IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD 5‘,
`
`IW
`
`,i
`
`‘
`
`the Matter of Trademark Application
`In
`Serial No_ 75/789,080
`
`03-07-2003
`.
`uis. Patent& TMOfclTM Mail RcptDt. #70
`
`RMV CELLARS, LLC
`
`Opposition No. 91151893
`
`Opposer,
`
`-v—
`
`CALONA WINES LTD
`
`Applicant.
`
`
`OPPOSER’S OPPOSITION TO
`APPLlCANT’S MOTION il'O QUASH
`OR, ALTERNATIVELY, FOR
`PROTECTIVE ORDER
`
`The Board should deny Applicant's motion. This Opposition is filed concggrently?
`
`'
`.
`5‘
`.1’?
`I
`with Opposer’s First Motion for Order Compelling Discovery Responses. Applicant-‘
`
`failed to respond to discovery requests despite agreeing to provide the inforE{:ation‘._
`
`Applicant waited until the eve of the discovery deadline, after ignoring r;epeated:.'fetters~£.3
`
`(J
`from Opposer, to renege on the agreement, refuse to extend the discovery deadTIne :55
`work the problem out, and take the position that Opposer now must {be procedurally
`barred. Opposer did the only thing it could, notified Applicant’s counsel, by telephone,
`that Opposer would file a 30(b)(6) notice of deposition. Applicant did jnot say that the
`
`corporate officers were out of the Country, or would not be available. Applicant merely
`
`stated that
`
`ten days notice was required, and therefore (assumédly because of
`l
`Applicant’s tactics), Opposer was out of luck. Opposer, knowing there was no such
`I
`time limit,
`filed the 30(b)(6) notice of deposition, and specifically stated in the
`
`accompanying letter, (enclosed with the motion to compel), that Opposer would agree to
`
`schedule the deposition for any other more convenient date, but that the discovery
`
`deadline would have to be moved.
`
`OPPOSER’S OPPOSITION TO APPLlCANT’S MOTION TO QUASH OR,
`ALTERNATIVELY, FOR PROTECTIVE ORDER--1
`
`KURT M- PYLANDER TRIAL AND
`PATENT ATT°RNEY AT LAW PC
`1014 FRANKLIN STREET, suns 206
`VANCOUVER, WA 98660
`360.750.9931
`
`

`
`
`
`BACKGROUND OF CASE
`
`5
`
`Opposer is a U.S. based vineyard and wine seller with a significant reputation.
`Opposer’s SANDHILL WINERY 1999 Cabernet Sauvignon, Red Mountain, was
`
`selected as one of the Top 100 wines in the World. Applicant is a Cganada based
`
`vineyard and wine seller. Opposer applied on July 6, 2001, for the mark SANDHILL
`WINERY for labels on its wines. At the time of filing, Opposer stated that,Iits first was at
`least as early as May 31, 1999.‘ Applicant applied in Canada on March 1999, as an
`intent-to—use application, for the mark SANDHILL for its wines. Applicant filed its U.S.
`intent-to-use application on August 31, 1999, basing priority on jthe Canadian
`
`application.
`I
`Applicant in discovery stated that its vineyard manager, Dick Clevfe, conceived of
`the mark SANDHILL for wines, and suggested it to Applicant, and that Applicant then
`learned of Opposer’s SANDHILL WlNERY mark when it received from label designer
`samples of labels that the designer had made. Applicant did not provide, and refuses to
`provide, the dates and circumstances regarding those two events.
`
`Opposer was talking to people and considering using the SANDIHILL mark prior
`to 1999, and as early as 1992. Opposer believes it has a first use priorllto March 1999.
`ARGUMENT AND BACKGROUND OF THE DISPUTE;
`in
`requested,
`failed respond to discovery requests.
`Opposer
`Applicant
`interrogatories and supplemental requests the following: (1) the labe'I supplier (name,
`address, and contact person) and the literature received; (2) the literature package
`received;
`(3)
`the name of
`the management company that majhages Applicants
`
`!
`______________
`1 Opposer believes it has a first use date predating Applicant's constructiveiuse date.
`OPPOSER’S OPPOSITION TO APPLICANTS MOTION TO QUASH OR,
`KURT
`RYLANDER TRIAL AND
`ALTERNATIVELY, FOR PROTECTIVE ORDER--2
`PATENT ATTORNEY AT LAW PC
`1014 FRANKLIN STREET, sums 206
`VANCOUVER, WA 98680
`360.750.9931
`
`

`
`
`
`vineyards? (4) the address and phone number of Dick Cleave; (5) whether Dick Cleave
`
`a corporate agent precluding Opposer's counsel from contacting him directly; (6) the
`
`date did Dick Cleave made the suggestion for the mark SANDHILL to Applicant; (7) the
`
`date Dick Cleave conceived of the mark SANDHILL for Applicant; (8) identify Applicant’s
`
`label designers and manufacturers between 1999 and the present, and who designed
`and/or manufactured the SANDHILL label for Applicant; (9) identify whether Applicant
`ever had financial dealings with any bankers in Silicon valley,
`if so, lywhat financial
`institution and who were the contact people.
`I
`
`Applicant failed to respond.3 The missing discovery responsesfwere noted as
`due and were requested by letter dated November 8, 2002. Opposetir reiterated the
`request on December 9, 2002. Applicant, by counsel, on December
`2002, agreed
`to provide this information the next week. The information was not pro’)/ided. Opposer
`notified Applicant of the outstanding request on January 20, 2003. Alpplicant ignored
`
`Opposer’s letter. Opposer aggflt, on February 25, 2003, noted the now almost four (4)
`
`In response, Applicant sent
`months overdue information, requesting that it be provided.
`a large letter in which Applicant stated it refused to provide a large portion of the
`information requested based on relevance. Applicant reneged on the earlier, December
`13, 2002 agreement. Applicant also refused to agree to extend the discovery schedule
`so that this could be worked out.
`I
`
`By telephone conference dated February 27, 2003, Applicant stated that it would
`
`provide some of the material regarding Mr. Cleave, but otherwise refused to provide the
`
`2 Applicant contended in discovery responses that Dick Cleve, the manager of Applicant’s
`vineyards, conceived of the mark SANDHILL and suggested it to Applicant;
`3 Applicant has, belatedly, on March 4, 2003, provided some information regarding Mr. Cleave,
`but not in time to allow a deposition-—on|y two days before close of discoverfy.
`RY‘-ANDER TNAL AND
`OPPOSER’S OPPOSITION T0 APPLlCANT’S MOTION TO QUASH OR,
`KURT
`ALTERNATIVELY, FOR PROTECTIVE ORDER--3
`FATE“ ""°R“EY AT LAW "C
`1014 FRANKLIN smear, suns 206
`VANCOUVER, WA 98660
`360.750.9931
`
`

`
`
`
`other information requested, arguing “relevance.”
`
`Opposer stated because of the
`
`belated reneging of the December 13, 2002 agreement and with the refusal to agree to
`
`extend the discovery deadline, Opposer was left with no choice but to notice a 30(b)(6)
`
`designation for the following week. Applicant erroneously responded that ten days were
`
`required and that therefore, apparently, Opposer was simply out of luck.
`
`fl Applicant did
`
`not say that the corporate designee was not in the United States, would not be in the
`
`IJ
`
`area, or otherwise would not show up.
`
`The same day, on February 27, 2003, Opposer filed a 30(b)(6) notice of
`
`deposition for March 5, 2003, by facsimile and mail.
`
`In the accornpanying letter,
`
`Opposer stated that
`
`it would be willing to reschedule for a more convenient date.
`
`Without calling to discuss the deposition, or any of the reasons Applicanft now contends
`
`bar the deposition, Applicant simply filed the instant motion, in violation,‘ of Rule 26(c)’s
`
`certification requirement.
`
`As explained in the concurrently filed motion to compel, Opposerlis entitled to the
`I
`
`information requested. Applicant agreed to provide the information.
`
`fThe information
`
`was timely requested. And it is only Applicant’s surprise reneging of the agreement, on
`
`the eve of the discovery deadline, coupled with the refusal to extend the deadline, that
`
`has created this dispute.
`
`OPPOSER’S OPPOSITION TO APPLlCANT’S MOTION TO QUASH OR,
`ALTERNATIVELY, FOR PROTECTIVE ORDER--4
`
`\
`l
`
`KURT M- RY’-ANDER TR‘N- AND
`PATENTATTORNEY AT LAW PC
`1014 FRANKLlN STREET, sum: 206
`VANCOUVER, WA 98660
`360.750.9931
`
`

`
`
`
`WHEREFORE, the Board should deny Applioant’s improper motion and grant the
`
`relief requested in Opposer’s motion to compel.
`
`DATED THIS March 4, 2003
`
`’
`
`Respectfully submitted,
`
`KURT M. RYLAN
`PAT
`
`R TRIAL IAND
`AT LAW PC
`
` RT M. RYLANDER, Reg. No. 43,897
`
`
`1014 Franklin Street, Suite 206
`Vancouver, WA 98660
`I
`(360) 750-9931
`,5
`Attorney for Opposer
`I
`
`
`
`CERTIFICATE OF SERVICE TO APPLICANT
`
`inserted an envelope
`I HEREBY CERTIFY that on the date signed below I
`containing the document to which this certificate is attached into the US. Mails, first
`class, postage pre—paid, addressed to the attorney of record fo
`e Applicant, Nancy J.
`Moriarty, Chernoff Vilhauer McClung & Stenzel, L. . Ngfil SW 2nd Ave, 1600 ODS
`I
`Tower, Portland, Oregon 97204 and by fac " .
`— ; '
`A 73.
`
`
`
`
`
`RT M. RYLANDER
`
`DATED March 4, 2003
`
`I
`
`5
`
`iI
`
`Certificate of Mailing
`
`I hereby certify that on the date signed below the
`original and two copies of the document to which this
`certification is attached is being deposited with the
`United States Postal Service as first class mail
`in an
`envelope addressed to BOX TTAB NO FEE, Assistant
`Commissioner for Trademarks, Trademark Trial and
`Appeal Board, 2900 Crystal Drive, Arlington, VA
`22202-3513.
`.
`‘
`'
`
`}4,/'‘! 2 '
`
`OPPOSER’S OPPOSITION TO APPLICANT’S MOTION TO QUASH OR,
`ALTERNATIVELY, FOR PROTECTIVE ORDER--5
`
`KURT M.. RYLANDER TRIAL AND
`PATENT ATTORNEY AT LAW PC
`1014 FRANKLIN STREET, sums 206
`VANCOUVER, WA 98660
`360.750.9931
`
`

`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`the Matter of Trademark Application
`In
`SerIaI N0- 75/789.080
`
`RMV CELLARS, LLC
`Opposer,
`
`—v-
`
`CALONA WINES LTD
`
`_I
`
`‘ 03-07-2003
`us. Pjazenta TMOfc/TM Mail RcptDt. #70
`
`Opposition No. 91151893
`
`OPPOSER’S FIRST MOTION FOR
`ORDER COMPELLING DISCOVERY
`RESPONSES AND MEMORANDUM
`IN SUPPORT THEREOF
`
`Applicant.
`
`
`MOTION
`
`I
`
`Opposer moves for to compel responses to discovery requests llpursuant to the
`
`Trademark Rules of Practice and Rule 37 of the Federal Rules of Civil Procedure and/or
`to enlarge the time for completion of discovery to allow a 30(b)(0) deposition in
`accordance with 37 C.F.R. 2.120(c)(1),(2) and/or 2.124. This motionl is supported by
`declaration concurrently submitted, the record in this case, and by ‘memorandum of
`points and authorities attached hereto. Counsel for Opposer certifiesIthat a good faith
`
`effort was made to confer with Applicant to resolve this dispute in satisfaction of Rule
`37(a)(2)(A) of the Federal Rules of Civil Procedure, to wit, a telephone conference was
`
`held with Nancy Moriarty on February 27, 2003.
`
`Attached hereto are the following: Opposer’s letters dated November 8,
`December 9, January 20 in 2003, February 25, 2003, and February 27, 2003;
`Memorandum entry for the December 13, 2002 telephone conference with Applicant’s
`
`counsel regarding the discovery requested; Applicant’s letter dated February 26, 2003.
`
`OPPOSER’S FIRST MOTION FOR ORDER COMPELLING DISCOVERY
`RESPONSES AND MEMORANDUM IN SUPPORT THEREOF --1
`
`RYLANDER TRIAL AND
`KURT
`PATENT ATT°RNEY AT LAW "3
`1014 FRANKLIN STREET, sum: 206
`VANCOUVER, WA 98660
`360.750.9931
`
`

`
`
`
`MEMORANDUM OF POINTS AND AUTHORITIES
`
`A.
`
`BACKGROUND
`
`Opposer is a U.S. based vineyard and wine seller with a significant reputation.
`
`Opposer’s SANDHILL WINERY 1999 Cabernet Sauvignon, Red Mountain, was
`selected as one of the Top 100 wines in the World. Applicant
`is a Canada based
`vineyard and wine seller. Opposer applied on July 6, 2001, for the mark SANDHILL
`WINERY for labels on its wines. At the time of filing, Opposer stated that its first use
`was at least as early as May 31, 1999.1 Applicant applied in Canada on March 8,
`1999, as an intent-to-use application, for the mark SANDHILL for its vs/‘Ines. Applicant
`filed its U.S.
`intent-to-use application on August 31, 1999, basing Ipriority on the
`
`I
`
`Canadian application.
`
`Applicant in discovery stated that its vineyard manager, Dick Cle‘,':ve, conceived of
`the mark SANDHILL for wines, and suggested it to Applicant, and that Applicant then
`learned of Opposer’s SANDHILL WINERY mark when it received frorn__f! a label designer
`
`samples of labels that the designer had made for Opposer. Applicanft did not provide,
`and refuses to provide, the dates and circumstances regarding those t\Ivo events.
`Opposer was talking to people and considering using the SAl\IDHlLL mark prior
`
`to 1999, and as early as 1992. Opposer believes it has a first use prio__'r to March 1999.
`
`B.
`
`ARGUMENT
`
`Opposer seeks and Order from the Court compelling Applicant
`
`to provide
`
`information requested in discovery requests. Applicant initially agreed to provide the
`
`.__
`
`I
`
`1 Opposer believes it has a first use date that predates Applicant’s construtlitive use date.
`OPPOSER'S FIRST MOTION FOR ORDER COMPELLING DISCOVERY
`KURT M- R“-ANDER TRIAL AND
`RESPONSES AND MEMORANDUM IN SUPPORT THEREOF —-2
`PATENT /*TT°RNEY AT LAW PC
`1014 ‘FRANKLIN STREET, suns 206
`VANCOUVER, WA 98660
`360.750.9931
`
`

`
`
`
`information, never provided it, and then,
`
`two months letter, sent a letter refusing to
`
`provide the information contending it was not relevant.
`
`Rule 26(b) (1) provides the standard:
`
`“Parties may obtain discovery regarding any matter, not privileged, that
`is relevant to the claim or defense of any party,
`For good cause, the
`court may order discovery of any matter relevant to the subject matter
`involved in the action. Relevant information need not be admissible at
`the trial
`if the discovery appears reasonably calculated to lead to the
`discovery of admissible evidence. All discovery is
`subjecfzt
`to the
`limitations imposed by Rule 26(b)(2)(i), (ii), and (iii).”
`-'
`
`information concerning the actual knowledge of the other party’s use of the
`
`movant’s involved mark, including whether there was actual knowledge thereof, and if
`
`so, when and under what circumstances it acquired such knowledge, is discoverable.
`
`§ee_3 Volkswagenwerk Aktiengesellschaft v. MTD Products, lnc., 181 U$PQ 471 (TTAB
`
`1974); American Optical Corp v. Exomet lnc., 181 USPQ 120 (TTAB 11974); gee alsg
`
`TBMP 419 1119. So to, information concerning a party’s selection an_g:j adoption of its
`
`involved mark is discoverable.
`
`_S_ee Varian Associates v. Fairfield-Nioble Corg., 188
`
`USPQ 581 (TTAB 1975); Goodyear Tire & Rubber Co. v. Tyrco Industries, 186 USPQ
`
`207 (TTAB 1975); Volkswagenwerk Aktiengesellschaft, supra; see _a_l_sg: TBMP 419 $[4.
`
`Here, Opposer requested,
`
`in interrogatories and supplemental requests the
`1
`
`following: (1) the label supplier (name, address, and contact person)land the literature
`received; (2) the literature package received; (3) the name of the management company
`that manages Applicants vineyards? (4) the address and phone number of Dick Cleave;
`(5) whether Dick Cleave a corporate agent precluding Opposefis counsel
`from
`contacting him directly; (6) the date did Dick Cleave made the suggestion for the mark
`
`2 Applicant contended in discovery responses that Dick Cleve, the manager of Applicant’s
`vineyards, conceived of the mark SANDHILL and suggested it to Applicant!
`OPPOSER'S FIRST MOTION FOR ORDER COMPELLING DISCOVERY
`KURT M RYLANDER TRTAL AND
`RESPONSES AND MEMORANDUM IN SUPPORT THEREOF --3
`PATENT ATTORNEY AT LAW PC
`1014 FRANKLIN STREET, SUITE 205
`VANCOUVER, WA 98660
`360.750.9931
`
`,_
`
`

`
`
`
`SANDHILL to Applicant; (7) the date Dick Cleave conceived of the mark SANDHILL for
`
`Applicant; (8) identify Applicant’s label designers and manufacturers between 1999 and
`the present, and who designed and/or manufactured the SANDHILL labell for Applicant;
`(9) identify whether Applicant ever had financial dealings with any bankers in Silicon
`
`valley, if so, what financial institution and who were the contact people.
`
`This information was noted as due and requested by letter dated November 8,
`2002. Opposer reiterated the request on December 9, 2002. Applicant,
`counsel, on
`December 13, 2002, agreed to provide this information the next week.
`'l,Lhe information
`was not provided. Opposer notified Applicant of the outstanding requestjlon January 20,
`2003. Applicant
`ignored Opposer’s letter. Opposer again, on Febrjtiary 25, 2003,
`noticed the now 4 months over due information requesting that it be provided.
`In
`response, Applicant sent a large letter in which Applicant stated it refused to provide a
`large portion of the information requested based on relevance. Applica-fant rejected the
`earlier, December 13, 2002 agreement. Applicant also refused to agree to extend the
`discovery schedule so that this could be worked out.
`‘
`
`Applicant contends that the label designer information is irrelevant. However,
`
`learned of Opposer’s
`first
`it
`in its discovery responses, admitted that
`Applicant
`SANDHILL mark when it received,_ from a label designer, samples of labels that the
`label designer had made for Opposer.
`Specifically, Opposer wants the dates and
`surrounding documents and circumstances to pin Applicant down as to when those
`
`labels were received, and what was in the package sent.
`
`;
`
`Applicant contends that the bank information is irrelevant. Hlfowever, Applicant
`
`presented its SANDHILL label and wine in meetings with Califorfnia Bankers.
`
`If
`
`OPPOSER’S FIRST MOTION FOR ORDER COMPELLING DISCOVERY
`RESPONSES AND MEMORANDUM IN SUPPORT THEREOF --4
`
`i
`
`RYLANDER TR'N— AND
`KURT
`PATENT ATT°RNEY AT LAW PC
`1014 FRANKLIN STREET, some 206
`VANCOUVER, WA 98660
`360.750.9931
`
`

`
`
`
`Applicant derived its mark from those same bankers, Opposer would have another
`
`ground for its derivation argument.
`
`WHEREFORE, the Board should grant Opposer’s motion.
`
`DATED THIS March 4, 2003
`
`Respectfully submitted,
`
`
`
`DER TRIAL; AND
`KURT M. RY
`PATEN
`’TT RNEY AT LAW PC
`
`
`
`
`
`./
`
`
`~, Reg.;'No. 43,897
`URT M. RYLAN
`1014 Franklin Street, Suite 206
`Vancouver, WA 98660
`i
`(360) 750-9931
`Attorney for Opposer
`
`
`
`CERTIFICATE OF SERVICE TO APPLICANT
`
`inserted an envelope
`I HEREBY CERTIFY that on the date signed below I
`containing the document to which this certificate is attached into theIU.S. Mails, first
`class, postage pre-paid, addressed to the attorney of record for the Applicant, Nancy J.
`Moriarty, Chernoff Vilhauer McClung & Stenzel, L. . so SW 2nd iAve, 1600 ODS
`
`)228—4373. Tower, Portland, Oregon 97204 and by facsiv - / 4
`
`DATED March 4, 2003
`
`Certificate of Mailing
`
`I hereby certify that on the date signed below the
`original and two copies of the document to which this
`certification is attached is being deposited with the
`United States Postal Service as first class mail
`in an
`envelope addressed to BOX TTAB NO FEE, Assistant
`Commissioner for Trademarks, Trademark Trial and
`Appeal Board, 2900 Crystal Drive, Arlington, VA
`22202-3
`
`,'
`I
`
`
`
`OPPOSER’S FIRST MOTION FOR ORDER COMPELLING DISCOVERY
`RESPONSES AND MEMORANDUM IN SUPPORT THEREOF --5
`
`KURT MI RYLANPER TRIAL AND
`PATENT ATT°RNEY AT LAW PC
`1014 FRANKLIN STREET, sum: 206
`VANCOUVER, WA 98660
`T
`360.750.9931
`
`

`
`
`
`
`
`t
`
`KURT M. RYLAND ER
`TRIAL 3; PATENT ATTORNEY AT LAW 1>;c
`
`November 08, 2002
`
`BY FIRST CLASS MAIL
`Nancy J. Moriarty
`Chemoff Vilhauer McClung & Stcnzel, L.L.P.
`601 SW 2nd Ave,
`1600 ODS Tower
`Portland, OR 97204
`
`’
`
`-
`
`RE:
`
`SANDHILL OPPOSITION
`
`Dear Ms. Moriarty:
`
`1=,‘i1e no. RMV03
`f
`
`-
`
`-
`
`‘
`3
`
`:
`,
`
`’
`
`In reviewing the interrogatory responses of Applicant, I discovered some
`responses not complete. The following needs completion:
`V
`f
`
`From Interrogatory No. 13: Who was the label; supplier (name,
`1.
`address, and contact person) and when was the literature receive.'d? What did the
`literature package consist of‘?
`V‘
`
`From Interrogatory No. 27: What is the name of,‘ the management
`2.
`~
`company that manages Applicant’s vineyards? What is the address and phone number
`of Dick Cleave? Is Dick Cleave a corporate agent precluding Oppo$er’s counsel from
`contacting him directly? When did Dick Cleave make the suggestion for the mark
`SANDHILL to Applicant? When did Dick Cleave conceive of the
`SANDHILL
`for Applicant?
`
`I
`
`1 will make them fomiail,
`
`Further," and if requested,
`interrogatories are presented:
`1.
`Who were Applicant’s label designers and manufactiirers between 1999
`and the present, and who designed and/or manufactured the SAjNDHILL label for
`Applicant?
`3
`
`the ‘following
`
`banke
`Has Applicant ever had financial dealings with
`2. ,
`valley, -ifso, what financial institution and who were the contacttpeiople?
`Exhib
`
`l
`
`4
`
`in Silicon
`
`Main Otfiec
`l0l4 Franklin Street
`Suite 206
`Vancouver, Washington
`98660
`Tcl: 360.750.993l
`Fax: 360.397.0473
`wvnv.rylInderhw.eom
`
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`_
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`_ Page
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`Please contact me with any‘ questions. Thank you.
`
`i
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`
`KURT M. RYLANDER 4
`
`KMR;wf
`
`V
`
`é
`
`Letter to
`
`Nancy J. Mofiargr
`November 08, 2002
`Page 2
`
`
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`

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`
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`I
`
`f
`KURT M. RYLANDER
`TRIAL & PATENT ATTORNEY AT LAW 1‘>c
`
`BY FACSIMILE AND
`FIRST CLASS MAIL
`
`December 09, 2002
`
`’.
`
`File no. RMV03
`3
`
`Nancy J. Moriarty
`Chemoff Vilhauer McClung & Stenzel, L.L.P.
`601 SW 2nd Ave,
`‘
`1600 ODS Tower
`Portland, OR 97204
`
`~
`
`5
`J
`5
`
`RE:
`
`SANDHILL OPPOSITION
`
`Dear Ms. Moriarty:
`
`Please reference my letter of November 8, 2002. Please note that we await
`your response. Please further note the upcoming discovery deadline of January 5,
`2003._ Please let me know this week your response to my November 8, 2002 letter,
`and also, in the alternative, whether you will oppose a motion to extend the discovery
`deadline until I can receive the information requested.
`I need your response this
`week.
`If you do not provide the information, and you oppose a motion to extend
`discovery, please let me know a convenient time this week when I can call and we can
`have a discovery conference on this issue. Thank you.
`
`
`
`KMR;wf
`
`
`
`Mnln Office
`I014 Franklin Street
`Suite 206
`Vancouver, Washington
`98660
`Tel: 360.750.9934 l
`Fax: 360.397.0473
`www.rylanderlaw.oom
`
`Practice Areas
`Patents, Tndernarks. Copyrights
`lnfringernerrt & Unfair Competition
`Government Contract Claims
`Federal Tort Claims
`Commercial Litigation
`Pasonal Injury
`Criminal Defense
`Federal Regulatory Disputes
`Trials and Appeals
`
`Licensed
`State ofWashington
`State ofOregon
`District of Columbia
`‘ US. Patent & Trademark Office
`Canadian Patent Office
`
`Member cl’ Bar
`US. Supreme Court
`Fedenl Circuit
`D.C. Circuit
`Court of international Trade
`Court of Fedenl Claims
`D.C. District Court
`Western District of Washington
`Eastern District ofWashington
`Southern District of Mnryland
`Distrid of Oregon
`
`Assocl.-(ions
`Am. Intellectual Prop. Law Assn
`Wash. State Patent Law Assn
`Ore. Patent Law Assn
`Assn of Trial Lawyers ol'Am.
`Wash. State Trial Lawyer’: Assn
`American Bar Assn
`Sea Intellectual Pmpedy Law
`Sec. Public Contract Law
`Federal Circuit Bar Assn
`Oregon State Bar Assn
`Sec. Intellectual Property
`Sec. Litigation
`Sec. Business Litigation
`Multnomah Bar Assn
`Washington State Bar Assn
`Sec. Litigation
`Sec. Intellectual Property
`Clark County Bar Assn
`Clark Criminal Defense Bar
`Districl of Columbia Bar Assn
`Federal Board of Contract Appeals
`Bar Assn
`
`

`
`
`
`MEMORANDUM
`
`To:
`
`File
`
`From:
`Date:
`Client
`Matter:
`File number:
`
`Kurt Rylander
`December 13, 2002
`RMV Cellars LLC
`DING - RMV03
`DINGIRMVO3
`
`‘
`
`5
`é
`
`'-
`5
`
`‘V
`
`M
`
`On December 13, 2002 at 12:45 PM I made a telephone call to Nancy J. Moriarty (telephone number +1 (503) 227-5631).
`We spoke. The call lasted 00:00:03
`’
`
`she will get me information next week; she will prepare and file motion to extend discovery schedule
`
`-
`
`
`
`Exhibit C
`Page___1_;__of _Z__,
`
`

`
`
`
`:5
`KURT M. RYLANDER
`TRIAL & PATENT ATTORNEY AT LAW PC
`
`.1
`
`January 20, 2003
`
`.
`BY FACSIMLE AND
`
`FIRST CLASS MAIL
`
`Nancy J. Moriarty
`Chemoff Vilhauer McC1ung & Stenzel, L.L.P.
`601 SW 2nd Ave,
`1600 ODS Tower
`Portland, OR 97204
`
`RE:
`
`SANDHILL OPPOSITION
`
`Dear Ms. Moriarty:
`
`1
`
`File no. RMVO3
`-
`
`1
`1
`3
`
`i
`I
`
`Please reference by November 8, 2002 and December 9, 2002 letters. Please
`note that we continue to await for the information requested.
`It is my understanding
`from your previous correspondence that your client would scion provide this
`information.
`For your convenience, I list below the information
`requested in my
`November 8, 2002 letter, as being needed to complete your client’s" responses to the
`outstanding discovery requests:
`
`From Interrogatory No. 13: Who was the label supplier (name,
`1.
`address, and contact person) and when was the literature received? What did the
`literature package consist of‘?
`‘
`
`From Interrogatory No. 27: What is the name of the management
`2.
`company that manages Applicant’s vineyards? What is the address [and phone number
`of Dick Cleave? Is Dick Cleave a corporate agent precluding Oppo‘ser’s counsel from
`contacting him directly? When did Dick Cleave make the suggestion for the mark
`SANDHILL to Applicant? When did Dick Cleave conceive of the mark SANDHILL
`for Applicant?
`
`and if requested,
`Further,
`interrogatories are presented:
`
`I will make them fornial,
`9
`
`the following
`
`Exhibit; D
`
`
`
`Page ; of
`
`Main Office
`1014 Franklin Street
`Suite 206
`Vancouver, Washington
`98660
`Tel: 360.750.9931
`Fax: 360.397.0473
`www.xyl.andc-rhw.eovn1
`
`Pnctice Am:
`
`, meats. Tndamrks. Covyriahk
`infringement 3. Unfair compeduon
`Government Contnd Claims
`Fedenl Ton Chins
`commaai Litigation
`Personal Injury
`Criminal Defense
`Federal Regulatory Disputes
`Trials and Appeals
`
`Licensed
`State ofWashington
`Stat: ofOregon
`Distnet’‘ ofColumbia"
`US. Patent 8:. Tndemark Office
`Canadian Patent Olfice
`
`Member ofBar
`US. Supreme Court
`Federal Cizwit
`D.C. Circuit
`Court of International Trade
`Court of Federal Claims
`D.C. District Court
`wcszan Dim-let orwashingcon
`Easternbistrictofwnshington
`Southern District ofM.u-yland
`Disuietoforegon
`
`Associations
`Am lntellectual Prop. Law Assn
`Wash. State Patent Law Assn
`Om. Patent Law Assn
`Assn ofTrial Lawyers ot'AnL
`Wish. State Trial Lawyer’: Ass:
`American Bar Assn
`Sec. Intellectual Property Law
`Soc. Public Contract Law
`Federal Circuit Bar Assn
`Oregon State Bar Asn
`Sec. Intellectual Property
`Sec. Litigation
`Sec. Buslnas Liligullan
`Multnomah Bar Assn
`Washington State Bar Assn
`Set. Litigation
`Sec. Intellectual Property
`Clark County Bar Am
`Clark Criminal Defense Bar _
`District ofColumbia Bar Assn
`Federal Board ofconuact Appuls
`BuAssn
`
`

`
`
`
`"
`
`Letter to
`Nancy J. Moriargy
`5 January 20, 2003
`Page 2
`
`Who were Applicant’s label designers and manufacturers b_'etween 1999
`1.
`and the present, and who designed and/or manufactured the SANDHI}LL label for
`Applicant?
`-
`,'
`
`Has Applicant ever had financial dealings with any barikers in Silicon
`2.
`valley, if so, what financial institution and who were the contact people?
`
`I look forward to hearing from you. Please call if you have
`Thank you.
`
`questions.
`
`
`
`KMR;wf
`Cc:
`John Dingethal
`
`
`
`
`
`

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`F b 23 D3
`5 -
`-
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`03 429!!!
`2
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`From
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`’
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`_
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`LAW OFFICES
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`-
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`T-833
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`P.‘U0l/003
`y
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`F-405
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`CHEIRNOFF. VILHAUER, MCCLUNG 8. STENZEL. LLP
`
`
`' TIM A. LONG
`KUHT R09-I|..r=
`,
`' ERCNNA K. Lzcnano
`
`
`' fizsnsrcazfo PATENT An-cwmzv
`DAWO 5. Fan:
`, SENIOR LAw Ctcnn
`
`°.:A¢ou E. VILHAUER. JR
`‘ DENM-.'. E. STENZEL
`' CnAm.:: D. MCCLUN6
`'- DONALD B HASLCTT
`’ J. Pure: S1'APLu:s
`' WILLIAM G. GENY
`' NANCY J. MORIARTY
`.Ju|.u-.~NI:' R. DAV»:
`‘ KEVIN L. RN55-ELL
`
`DANIEL F. Cr-cznuarr
`(I935-I995)
`
`mT:LL:c1'uA|. Pnopznrv Law
`INCLUDING PA'rzN1'. TRADEnAm<_
`COPVR|¢r1'r AND UNPAIR
`Couucfvnon MA1-‘ran;
`
`nsoo cos TOWER
`eon s.w. secono AVENUE
`PORTLAND, OREGON 97204-3l5'7
`TELEPHONE: (503) 227-5631
`FAX: (503) 228-4373
`
`a-mail: nancy@chemotflaw.com
`
`February 26, 2003
`
`e our I” led 7515.000:
`
`VIA FACSIMILE -
`
`(360) 397-0473
`
`Kurt M. Rylander
`Kurt M. Rylander Trial and
`Patent Attorney at Law PC
`1014 Franklin Street, Suite 206
`Vancouver, WA 98660
`
`Re:
`
`RMV Cellars, LLC v. Calona wines Lrn.
`Qpposition flo- 91151393 [SANDHILL]
`
`Dear Kurt:
`
`‘
`
`fi
`—
`
`f
`
`i
`
`Igwould be
`In response to your February 25, 2003 letter,
`more than happy to talk with you regarding discovery. Myiclient is
`gathering information regarding Contact information for Dick Cleve.
`The remaining information you requested is not likely to lead to
`the discovery of relevant information.
`5
`
`I am still awaiting supplementation to your discovery
`responses. As you know, you are obligated to answer
`.
`interrogatories unless the information is available in already
`existing documents, which you may then submit instead. There are
`numerous interrogatories to which you did not respond andidid not
`produce responding documents.
`For example,
`in response to
`Interrogatory No. 1 you did not state Ding1ethal's date of birth,
`home address, business address and office now held in theéopposer
`corporation, and offices and positions held-during the past 10
`years. Similarly, you did not provide the detailed information we
`requested in Interrogatories No. 2.
`In Interrogatory No.53, we
`asked you to identify by individual common commercial name all
`goods and services that have been sold or offered for sale by your
`client. You have mentioned wine bottles and cases. You did not
`mention the wine or the types of wine.
`
`In Interrogatory No. 4, you provided a copy of a single
`wine label for the 1997 Cabernet Sauvignon. However, yougdid not
`
` I
`
`E:
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`Ebdfibfi
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`Page_.i;°f ———-*3
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`

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`
`
`Feb-_2S-03
`
`03:42pm
`
`From-
`LAW OFFICES
`
`I
`
`Cnznuorn VuMAUER.MCCLUNG 5 STENzEk LLP
`
`February 26, 2003
`Page 2
`
`A‘
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`T-B33
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`provide the date of first use for such label or whether she same is
`currently in use. This is a critical issue in this cases
`
`You did not provide a sufficient answer to Intdrrogatory
`No. 5 regarding your date of first use and the circumstances
`,
`surrounding such use. nor did you provide the informatiod requested
`in Interrogatory No. 6.
`
`J1
`
`Interrogatory No. 9!asks you
`The list goes on and on.
`to identify searches, clearances, watch services and other
`inquiries directed to the marks SANDHILL, SANDHILL WINERY, or any
`variant of SANDHILL, and to state specific information.
`{Your
`response simply directs me to a document production which contains
`no information regarding searches. We need a complete response for
`Interrogatory No. 9.
`gI
`
`Interrogatory No. 10 requests you to identify qhe
`channels of trade through which opposer’s wines travel or are
`proposed to travel. As you should know, channels of trade is a
`basic factor in the likelihood of confusion test.
`I canit believe
`that you gave me such a ridiculous answer.
`If you are not familiar
`with trademark law, bone up or associate a competent trademark
`attorney. Please provide the requested information.
`'
`
`Regarding Interrogatory No. 11, as you should also know
`sales volume is an important piece of evidence to show the strength
`of the mark, which is another one of the factors in the iikelihood
`of confusion test.
`I suggest you read McCarthy on Trademarks and
`provide us the information requested.
`
`'I
`
`'
`Apparently there was a typographical error in E
`.
`Interrogatory No. 12.
`The request should have stated, “State the
`date and circumstances under which opposer first became aware of
`applicant." ‘Please respond to this request.
`If I need so put it
`in writing, please notify me immediately.
`‘
`
`Likewise Interrogatory No. 13 should state, “Identify all
`circumstances in which any agent, servant or employee ofgopposer
`had a conversation with any employee or agent of applicant."'.
`Please excuse the error and let us know whether you williprovide a
`response or whether I need to put this in the form of a formal
`request.
`iI
`
`We are still awaiting documents responsive to the
`document requests. You have produced very little and your
`investigation should be finished by now. Please supplement the
`
`Emifibu
`
`
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`i?/
`é;9’ofi;i§§__
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`Page
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`Fab-33-03
`
`03:42pm
`
`From-
`
`LAW OFFICES
`Cnenuorr. VILHAUER. MCCLUNG 5. STENZEL, LLP
`
`February 26, 2003
`Page 3
`
`T-B33
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`P D03/U03
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`F-405
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`requests immediately. As you should know, expenditures for
`advertising and promoting a product as requested in Request No. 10
`are relevant to the strength of the mark. Please check Mccarthy on
`Trademarks regarding such matter and provide such information
`immediately.
`
`As I discussed above with respect to the interrogatories,
`documents regarding sales as requested in Request No. 12 are very
`relevant to the strength of the mark. Please provide the_documents
`immediately._
`
`You have objected to o