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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`IN THE MATTER OF Application Ser. No. 76/3 02,551 for the trademark RED RAVE
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`Opposition No. 91152588
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`RED BULL GMBH,
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`Opposer,
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`V.
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`CARL COCHRAN,
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`Applicant.
`M E 5
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`APPLICANT’S REPLY IN SUPPORT OF MOTION TO QUASH OPPOSER’S
`TRIAL TESTIMONY DEPOSITION, OR
`IN THE ALTERNATIVE TO STRIKE OPPOSER’S TRIAL TESTIMONY
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`Applicant respectfully submits this reply brief in support of his Motion to Strike Trial
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`Testimony (“Motion”).
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`BACKGROUND FACTS
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`The relevant facts, which are mostly undisputed, were set forth in the Motion. Aside
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`from the Opposer's attempt to spin them in the best possible light, the fundamental facts stated by
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`Opposer in its brief generally concur with those presented by Applicant. Applicant nevertheless
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`must provide the following clarifications and additional details:
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`l.
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`Opposer's first telephonic inquiry regarding its testimony period was a "voice
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`mail" message left on undersigned counsel’s phone at 10:30 a.m. June 4, 2003. Undersigned
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`counsel for Applicant certifies, however, that he did not review the content of the message until
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`sometime after noon that day.
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`2.
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`Undersigned counsel further affirms that the following is the verbatim content of
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`Opposer's June 4 voice mail message‘:
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`Hi Rod, Neil Greenstein. I'm calling for my brother Marty on the Red Bull versus
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`Carl Cochran, uh, opposition. Marty is in Africa right now, and I wonder if you
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`could give me a call. I need to talk with you regarding, um, scheduling of a
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`testimony deposition, um, and we were going to schedule that for early next week.
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`Umm, having some scheduling problems. If we need to we can, but wanted to
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`talk with you about that, see if you'd be willing to, uh, continue dates out a little
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`bit. Um, if you could let me know today, I'd appreciate it. -408-280-2228, again
`Neil Greenstein. Thanks a lot.
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`Thus, the June 4, 2003, telephone message did not mention "Monday" or any date or place for the
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`deposition. The thrust of the message was to solicit a waiver of the June 8 testimony period
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`deadline due to "scheduling problems" apparently stemming from Opposer's attorney's trip to
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`Africa.
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`A
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`3.
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`Applicant responded to the foregoing message by Federal Express® courier,
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`rather than fax, because he anticipated that the present Motion would be vigorously contested;
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`counsel for Applicant avoided any controversy about the content of his message and whether it
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`was received.
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`4.
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`Counsel for Applicant was preoccupied with other litigation during Opposer's
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`June 5-6 panic period, but he did not intentionally "refuse to take any calls" from Opposer's
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`attorneys. The undersigned attorney had a live telephone conversation with Neil Greenstein,
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`attorney for Opposer, on the afternoon of June 5, 2003, in which the former mentioned his
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`unavailability and confirmed his intention to file the present Motion, and the latter indicated
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`Opposer's intention to conduct the deposition anyway. See Exhibit 2 to Opposer's Opposition
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`brief.
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`‘ A true and correct sound recording of the foregoing message is available on request.
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`REPLY IN SUPPORT OF MOTION TO STRIKE — Page 2
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`ARGUMENT
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`The deficiencies in both the manner and timing of the Notice of Taking Testimony
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`Deposition are plain. Opposer’s effort to manufacture proper notice out of its last-minute phone
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`calls and e~mails should be rejected, and all testimony taken pursuant to the tardy Notice should
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`be stricken.
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`To be properly evaluated, the Motion should be placed in its equitable context. First, it
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`should be noted that Opposer is a multi-national corporate conglomerate. Its products and trade
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`dress allegedly "have been extensively advertised in the United States and throughout the world."
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`_S_e§ Notice of Opposition, 1] 6. In marked contrast, Applicant is an individual struggling to start a
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`new business, and as such has limited resources to devote to litigation such as this.
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`And while Opposer deems "irrelevant" the fact that it failed to respond to discovery, such
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`abject failure not only is germane, it directly bears upon the merit of the present Motion. Had
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`Opposer been as "communicative" about discovery as it was in its hasty effort to notice the
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`deposition, the need to file this Motion may never have arisen.
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`Method of Service
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`Applicant admits that a "courtesy" copy of the Notice was transmitted by telephone
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`facsimile at around 7:00 o'clock p.m. (Albuquerque time) on the night of June 4. The use of
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`facsimile transmissions, however, is completely optional with the sender, and cannot substitute
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`for proper service. T.B.M.P. §l 13.04. Undersigned counsel certifies, as a matter of fact, that
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`Opposer’s mailed Notice was received in Albuquerque office on June 9, 2003 - probably after
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`the deposition had already started. To argue that the legally proper service was “due" defies
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`00111111011 S€IlS6.
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`Due Notice
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`On the morning of June 5, Applicant had actual notice, for the first time, of the details of
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`the noticed deposition. This fact is uncontested. June 5 was a Thursday, and the deposition was
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`REPLY IN SUPPORT OF MOTION TO STRIKE — Page 3
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`noticed for the following Monday. Under any reasonable standard, and certainly under the
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`circumstances of the present case, this is undue and unreasonable notice. Further, as a strictly
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`legal matter, under Federal Rules of Civil Procedure, Rule 6(a), the day a notice is received is not
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`counted in any time computations. And for pertinent time periods of less than 11 days ~ the
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`situation here ~ intermediate Saturdays and Sundays likewise are excluded from time
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`calculations. Fed. R. Civ. P. 6(a). From a purely technical standpoint, Opposer is advocating
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`that one day, Friday June 6, constituted "due" notice.
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`Opposer rationalizes at length regarding its overtures to Applicant seeking a stipulated
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`extension of Opposer's testimony period. Opposer also accuses counsel for Applicant of refusing
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`to return its calls, and engaging in other discourtesies, regarding the Notice of Deposition.
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`Wrong. The overriding discourtesy here was Opposer's months of total silence regarding this
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`Opposition, followed by its galling expectation that Applicant suddenly drop everything to
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`permit Opposer to press its case.
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`Discovegg Dispute
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`This Motion is not an attempt to litigate Opposer's admitted failure to comply with
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`discovery. The time for that has passed, and Applicant is not seeking a motion to compel. But
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`the Opposer's misconduct in that regard, by itself, justifies granting the relief sought by this
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`Motion to Strike. In effect, Opposer now requests the indulgence of the Board to overlook the
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`prejudice to Applicant wrought by Opposer's unreasonable notice. But Opposer never responded
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`to Applicant's discovery requests, let alone asked for more time to comply. Opposer thus comes
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`to the Board with unclean hands — asking for leniency, but utterly failing to deserve it. Applicant
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`urges the Board not to condone Opposer's cavalier attitude, if not contempt, for the rules of
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`discovery by excusing Opposer's apparent disregard for the testimony periods set by the Board in
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`its order of August 22, 2002.
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`Moreover, only industrial-strength self-righteousness can explain how Opposer could
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`flout Applicant's discovery requests, and yet have the audacity to feign outrage when Applicant
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`REPLY IN SUPPORT OF MOTION TO STRIKE — Page 4
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`declined Opposer's plea for an extended testimony period. Had Opposer been courteously
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`forthcoming with the obligatory discovery responses, Applicant may have reciprocated with a
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`deadline waiver. But for Applicant compliantly to cooperate with Opposer's time request, after
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`Opposer had so abused Applicant, would be self-destructive folly on Applicant's part. In sum,
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`Applicant was well within his rights to refuse to re-schedule the deposition outside the pertinent
`testimony period. All of Opposer's griping about Applicant's supposed "discourtesy" is specious.
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`Inconvenience to Applicant
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`Opposer attempts to minimize Applicant's costs to comply with the tardy notice. As the
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`basis of its argument, Opposer compares the airfare from Albuquerque to Los Angeles for
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`booking on June 10 a flight on June 14 versus a flight on June 11. (Both June 11 and 14 were
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`outside Opposer‘s testimony period.) This contention misses the point. A proper comparison
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`would have been booking on, say, May 23 and June 10. Counsel for Applicant makes use of
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`Southwest Airlines, it being the principal carrier out of Albuquerque. Upon information and
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`belief, Applicant states that round trip flights to Los Angeles via Southwest Airlines can be had
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`for as little as about $150, if booked at least fourteen days in advance. Opposer's dilatory notice
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`deprived Applicant, without cause, of the reduced fares available with reasonable notice.
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`Opposer also gives no consideration to the fact that Applicant, as well as his attorney,
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`reasonably could be expected to make the trip to Santa Monica. This is especially so since
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`Opposer evidently expected Applicant to prepare for the deposition en route thereto. All last-
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`minute expenses, therefore, would have been doubled to account for two travelers.
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`Both Applicant and his attorney are busy men. On June 5, the undersigned had barely
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`returned from Washington, D.C., where he participated in the appellate oral argument of a multi-
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`million dollar patent infringement case? After preparing for and participating in that argument,
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`2 Medical Instrumentation and Diagnostics Corp. v. Elekta AB, et al., U.S. Court of Appeals for
`the Federal Circuit, No. 03-1032 (argued June 2, 2003).
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`REPLY IN SUPPORT OF MOTION TO STRIKE — Page 5
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`he returned to Albuquerque to an "in basket" full of aging and important matters. Nothing
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`obligated him to go out of his way to accommodate Opposer's "scheduling problems."
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`Precedental Cases
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`Opposer cites both Jean Patou Inc. v. Theon Inc., 18 U.S.P.Q.2d 1027 (TTAB 1990) and
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`Duke Univ. v. Haggar Clothing Co., 54 U.S.P.Q.2d 1443 (TTAB 2000) in support of its
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`response. Applicant likewise invites the Board's attention to those cases. Both held that a party
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`had given inadequate notice of deposition. Opposer seeks to distinguish these decisions,
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`essentially, on the wispy basis that they involved only one or two business days’ notice -- ''totally
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`different," contends Opposer, from the one-business—day-plus-a-weekend notice afforded to
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`Applicant. Actually, the most significant difference between the instant matter and Jean Paton is
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`that opposer in that case "filed a motion for extension of its testimony period prior to the close of
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`that period, and that good cause existed” for granting such an extension. Jean Patou at 1075
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`(emphasis added). Here, Opposer neither filed such a motion nor has shown any good cause for
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`granting one. And in Duke Univ., the movant had been given informal written warning, well in
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`advance, of the applicant's intention to take testimony and of dates for the opposer to "keep open"
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`for that purpose.
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`I_d_. at 1444. Opposer did not extend any such courtesy to Applicant. Because
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`Applicant has timely moved to strike, the testimony should be stricken. C_f. Beech Aircraft Corp.
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`V. Lightning Aircraft Co., 1 U.S.P.Q.2d 1290, 1291 (TTAB 1986) (motion to strike trial
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`testimony deposition denied because untimely made).
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`CONCLUSION
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`For the foregoing reasons and those articulated in the Motion, Applicant respectfully
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`requests that the Board order that the testimony of Robert Sorenson, taken pursuant to Opposer's
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`Notice dated June 4, 2003, be stricken in its entirety and be deemed inadmissible at the trial of
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`this matter.
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`REPLY IN SUPPORT OF MOTION TO STRIKE — Page 6
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`Dated this 3th day of July, 2003
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`PEACOCK MYERS & AD
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`S, P.C.
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`Rod D. Baker
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`P.O. Box 26927
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`Albuquerque, New Mexico 87125-6927
`Telephone: (505) 998-1500
`Attorneys for Applicant
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`I certify that on July 3, 2003, I caused one copy of the foregoing Reply brief to be served
`by United States first—class mail, postage prepaid, upon:
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`Certificate of Service
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`Martin R. Greenstein
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`Techmark
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`-
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`55 So. Market Street, 16”‘ Floor
`San Jose, California 95113
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`Rod D. Baker
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`CERTIFICATE OF EXPRESS MAILING
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`“Express Mail” Mailing Label Number EV342337857
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`This certifies that the forgoing Reply Brief is being deposited with the United States
`Postal service “Express Mail Post Office to Address” service under 37 CFR 1.10 on July 3, 2003,
`and as addressed to the Commissioner for Trademarks, Box: TTAB, 2900 Crystal Drive,
`Arlington, VA 22202-3513
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`Michael Houck, Paralegal
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`REPLY IN SUPPORT OF MOTION TO STRIKE — Page 7
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