark Rule of Practice 2.125(c), 37 CFR 2,125(c), that he has caused to be filed
`with the Trademark Trial and Appeal Board one sealed and certified transcript of the
`testimony deposition of John Buffington dated 30 June 2004 and exhibits thereto,
`corrected and signed by the witness.
`
`Respectfully submitted,
`
`Thomas Brenkwitz
`
`By 1 wé at/7
`
`C. Todd Kennedy, Esq.
`1315 33rd Avenue
`
`San Francisco CA 9412
`
`Attorney for Applicant
`
`
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`EDEN FOODS, INC.
`
`Opposer,
`
`V.
`
`THOMAS BRENKWITZ
`
`D/B/A BRENKWITZ FARMS,
`
`Applicant.
`
`\_/‘-u./‘u./\..d%/\../\-I'\_d"I—/é/‘!-/%/
`
`Opposition No. 91151474
`
`Serial No. 75873814
`
`Mark: EDEN GARDEN
`
`Published: 27 Nov 2001
`
`APPLICANTS NOTICE OF FILING CERTIFIED TRANSCRIPT
`
`OF TESTIMONY DEPOSITION OF JOHN BUFFINGTON
`
`Applicant Thomas Brenkwitz, by counsel undersigned, hereby gives notice pursuant
`to Trademark Rule of Practice 2.125(c), 37 CFR 2,125(c), that he has caused to be filed
`with the Trademark Trial and Appeal Board one sealed and certified transcript of the
`testimony deposition of John Buffington dated 30 June 2004 and exhibits thereto,
`corrected and signed by the witness.
`
`Respectfully submitted,
`
`Thomas Brenkwitz
`
`By 1 wé at/7
`
`C. Todd Kennedy, Esq.
`1315 33rd Avenue
`
`San Francisco CA 9412
`
`Attorney for Applicant
`
`
`
`at
`
`CERTIFICATE OF SERVICE
`
`, 2004, he served a
`;! uffl
`The undersigned hereby certifies that on ¢'?
`copy of the foregoing Applicant's Notice of Filing Certified Transcript of Testimony
`Deposition of John Buffington, with the Transcript, on Opposer's counsel of record by
`depositing it, fi.rst—class mail, postage prepaid, with the United States Postal Service
`addressed as follows:
`
`I. Timothy Hobbs
`Wiley Rein «S: Fielding LLP
`1776 K Street NW
`
`Washington DC 20006
`
`420;/L/7
`
`C. Todd Kennedy
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`-~—o0o~——
`
`EDEN FOODS,
`
`INC.,
`
`Opposer,
`
`vs.
`
`Opposition No. 91151474
`
`THOMAS BRENKWITZ,
`D/B/A BRENKWITZ FARMS,
`
`Serial NO 75873814
`Mark:
`Eden Garden
`Published:
`27 Nov 2001
`
`Applicant.
`______________________________/
`
`Deposition of
`
`JOHN M. BUFFINGTON
`
`Wednesday,
`
`June 30, 2004
`
`Job No. 1519RD
`
`Reported by: Ruth E. Diederich, RPR, CSR
`CSR No. 4952
`
`ORIGINAL
`
`RUTH E. DIEDERICH, RPR, C33
`
`CERTIFIED SHORTHAND REPORTER
`
`1000 Sunrise Avenue, Suite 9B
`PMB 346
`Flosevilre, California
`95661
`
`TEL (916) 722-7314
`FAX (916) 726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`“"
`
`FOR THE OPPOSER:
`
`A P P E A R A N C E S
`
`WILEY, REIN & FIELDING
`
`J. TIMOTHY HOBBS, Esq.
`BY:
`1776 K Street, N.W.
`
`Washington, D.C. 20006
`(202) 719-7105
`
`FOR THE APPLICANT:
`
`C. TODD KENNEDY
`
`Attorney at Law
`1315 33rd Avenue
`
`San Francisco, California
`(415) 664-8851
`
`94122
`
`Phone:
`.‘|n.._..—._—._.- .
`-.2.
`_—...
`
`(916) 722-7814
`.
`
`.
`
`Fax:
`.
`-_--'.-._.-..
`
`,-.
`
`(916) 726-0784
`'_
`..
`E
`..;-
`
`.
`
`RUTH E. DIEDERICH, RPR, CSR
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`JOHN M. BUFFINGTON
`
`Wednesday,
`
`June 30,
`
`2004
`
`Direct Examination by Mr. Kennedy
`Cross—Examination by Mr. Hobbs
`Redirect Examination by Mr. Kennedy
`recross—Examination by Mr. Hobbs
`Redirect Examination by Mr. Kennedy
`
`—--oOo—~-
`
`E X H I B I T S
`
`Exhibits
`
`Description
`
`Opposer's Exhibits:
`
`A
`
`A document entitled "Applicant's
`Further Response to Opposer‘s First
`Request for Production of Documents
`and Things."
`
`A current website home page of
`Brenkwitz Farm.
`
`Applicant's Exhibits:
`
`13
`
`A document entitled "Notice of
`
`Testimony Deposition.”
`
`14
`
`An image reproduction of a carton
`from Eden Garden.
`
`A catalog from Eden Organic.
`
`---oOo———
`
`Phone:
`.2 ..-.'._"aa'.:.‘_. ..
`..
`
`-
`
`(916) 722-7814
`5_§I!'-
`.-..-..'.2..'.-_..-.....:'._,.,,
`
`':..b-»:
`
`Fax:
`
`(916)
`
`726—O784
`
`RUTH E. DIEDERICH, RPR, CSR
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`BE IT REMEMBERED that under the applicable
`
`sections of the Code of Civil Procedure of the State of
`
`California, on Wednesday,
`
`June 30, 2004, commencing at
`
`the hour of 9:54 a.m.
`
`thereof, at 3875 Taylor Road,
`
`Suite 2A, Loomis, California, before me,
`
`Ruth E. Diederich,
`
`a Certified Shorthand Reporter
`
`in the State of California,
`
`there personally appeared
`
`JOHN M. BUFFINGTON
`
`MR. KENNEDY:
`
`This is a testimonial deposition
`
`proceeding, 91151474, before Trademark Trial and Appeal
`
`Board titled Eden Foods,
`
`Inc., Opposer, versus
`
`Thomas Brenkwitz, DEA, Brenkwitz Farms, Applicant.
`
`This deposition is taken by applicant per its
`
`notice of taking testimony —— testamentary -— right --
`
`deposition served opposing counsel, Wiley, Rein &
`
`Fielding, LLC, on 12 June, 2004,
`
`a copy of which is
`
`entered as Applicant's Exhibit 13.
`
`(Applicant's Exhibit 13 was marked
`
`for identification.)
`
`We have,
`
`I believe,
`
`two stipulations opposing
`
`counsel will present.
`
`MR. HOBBS:
`
`We have received from applicant's
`
`counsel by service dated June 26, 2004,
`
`the applicant's
`
`paper entitled "Applicant's Further Response to
`
`Phone:
`-l_._« .._; ._._—.
`
`(916) 722-7814
`..».«.r.'‘a.;.v..h.-'-‘'§_-E%‘.Bii'i':t‘.:;».‘-.‘..:._‘
`
`Fax:
`.
`.«_.
`
`.
`
`(916) 726-0784
`
`RUTH E. DIEDERICH, RPR, CSR
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Opposer‘s First Request for Production of Documents and
`
`Things." And since this production is supplementary,
`
`and since this discovery period is closed and the
`
`opposer's testimony period is closed, we are stipulating
`
`today that applicant's paper identified as above can be
`
`entered as Exhibit A to this deposition transcript.
`
`Is that agreeable to you, Mr. Kennedy?
`
`MR. KENNEDY:
`
`So stipulated.
`
`(Opposer's Exhibit A was marked
`
`for Identification.)
`
`MR. HOBBS:
`
`Secondly, we brought
`
`to
`
`Mr. Kennedy's attention another called—for document
`
`which would have been responsive to our Interrogatory 18
`
`which is the current home page and website of his
`
`client, Tom Brenkwitz, doing business as Brenkwitz Farm.
`
`We
`
`took what
`
`I will identify as Exhibit B off of the
`
`Internet on June 29, and it, as far as we know,
`
`is a
`
`current website home page.
`
`We would like to put that
`
`in
`
`as stipulated Exhibit B to this deposition transcript.
`
`Is that agreeable to you?
`
`MR. KENNEDY:
`
`So stipulated.
`
`(Opposer's Exhibit B was marked
`
`for Identification.)
`
`MR. HOBBS: Off the record.
`
`(A discussion was held off the record.)
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`.
`:. _:'.. s.-:. . .._.
`
`(916) 722-7814
`I.
`.
`.. i=»:«_n.&x...‘_
`u_..:..
`
`' y.-
`
`Fax:
`
`(916) 726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`MR. KENNEDY:
`
`Back on the record.
`
`You may now swear the witness.
`
`JOHN M. BUFFINGTON,
`
`called as a witness by the applicant
`
`in the
`
`above—entitled action, who, having been duly sworn by me
`
`to tell the truth,
`
`the whole truth, and nothing but
`
`the
`
`truth, was examined and testified as follows:
`
`DIRECT EXAMINATION BY MR. KENNEDY
`
`Q.
`
`Could you please state your name and spell your
`
`last name.
`
`A.
`
`Q.
`
`A.
`
`John Buffington, B—u-f—f—i-n—g—t-o—n.
`
`Are you employed?
`
`I currently have a consulting business,
`
`so I
`
`guess we could say I am employed, yes.
`
`Q.
`
`A.
`
`What does that practice Consist of?
`
`I currently have three clients advising them on
`
`a number of
`
`issues regarding the produce industry.
`
`One
`
`of my clients,
`
`I
`
`am the Northern California marketing
`
`representative. Another one,
`
`I'm working with sourcing
`
`issues and co—op monies and just the retail perspective
`
`for a wholesaler that I'm working for.
`
`Q.
`
`A.
`
`Q.
`
`How long have you been so engaged?
`
`Less than one year.
`
`Have you had a prior employment?
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`
`(916) 722-7814
`,4.-.
` 7-
`
`_
`
`Fax:
`-
`_._-.;.
`
`(916)
`
`726—O784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Yes.
`
`What —— what was that employer?
`
`A.
`
`For
`
`the 23 years prior to that,
`
`I worked for a
`
`local supermarket chain, Raleys.
`
`MR. HOBBS:
`
`Spelled?
`
`THE WITNESS: R—a~l-e-y-S.
`
`And the last 20 of those years,
`
`I was a produce
`
`buyer and senior produce buyer.
`
`Q.
`
`BY MR. KENNEDY: What -- how many store
`
`locations does Raleys have?
`
`A.
`
`In California and Nevada, under three banners --
`
`actually, under four banners, approximately 130.
`
`Q.
`
`A.
`
`What is their more precise geographical range?
`
`Northern California and Western Nevada, although
`
`there is a small group of stores in New Mexico.
`
`What was your original title at Raleys?
`
`Well,
`
`I started just working as a produce clerk.
`
`How many years were you so employed?
`
`Well,
`
`produce clerk,
`
`for less than a year,
`
`then
`
`assistant produce manager and then produce manager. All
`
`of that in a
`
`time frame of
`
`less than three years.
`
`And what other titles did you hold at Raleys?
`
`At one point,
`
`I was
`
`the produce marketing
`
`Q.
`
`A.
`
`manager.
`
`Q.
`
`What period of
`
`time did you fill that?
`
`.
`
`.
`
`-.--..x.'.-."_»'.._'
`
`Phone:
`'. L.....:éa':"d.Ae'4.a.g4..
`.
`.
`......
`
`-
`
`(916) 722-7814
`‘ " '7'-_;i«..:.
`
`RUTH E. DIEDERICH,
`
`RPR, CSR
`(916) 726-0784
`
`Fax:
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`A.
`
`I held that position for about four years, and
`
`that was
`
`in the late nineties,
`
`say '96 to '99.
`
`Q.
`
`What other title or position did you hold at
`
`That's it with Raleys.
`
`That's all? Okay.
`
`During that time at Raleys,
`
`to what degree did
`
`you have personal knowledge of Raleys‘ produce
`
`purchasing practices?
`
`A.
`
`Q.
`
`Could you repeat
`
`that for me, please?
`
`During that time that you were employed at
`
`Raleys, did you have personal knowledge of Raleys‘
`
`produce purchasing practices?
`
`A.
`
`Q.
`
`Yes.
`
`During that period of time,
`
`to what degree did
`
`you have that personal knowledge?
`
`A.
`
`Well,
`
`in my capacity as marketing manager and
`
`senior produce buyer,
`
`I directed whom Raleys purchased
`
`product
`
`from for their produce departments.
`
`Q.
`
`A.
`
`Q.
`
`You were what was called an exempt employee?
`
`Correct.
`
`During that
`
`time you were at Raleys,
`
`to what
`
`degree did you have personal knowledge of customary
`
`practices of the trade in wholesale produce?
`
`A.
`
`I would say that during my 20 years as a buyer,
`
`Eu-.I. -n.
`
`Phone:
`.
`
`—
`
`.
`
`RUTH E. DIEDERICH, RPR, CSR
`
`(916) 722-7814
`
`Fax:
`
`(916) 726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`senior buyer, marketing manager,
`
`I —— part of my job
`
`function was to be attuned to what was going on in the
`
`industry.
`
`Q.
`
`Were you trained in necessary skills to purchase
`
`produce?
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`By whom?
`
`By the existing produce buyers when I Came into
`
`the office initially.
`
`I had about a one—year training
`
`span.
`
`Q.
`
`Have you trained others?
`
`Yes.
`
`How many others?
`
`Over
`
`the years, probably five or six.
`
`Did you have supervision Over others at
`
`Yes.
`
`—-
`
`in this capacity?
`
`Yes.
`
`How many others?
`
`Well,
`
`four —— six.
`
`Six.
`
`Four buyers and two
`
`quality control people.
`
`Q.
`
`Do you know of any professional or lobbyists,
`
`associations or groups associated with produce buying?
`
`A.
`
`Yes.
`
`'
`
`. -2
`
`Phone:
`'
`.
`..e.
`
`(916) 722-7814
`’ 1.5.3.-.-'.-1..
`
`Fax:
`
`(916) 726-0784
`
`RUTH E. DIEDERICH, RPR, CSR
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Does Raleys belong to any such association or
`
`Q.
`
`Did you personally belong to any such
`
`organization or group?
`
`A.
`
`Q.
`
`A.
`
`Only under the corporate umbrella.
`
`Raleys paid for your membership or --
`
`Well, memberships were corporate memberships,
`
`but
`
`I participated in events.
`
`Q.
`
`A.
`
`Q.
`
`What was the name of such an organization?
`
`PMA, Produce Marketing Association.
`
`Were services, meetings or publications provided
`
`to the member —— members of PMA?
`
`A.
`
`Q.
`
`Yes.
`
`Did you attend any such meetings or receive
`
`services?
`
`A.
`
`Annual conventions. Attended probably, over the
`
`years,
`
`a dozen annual conventions.
`
`Q.
`
`Do you know Eden Foods, Inc.,
`
`the opposer in the
`
`present proceeding?
`
`No.
`
`Have you been employed by Eden Foods,
`
`Inc.?
`
`No.
`
`Have you ever received payments from Eden Foods,
`
`Phone:
`.a..... &.. Q-‘gr .. _.......au'=
`
`(916) 722-7814
`.
`
`..
`
`Fax:
`
`(916) 726-0784
`
`RUTH E. DIEDERICH, RPR, CSR
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`A.
`
`Q.
`
`No.
`
`Do you know Brenkwitz Farms, applicant of the
`
`mark Eden Gardens in the present proceeding?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes.
`
`In what capacity?
`
`In my capacity as a produce buyer.
`
`Have you ever been employed or contracted to
`
`perform services by the Brenkwitz family?
`
`A.
`
`Q.
`
`No.
`
`Have you ever received payment
`
`from the
`
`Brenkwitz family?
`
`A.
`
`No.
`
`Q. Will you receive compensation for today's
`
`testimony from the Brenkwitz family?
`
`A.
`
`Q.
`
`No.
`
`Inasmuch as it appears that you are qualified to
`
`provide expert
`
`testimony on certain matters today and
`
`you may also be able to provide evidence as a percipient
`
`witness,
`
`it is necessary to distinguish those occasions
`
`when you will be called upon in your expert capacity.
`
`Therefore,
`
`in this proceeding today,
`
`if you are asked to
`
`provide expert
`
`testimony, you will be so instructed --
`
`A.
`
`Q.
`
`Okay.
`
`—— either by me or by counsel.
`
`During what
`
`time period did you handle or
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`
`(916) 722-7814
`
`Fax:
`
`(916) 726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`purchase Eden Garden fruit at Raleys?
`
`A.
`
`I
`
`am not sure the exact year we started using
`
`that product, but as recently as 2003, and I would say
`
`that relationship probably went back four or five years.
`
`Q.
`
`What kinds of Eden Garden fruit did you handle,
`
`you at Raleys handle?
`
`A.
`
`Q.
`
`Apricots and pluots.
`
`How did Raleys commence purchasing from the
`
`Brenkwitz family?
`
`A.
`
`I believe that Steve called us, and I sent one
`
`of my quality control guys down to meet with him.
`
`He
`
`came back saying,
`
`"Hey,
`
`this is a product that we should
`
`look into," and, you know, we brought
`
`some product
`
`in
`
`and established a relationship and ——
`
`Q.
`
`What volume average per year of Eden Garden
`
`apricots did Raleys handle?
`
`A.
`
`Oh,
`
`I would guess Steve —— or Eden Garden did
`
`not have enough product
`
`to supply all of the Raleys‘
`
`stores,
`
`so it was supplemental product that we brought
`
`in, and I would say the volume during the season was
`
`magge lwto 600 trays.%( Ngéhéaué
`
`Q.
`
`A.
`
`And how many pounds per tray?
`
`Approximately seven.
`
`Some of the fruit I
`
`think
`
`went as high as nine.
`
`Q.
`
`And so doing the math,
`
`that would be seven
`
`
`
`(916) 722-7814
`.4
`.
`
`
`Fax:
`
`(916) 726-0784
`
`RUTH E. DIEDERICH, RPR, CSR
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`pounds times ——
`
`Say, 600 is --
`
`Thirty—five?
`
`No.
`
`Is that --
`
`Yeah.
`
`Forty—two.
`
`Okay.
`
`Yeah.
`
`How was the purchase from Brenkwitz Farms made?
`
`Over
`
`the telephone.
`
`Were any purchases made in person?
`
`No.
`
`Did Eden Garden fruits sell well?
`
`Yes.
`
`How many buyers are employed in all the
`
`departments of Raleys?
`
`A.
`
`In all of
`
`the departments in Raleys.
`
`Good
`
`question.
`
`There are approximately 13 departments.
`
`Produce
`
`had four buyers, and if we assume the rest of the
`
`departments on average had approximately four buyers,
`
`some,
`
`like grocery, probably had a few more —— I don't
`
`know the exact number.
`
`Q.
`
`A.
`
`Where did you perform your work at Raleys?
`
`At
`
`the Raleys‘ distribution center.
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`. :-5-§'.‘ m>L -.:.. ‘_. ;-:
`
`(916) 722—78l4
`. F.
`'.';.-£'Jha.a.a:.;.m..'.._A..a'..';...
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`.1;
`
`Fax:
`
`(916) 726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Where is that?
`
`It's in West Sacramento in Natomas.
`
`Or excuse
`
`me.
`
`That is not West Sacramento.
`
`It's in Sacramento in
`
`Natomas.
`
`Q.
`
`A.
`
`That's two different places?
`
`Originally, when I went
`
`to work for Raleys in
`
`the distribution center,
`
`it was in West Sacramento.
`
`Okay.
`
`And at
`
`some subsequent
`
`time, it was
`
`A new facility was opened in the early nineties.
`
`And were all buyer functions present
`
`there?
`
`Yes.
`
`On what floor was your space located?
`
`Second floor.
`
`Did you work alone?
`
`No.
`
`In that office were the rest of the produce
`
`buyers,
`
`the director of produce,
`
`the quality control
`
`people, and all the distribution center people worked
`
`also in that office.
`
`Q.
`
`A.
`
`Where were the buyers of non produce located?
`
`Over off of West Capitol
`
`in Sacramento about
`
`seven or eight miles away in corporate headquarters.
`
`Q.
`
`Were any of
`
`those non produce buyers located
`
`with you?
`
`A.
`
`For a brief period of time,
`
`the —— there were
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`‘£a...4:e:£'.&:..1._'
`.
`
`(916) 722-7814
`
`. _...__._.p.-. ;/_-. _. --- --
`
`Fax:
`
`(916) 726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`two meat buyers in the distribution center.
`
`Q.
`
`Making use of your refrigerator?
`
`Well,
`
`the distribution center distributed
`
`meat, deli, produce,
`
`liquor and some dry goods.
`
`Q.
`
`Why were you thus organized together, you,
`
`the
`
`produce buyers, apart
`
`from the other buyers?
`
`A.
`
`Because one of the functions of the produce
`
`buyer is that -- is to inspect product,
`
`so the product
`
`came into the distribution center, and the produce
`
`buyers daily inspected arrivals of that product.
`
`Q.
`
`What was the reason that Raleys' corporate
`
`department kept
`
`the other buyers close to them?
`
`A.
`
`Don't know for sure, but
`
`the other departments,
`
`none of those buying functions involve daily
`
`inspections.
`
`Q.
`
`So that, effectively, you were close to your
`
`product but
`
`they were not?
`
`A.
`
`Correct.
`
`MR. HOBBS: Object
`
`to the form of the question.
`
`It's also leading.
`
`Q.
`
`BY MR. KENNEDY: Why —— well, were any of the
`
`buyers of other goods involved in buying fruit?
`
`A.
`
`The deli buyers bought processed fruit for the
`
`service deli departments.
`
`Q.
`
`IS that --
`
`RUTH E. DIEDERICH,
`
`Phone:
`
`(916) 722-7814
`
`=-
`
`—.
`
`‘ -_-
`
`RPR,
`Fax:
`
`CSR
`
`(916)
`
`726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Like fruit salad.
`
`Is that what
`
`is called precut?
`
`Precut fruit.
`
`Did you perform any work off Raleys' premises?
`
`Yes.
`
`Where did you perform that work?
`
`A.
`
`In various locations in the United States and
`
`out of the United States on buying trips where we
`
`actually went
`
`to growers‘
`
`locations and inspected their
`
`orchards, packing sheds and that kind of stuff.
`
`Q.
`
`What stores,
`
`if any, did you have any reason to
`
`A.
`
`Ongoing visits with Raleys' corporate stores and
`
`also visited all local competition on, most often,
`
`a
`
`weekly basis.
`
`How many competitors did you visit?
`
`Generally four.
`
`What did you observe while there?
`
`Just observed what
`
`they had in their produce
`
`departments and the quality of their product and retail
`
`pricing versus what we were doing.
`
`Are records of your buying transactions kept by
`
`In what
`
`form?
`
`...'-.'§._:.. ..ac.-....
`
`.
`
`._
`
`Phone:
`(916) 722-7814
`..»..A.aa_-..:..>..._-;.-.m;c-“:‘
`-
`..
`
`..
`
`RUTH E. DIEDERICH,
`
`RPR,
`Fax:
`.
`._'.
`
`..
`
`CSR
`
`(916)
`.._
`
`726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`A.
`
`I'm not quite sure how they're keeping those
`
`records currently.
`
`In the computer system that Raleys
`
`used, we could go back —— "we" being the buyers -— could
`
`go back 90 days in the system to see purchase orders
`
`that we had made. After that, we could not access that
`
`information.
`
`But
`
`the accounts payable department had
`
`their own system, and I
`
`think that they could go back
`
`two years in that system and look on—line.
`
`And what
`
`they were doing, how they were storing records after
`
`that two—year period,
`
`I don't know.
`
`Q.
`
`Were any of the members of produce buying in a
`
`position to access those computers beyond 90 days?
`
`A.
`
`Q.
`
`No.
`
`Where were the payments generated, payments to
`
`your accounts, your produce accounts?
`
`A.
`
`Well,
`
`the product was billed upon receipt at
`
`the
`
`distribution center.
`
`Q.
`
`And the actual cutting of checks,
`
`then, and
`
`dispatching to the suppliers, where did that take place?
`
`That
`
`took place at
`
`the corporate office.
`
`Okay. Did you visit there often as a beginning
`
`A.
`
`Q.
`
`buyer?
`
`A.
`
`As a beginning buyer, corporate offices almost
`
`Did you visit often in later years?
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`
`(916) 722~7814
`" ‘..¢‘i.:§ia&.-
`.
`.'
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`
`
`W
`
`-.7.
`
`.
`
`Fax:
`ens.‘
`
`(916) 726~0784
`;_..-.
`_...
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Yes.
`
`In what capacity?
`
`A.
`
`Weekly ad planning meetings involving all
`
`corporate departments.
`
`Q.
`
`A.
`
`Q.
`
`What position did you hold at
`
`the time?
`
`Marketing manager and senior buyer.
`
`Did you visit Raleys‘ non produce buyers with
`
`any frequency?
`
`A.
`
`Q.
`
`No.
`
`How does a RaleyS' buyer purchase Eden Garden
`
`fruits,
`
`to your knowledge, as of 2003, anyway?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Purchased over the telephone.
`
`By telephone?
`
`Yes.
`
`Are any non produce personnel or other employees
`
`at supermarkets involved in that purchasing --
`
`A.
`
`Q.
`
`Not
`
`to my knowledge.
`
`—— process?
`
`Where is the fruit received by Raleys?
`
`At
`
`the Natomas facility.
`
`And is all fruit received there?
`
`I would say 99 percent.
`
`There are some small
`
`direct store deliveries.
`
`Q.
`
`A.
`
`And in what
`
`form is Eden Garden fruit received?
`
`The produce packed in trays comes on pallets.
`
`Phone:
`
`
`RUTH E. DIEDERICH,
`
`(916) 722-7814
`
`RPR,
`Fax:
`
`CSR
`
`(916)
`
`726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Our
`
`trucks —-
`
`the Raleys'
`
`trucks pick the product up at
`
`the ranch or the cooler, wherever the fruit is located
`
`at
`
`the time,
`
`transport that back to the distribution
`
`center.
`
`Please, could you elucidate the form of these
`
`Single—layer carton with a Panta—Pak.
`
`Each
`
`MR. HOBBS: With a what?
`
`THE WITNESS:
`
`A Panta—Pak.
`
`It's a --
`
`BY MR. KENNEDY: Dimpled plastic?
`
`Yeah.
`
`MR. HOBBS:
`
`How do you spell it?
`
`THE WITNESS: P-a-n-t-a.
`
`And the fruit --
`
`MR. KENNEDY:
`
`P—a-k.
`
`P—a—n—t—a hyphen p-a—k.
`
`MR. HOBBS:
`
`Panta—Pak.
`
`MR. KENNEDY: That's a
`
`trade name.
`
`MR. HOBBS: Okay.
`
`THE WITNESS:
`
`So we —— it's a single—layer
`
`cardboard or wood tray with a certain amount of fruit by
`
`count contained therein.
`
`Q.
`
`BY MR. KENNEDY: What Raleys' staff is in
`
`Contact with the Eden Garden fruit that
`
`is received on
`
`that ground floor?
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`
`(916) 722-7814
`..-;..z
`" .39.-.5.
`
`
`.
`
`..
`
`—
`
`.
`
`Fax:
`.
`
`(916) 726-0784
`.—.
`.
`.
`
`.. .
`
`.....
`
`.
`
`'
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`A.
`
`Well,
`
`there are quality control people that
`
`look
`
`at almost all arrivals of product.
`
`Then there are the
`
`people that put
`
`the product
`
`into its proper slot in the
`
`distribution center; people that pick the store orders
`
`and build the pallets that are shipped to the stores.
`
`Q.
`
`How does a Raleys‘ buyer or quality control
`
`employee identify the Eden Garden fruit once it's
`
`received?
`
`A.
`
`By the —— the label on the shipping container
`
`and by labels on the fruit.
`
`Q.
`
`Does any Raleys‘ employee refer to Eden Garden
`
`fruit thereafter?
`
`A.
`
`Yes.
`
`Does Raleys promote or advertise the Eden Garden
`
`Why not?
`
`A.
`
`Just for the reason that we talked about
`
`earlier,
`
`the availability of product.
`
`There wasn't
`
`enough product available to advertise.
`
`Q.
`
`All right. What purpose does the Eden Garden
`
`mark serve after the fruit has been received?
`
`A.
`
`Well, other than the PLU number on the fruit
`
`Phone:
`
`
`RUTH E. DIEDERICH, RPR, CSR
`
`(916) 722-7814
`
`Fax:
`
`(916) 726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`which facilitates getting that through the front end at
`
`the proper retail, probably not very important.
`
`Q.
`
`What is that front end process that you speak
`
`of?
`
`A.
`
`Well, when the product is on display in the
`
`produce department and the customer picks the product up
`
`and goes to the checkstand,
`
`the clerks look at the
`
`fruits or vegetables to identify the PLU number, which
`
`in most cases is a four—digit number, which they input
`
`into the computer, and that
`
`links it to price per each
`
`or price per pound.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Are these clerks what we would call check—out?
`
`Yeah,
`
`the Checkers in the front end.
`
`How is fruit displayed at Raleys' supermarkets?
`
`Fruit is displayed primarily in hand—built
`
`loose
`
`fashion. Most fruit is taken out of its shipping
`
`containers.
`
`Q.
`
`Does "most fruit" include Eden Foods
`
`Gardens apricots?
`
`Yes.
`
`Does Raleys use growers‘ cartons in displays
`
`Occasionally.
`
`-— as a regular practice?
`
`Occasionally. Not as a regular practice.
`
`Were you familiar with opposer Eden Foods
`
`RUTH E. DIEDERICH, RPR, CSR
`
`.‘
`
`(916) 722-7814
`Phone:
`..
`-1, r.”
`
` ..'ara.-3.1:A..‘.-‘us. Jig.-.=2:=_"' ' ‘
`
`
`Fax:
`.
`
`.
`
`(916) 726-0784
`......‘_..-.._...:-..
`2
`
`.
`
`...-
`
`—.
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`products at Raleys?
`
`A.
`
`No.
`
`Why not?
`
`A.
`
`Just
`
`in my years at Raleys, nobody ever brought
`
`up that company.
`
`I wasn't aware that they existed.
`
`Q.
`
`Do you recall encountering the mark Eden used
`
`alone in your work at Raleys?
`
`A.
`
`Q.
`
`No.
`
`Did the word Eden used alone indicate any source
`
`of goods to you at Raleys?
`
`A.
`
`Q.
`
`No.
`
`Now,
`
`I'm presenting to you an exhibit marked
`
`today A, which I represent
`
`to be an image of stickers
`
`bearing applicant's mark that has been updated this
`
`morning to include an actual sticker, and we made
`
`reference to it already today in our stipulation.
`
`Do you recognize these generically?
`
`Yes.
`
`Are these the PLU stickers that you referred
`
`Yes.
`
`—— earlier?
`
`Do they serve a purpose at Raleys?
`
`A.
`
`Again,
`
`to facilitate proper ring—ups at
`
`the
`
`front end.
`
`RUTH E. DIEDERICH, RPR, CSR
`
`(916) 722-7814
`Phone:
`r;&Wfifi;%$bgn1..4LfiEfiH£2$&&finflm§m .
`
`.
`
`.
`
`.
`
`Fax:
`
`(916) 726-0784
`.rr--
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Q.
`
`A.
`
`Who places them on the fruit?
`
`Generally,
`
`the grower, packer, shipper will put
`
`these labels on the fruit.
`
`Some of it is done
`
`automatically.
`
`Some of it is done by hand.
`
`Occasionally,
`
`they will put strips of these stickers in
`
`the cartons that can be applied by the retailer.
`
`Why is it done by the grower primarily?
`
`Because Raleys would prefer that it be done that
`
`—— to save labor at store level.
`
`Q.
`
`A.
`
`Is this not
`
`a bargaining point with the grower?
`
`Raleys —— it's not mandatory of Raleys that
`
`stickers be applied, but it is strongly advised.
`
`Q.
`
`Your question suggests that it might be
`
`mandatory elsewhere.
`
`A.
`
`To the best of my knowledge, it is mandatory at
`
`some other retailers, yes.
`
`Q.
`
`A.
`
`Q.
`
`What other retailers require them?
`
`Best of my knowledge, Safeway, Wal—Mart.
`
`What purpose does the rest of the design and
`
`words serve at Raleys other than the number itself that
`
`you say you rely on?
`
`A.
`
`Q.
`
`None.
`
`Does the rest of the design and words serve a
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`
`(916) 722-7814
` ‘am
`
`Fax:
`
`(916) 726-0784
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`purpose to retail purchasers?
`
`A.
`
`Difficult to answer that.
`
`I guess best answer
`
`would be yes,
`
`to a small percentage, anyway.
`
`Q.
`
`A.
`
`How?
`
`I have had occasion to hear from customers via
`
`telephone asking about Eden Garden apricots and when
`
`they would be available.
`
`Q.
`
`Did those inquiries evince any knowledge of Eden
`
`Garden in particular?
`
`A.
`
`No.
`
`Just the quality of the fruit is what I'm
`
`guessing solicited or caused customers to call. Also
`
`had calls from various produce managers wanting to know
`
`when that product would be available.
`
`Q.
`
`Now I ask you for your expert opinion.
`
`Can you
`
`tell us with a reasonable degree of certainty what
`
`is
`
`the significance of in—store branding of fruit for its
`
`increasing sales?
`
`A.
`
`That's —— it's probably a long,
`
`involved
`
`explanation as to why stores would participate in a
`
`branded program. Over my years in produce,
`
`I did not
`
`see a significant increase in the sales of branded
`
`product, per se, with some exceptions,
`
`those being
`
`primarily packaged salads and salad dressings.
`
`But
`
`perishable commodities,
`
`there —- it isn't a major impact
`
`by branding product, because at Raleys, we always
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`
`(916) 722-7814
`I...-.
`
`.
`
`Fax:
`..
`
`_ -.
`
`(916) 726-0784
`.
`.....__.....
`.
`.
`
`..
`
`_..
`
`.. ..
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`operated on quality,
`
`so we were seeking the best quality
`
`product regardless of brand.
`
`Q.
`
`On what,
`
`in your experience or knowledge, do you
`
`base that opinion?
`
`A.
`
`Just sales results,
`
`that you did not see an
`
`appreciable lift in sales when you advertised Sunkist
`
`oranges over another brand. All produce is branded in
`
`different ways,
`
`I mean, on the shipping carton or on the
`
`fruit itself or on stickers.
`
`There is an advantage to
`
`retailers to advertise branded product because most
`
`branded product comes with advertising monies.
`
`So if
`
`you put Sunkist
`
`in your ad, you get some kind of reward
`
`for doing that.
`
`But, again,
`
`in my experience,
`
`the —— the sales
`
`lift you got
`
`from that brand was minimal.
`
`Q.
`
`Does Raleys rely upon the judgment you have
`
`given in any of its decision-making?
`
`A.
`
`Raleys' hallmark in produce has always been
`
`quality.
`
`So all things being equal,
`
`two oranges,
`
`same
`
`quality, Raleys would probably opt for a branded product
`
`in that
`
`they could, again, capture some advertising
`
`dollars.
`
`Q.
`
`Again,
`
`in your capacity as an expert,
`
`in a
`
`hypothetical example of apricots or pluots --
`
`(Interruption in the deposition.)
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`.-".L:-.'.. a'5¢9 '.
`
`(916) 722-7814
`:...ar.&.:- -1-‘
`=
`'
`'
`'
`‘
`_
`
`.
`
`Fax:
`; hi’:
`..
`
`.
`
`(916) 726-0784
`"Lu -..
`_.
`.
`-.2
`..'._ _
`_.._,..‘.
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`MR.
`
`KENNEDY: Off
`
`the record.
`
`(Discussion held off the record.)
`
`MR. KENNEDY:
`
`On the record.
`
`I will restart my question.
`
`Again,
`
`in your capacity as an expert
`
`in a
`
`hypothetical example of apricots or pluots bearing PLU
`
`stickers as shown you, can you tell us with a reasonable
`
`degree of certainty what proportion of retail fruit
`
`shoppers rely upon or are influenced to make a purchase
`
`of such fruits on the basis of the mark on these PLU
`
`stickers?
`
`A.
`
`I can't give you a definite percentage, but
`
`I
`
`would say it would be very small.
`
`Two percent.
`
`Q.
`
`And does that correspond to the number of
`
`inquiries you have received from customers asking for --
`
`A.
`
`Yeah. Very small amount.
`
`You know, over the
`
`course of time that
`
`I purchased that product, maybe two
`
`or three calls.
`
`Q.
`
`All right.
`
`I will present
`
`to you Exhibit B,
`
`marked B, subject of stipulation this morning, which I
`
`represent to you has been described as the home page of
`
`the website of Eden Gardens.
`
`Is the proprietor of the business identified?
`
`I'm sorry?
`
`Is the proprietor of the business identified
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`
`(916) 722*78l4
`
`Fax:
`
`(916) 726-0784
`
`
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`therein?
`
`A.
`
`Yes.
`
`What
`
`is that name?
`
`A.
`
`Tom Brenkwitz,
`
`son -- and his son Stephen
`
`operate Brenkwitz Farms.
`
`Q.
`
`Have you ever relied upon the website of Eden
`
`Gardens while you were at Raleys?
`
`A.
`
`No, but
`
`I was aware that it was there.
`
`I had
`
`been on this website, but just as a curiosity more than
`
`anything else.
`
`Q.
`
`A.
`
`You never relied upon it at all?
`
`No.
`
`MR. KENNEDY: Okay.
`
`I will present
`
`to the
`
`witness a document next
`
`in order. What would that be?
`
`THE COURT REPORTER:
`
`Fourteen.
`
`MR. HOBBS:
`
`This is marked as Exhibit 14?
`
`MR. KENNEDY: Right. That's —— it is marked as
`
`Opposer's Exhibit 4, and we will also mark it as
`
`Applicant's Exhibit --
`
`THE COURT REPORTER:
`
`Fourteen.
`
`MR. KENNEDY:
`
`-- 14.
`
`MR. HOBBS:
`
`Do you want
`
`to take a minute and
`
`mark all these now so that you'll have your own --
`
`MR. KENNEDY:
`
`some of these we're ending up not
`
`using,
`
`I
`
`think,
`
`so I'll save some numbers here.
`
`RUTH E. DIEDERICH, RPR, CSR
`
` z
`
`(916) 722—78l4
`_...i
`.
`
`Fax:
`_
`.
`
`.
`
`.
`
`(916) 726-0784
`-
`_
`....-._:.—_:..
`'..
`.
`..
`:.:_—..
`
`1'.
`
`.n.--‘....«'_
`
`.-.'
`
`-.
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`MR. HOBBS: Okay.
`
`(Applicant's Exhibit 14 was marked
`
`for identification.)
`
`BY MR. KENNEDY:
`
`Do you recognize this image?
`
`Yes.
`
`Can you identify the original?
`
`Yes.
`
`Q.
`
`A
`
`What was the original this was taken from?
`
`Oh,
`
`this particular picture,
`
`I don't know. But,
`
`you know,
`
`this —- this is a representation of the carton
`
`that was most frequently delivered to Raleys.
`
`Delivered by whom from whom?
`
`Well, on Raleys'
`
`trucks from Eden Garden.
`
`How would this label be used by the producer?
`
`Well, you know,
`
`labels on cartons are required
`
`by the state of California to identify the product.
`
`It's a
`
`form of advertising,
`
`in my mind.
`
`Some guys go to
`
`great
`
`lengths to enhance the labels on their cartons.
`
`Others ship in generic cartons.
`
`Q.
`
`In your prior testimony a while back, you stated
`
`that —— something to the effect that when fruits were
`
`received at Raleys, Raleys' employees would make
`
`reference to labels on the boxes in order to confirm the
`
`source of the fruit.
`
`A.
`
`Okay. Yes.
`
`RUTH E. DIEDERICH, RPR, CSR
`
`?22—78l4
`(916)
`Phone:
`,4'-’n---- .‘
`,
`.
`..
`.
`-
`:
`.
`...-.‘-"'-1..\&."«;-rs;-.5m.'...-‘._'-.-:a&..-g _-'-uh .‘.’;..=‘. '
`'
`
`.u_
`
`Fax:
`._ _..:.
`.: -.
`
`(916) 726-0784
`-
`-.-
`._. .,.-_ ......
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Is this the label you were referring to --
`
`Yes.
`
`-- at that
`
`time?
`
`Returning to your capacity as an expert,
`
`in the
`
`hypothetical example of apricots or pluots in containers
`
`bearing the label shown you as Exhibit 14, can you tell
`
`us with a reasonable degree of certainty what proportion
`
`of retail food —— fruit shoppers rely upon or are
`
`influenced to make a purchase of such fruits on the
`
`basis of the legend upon that
`
`label?
`
`A.
`
`Well, most of the customers would not see this
`
`label because a very small percentage of this fruit
`
`would be displayed in its shipping carton.
`
`Q.
`
`And so your conclusion is,
`
`in answer to the
`
`question?
`
`I will repeat it again.
`
`Can you tell us with a reasonable degree of
`
`certainty what proportion of retail fruit shoppers
`
`would rely upon or are influenced to make a purchase
`
`of such fruits on the basis of the legend upon that
`
`label?
`
`A.
`
`Q.
`
`Almost none.
`
`And you can tell that
`
`to us with a reasonable
`
`degree of certainty?
`
`A.
`
`Yes, with this label, because they would not see
`
`this label at retail.
`
`RUTH E. DIEDERICH, RPR, CSR
`
`Phone:
`.r..I-';.m=.«..;--..¢.....-
`
`..
`
`(916) 722-7814
`;-4...... ._ns..'
`.
`.
`
`-
`
`(916) 726-0784
`Fax:
`. .'
`-....-..'__._-_._.__4...- _.
`._
`.4.-4.. ..._-.-
`.
`.
`.
`
`;
`
`.-_
`
`.
`
`;..
`
`
`
`
`
`JOHN M. BUFFINGTON
`
`Q.
`
`Again,
`
`in your capacity as an expert,
`
`in the
`
`hypothetical
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