a
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`.
`
`A
`
`TTAB
`
`1
`’
`
`Attorney Docket No. 21730-1
`
`CERTIFICATE OF MAILING
`
`I hereby certify that this correspondence is being deposited with
`the United States Postal Service as First Class Mail in an envelope
`addressed to: Commissioner for Trademarks, P.O. Box 1451,
`Alexandria, VA 22313-1451 on May 19, 2006.
`
`TOWNSEND and TOWNSEND and CREW LLP
`
`
`
`
`
` 1- »_ -(J .._4.‘L..-{
`Eddie L. Shine
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application Serial No. 78/185,037
`Mark:
`PURE JUICE
`
`Applicant:
`Published:
`
`Sandalz, Inc.
`June 24, 2003
`
`GREGORY JOHNSON,
`
`Opp°s°r’
`
`V.
`
`Opposition No. 91/157,498
`
`OPPOSER'S MOTION FOR
`PARTIAL SUMMARY JUDGMENT AND
`
`TO SUSPEND PROCEEDINGS
`
`Applicant.
`
`SANDALZ, INC.,
`
`Commissioner for Trademarks
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Madam:
`
`Applicant Sandalz, Inc. (“Applicant”), in its discovery responses, has alleged that it
`
`acquired the PURE JUICE mark from a predecessor-in-interest and thus is the senior user of the
`
`PURE JUICE mark. The issue of whether one can claim succession of another’s trademark
`
`rights is a question of law. A review of the documents produced by Applicant in discovery,
`
`which Applicant has attested are complete with regard to this issue, shows that App1icant’s
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`evidence is insufficient as a matter of law to demonstrate that it has acquired any rights in the
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`
`Opposition No. 91/157,498
`
`

`
`1|
`
`mark PURE JUICE from a prior user. Therefore, Opposer Gregory Johnson (“Opposer”)
`
`moves the Board for partial summary judgment on the issue of whether Applicant acquired the
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`rights to the PURE JUICE mark from a prior user. As will be discussed herein, the evidence is
`
`conclusive, and there is no dispute of fact. As a matter of law, Applicant may not rely on this
`
`theory of priority in this opposition proceeding, but must prove it has used the mark in
`
`commerce, or rely on its filing date in order to establish priority to Opposer.
`
`Opposer believes that having the Board determine this issue by partial summary
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`judgment will be beneficial to both the Board and the parties, as it will significantly reduce the
`
`issues and the material facts to be litigated at trial and allow this case to be presented in a fairer,
`
`more coherent and streamlined fashion for proper adjudication by the Board. If not adjudicated
`separately, Applicant's unsupported claim of succession to rights to the mark in dispute from
`
`alleged predecessors has the real potential for disrupting and delaying completion of the trial
`
`herein and detracting from the true issues in dispute to be decided by the Board.
`
`1.
`
`STATEMENT OF UNDISPUTED FACTS
`
`The story of the PURE JUICE mark began in 1987 when Opposer, through his former
`
`company, World Pac Trade Company, adopted the mark for his sandals and through significant
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`sales and marketing of his products, earned substantial good will among consumers. In 1991,
`
`World Pac Trade Company changed its name to Pure Juice Inc. In the fall of 1996, the assets
`
`(including trade names and marks) of Pure Juice, Inc. were sold to Gellis, Inc. (“Ge1lis”), of
`
`which Joe Ellis was President. See Exhibit A to Declaration of Elizabeth R. Gosse submitted
`
`herewith (“Gosse Decl.”) (Applicant’s Response to Opposer’s Interrogatory No. 26); Gosse
`
`Decl., Ex. D. In late 1997, Gellis began negotiations with CARV Industries, Inc. (“CARV”) to
`
`sell the PURE JUICE business. In connection with those negotiations, a letter dated January 18,
`
`1998, addressed to Joe Ellis by CARV gave Mr. Ellis the right to:
`
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`Opposition No. 91/157,498
`
`-2-
`
`
`
`

`
`use the “Pure Juice” name and logo, for a period of twelve months from today’s date.
`Mr. Ellis agrees and acknowledges that CARV.com, Inc. does not have a trademark on
`the name, nor is it representing to him that it has any rights in the name.
`
`See Gosse Decl., Ex. E.
`
`In a letter dated August 3, 1998 written by CARV’s chairman to Gellis’
`
`Board of Directors complaining of the problems encountered in concluding the purchase of the
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`PURE JUICE business, CARV’s chairman recited that “Gellis failed to inform CARV that they
`
`have NO right to the ‘Pure Juice’ trademark; in fact, Gellis knew it belonged to a third party and
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`still did not disclose this to CARV.” See Gosse Decl., Ex. F. The acquisition by CARV appears
`
`to have been concluded shortly thereafter on August 6, 1998, and Gellis continued to operate the
`
`PURE JUICE business as a subsidiary of CARV. See Gosse Decl., Ex. G.
`
`In November 1998, Applicant Sandalz, Inc. was formed by Joe Ellis and Nancy Johnson.
`
`See Gosse Decl., Ex. A (Applicant’s Response to Opposer’s Interrogatory No. 2). In December
`
`1998, CARV issued a press release that it had terminated Joe Ellis as President of Gellis, and
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`stated that it would continue its PURE JUICE line of business subsequent to his departure afier
`
`reorganization of the business. See Gosse Decl., Ex. H.
`
`In January 1999, Mr. Ellis became
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`Sandalz’s Vice-President and Secretary. See Gosse Decl., Ex. 1.
`
`After becoming aware that neither Gellis nor CARV would continue their operations of
`
`the PURE JUICE business, Opposer began plans in 2000 to relaunch his PURE JUICE
`
`business and began making contacts with investors and distributors. In late 2002, Opposer
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`discovered that Applicant was describing itself on its sandalz. com website as “the manufacturers
`
`of Pure Juice,” though Applicant was not selling sandals bearing the PURE JUICE mark. See
`
`Gosse Decl., Ex. J. On November 5, 2002, Opposer sent a letter to Applicant demanding it cease
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`referring to itself as “Pure Juice,” as it was Opposer’s intent to relaunch the PURE JUICE brand
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`that he started fifteen years before and for which he had already arranged investors and
`
`distributors. See id. Upon receiving this information, rather than comply with Opposer’s
`
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`
`Opposition No. 91/157,498
`
`-3-
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`

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`request, Applicant rushed to file an intent-to-use application for the PURE JUICE mark on
`
`November 14, 2002, which is the subject of this opposition.
`
`II.
`
`STANDARD FOR PARTIAL SUMMARY JUDGMENT
`
`Summary judgment is appropriate under Rule 56(c) of the Federal Rules of Civil
`
`Procedure when there is no genuine issue as to any material fact. See Fed.R.Civ.P. 56(c); TBMP
`
`§ 528. The motion for summary judgment must be granted if there is insufficient evidence for a
`
`jury to return a verdict for the non-moving party. See Anderson v. Liberty Lobby, Inc., 477 U.S.
`
`242, 248-252 (1986). A party seeking to recover upon a claim may move for a summary
`
`judgment in the party’s favor upon all or any part thereof. See Fed. R. Civ. P. 56(a).
`
`Where the moving party does not bear the burden of proof at trial on the issues raised, it
`
`is not required to produce evidence that negates the non-moving party’s claims. See Celotex ‘
`
`Corp. v. Catrett, 477 U.S. 317, 325 (1986). In this case, Applicant, as the party claiming to have
`
`acquired rights to the PURE JUICE mark from a predecessor-in-interest, has the burden of
`
`proof that it has in fact acquired such rights. The burden on the moving party at summary
`
`judgment, in this case Opposer, may be discharged by pointing out to the court that there is an
`
`absence of evidence to support the non-moving party’s case. See id.; TBMP § 528.01. Once the
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`moving party has carried its burden, the non-moving party must do more than “simply show that
`
`there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith
`
`Radio Corp., 475 U.S. 574, 586 (1986). The non-moving party may not rest upon the mere
`
`allegations or denials of its pleadings, but must produce specific facts showing that there is a
`
`genuine issue of fact for trial. See Fed.R.CiV.P. 56(e); Celotex, 477 U.S. at 324. If the evidence
`
`produced by the non-moving party is merely colorable, or not sufficiently probative to
`
`demonstrate a genuine dispute, summary judgment should be granted. See Anderson v. Liberty
`
`Lobby, Inc., 477 U.S. 242, 248-250 (1986). As Applicant has sworn that all evidence relevant to
`
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`Opposition No. 91/157,498
`
`-4-
`
`
`
`

`
`this proceeding has been provided to Opposer, and Opposer has seen no evidence to support
`
`App1icant’s claim that it has acquired rights in the PURE JUICE trademark from a prior user,
`
`partial summary judgment in favor of Opposer on this issue is proper.
`
`III.
`
`THERE IS NO EVIDENCE TO SUPPORT APPLICANT’S CLAIM IT
`
`SUCCEEDED TO THE RIGHTS OF THE PURE JUICE BUSINESS
`
`“To acquire title to a trademark and to prove priority of use to an earlier user in the chain
`
`of title, a person or company must be able to prove a chain of title extending back to the original
`
`user of the mark.” J. Thomas McCarthy, The Law of Trademarks and Unfair Competition,
`
`§18:15. “If the assignment is invalid, the ‘assignee’ is not entitled to such a succession of
`
`priority and must rely upon his own date of first use.” Id. at § 18: 1 8 (emphasis in original).
`
`There is no evidence to establish a chain of title from any prior user of the PURE JUICE
`
`trademark to Sandalz, Inc. Thus, Applicant must prove and rely upon its own use of the PURE
`
`JUICE mark, if any, or its application filing date to determine priority vis-a-vis Opposer.
`
`In its interrogatory responses,_App1icant purports that Mr. Ellis acquired the PURE
`
`JUICE mark from Gellis and thereafier transferred it to Sandalz, Inc. as his capital contribution
`
`to the company:
`
`Starting in approximately 1991 (and possibly earlier), the Pure Juice Mark was used by a
`business entity named Pure Juice, Inc. (“PJI”). On or about September 5, 1996, PJI sold
`all of its stock and assets -- including the Mark and all goodwill associated therewith -- to
`a business entity named Gellis, Inc. (“Gel1is”). In or about March 1998, Gellis sold all of
`its stock and assets - including the Mark and all goodwill associated therewith - to a
`business entity named Carve [sic] Industries, Inc. (“Carve”). In or about June 1998,
`Carve transferred certain assets - including the Mark, the goodwill associated with the
`Mark, and inventory bearing the Mark, to an individual name Joe Ellis.
`In or about November 1998, Applicant was formed by Joe Ellis and Nancy Johnson. Joe
`Ellis transferred his rights in the Mark and the goodwill associated therewith, and certain
`inventory bearing the Mark, to Applicant as the capital contribution of Joe Ellis.
`Applicant consequently has succeeded to the rights that arise from the prior use of the
`Mark.
`... Carve acknowledges that it does not own any rights in or to the Mark, and that
`all rights in and to the Mark are owned by Applicant.
`
`See Gosse Decl., Ex. A (Applicant’s Response to Opposer’s Interrogatory No. 26).
`
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`Opposition No. 91/157,498
`
`—
`
`-5-
`
`
`
`

`
`However, there is absolutely no evidence to support the transfer from CARV to Mr. Ellis,
`
`or from Ellis to Sandalz. The evidence merely shows that Gellis, Inc. acquired the PURE
`
`JUICE business from Pure Juice, Inc. in 1996 and that Gellis then sold the PURE JUICE
`business to CARV.
`.
`
`Opposer has diligently requested all evidence on this alleged transfer. See Gosse Decl.,
`
`Exs. A (Applicant’s Responses to Opposer’s First Set of Interrogatories Nos. _) and B
`
`(Applicant’s Responses to Opposer’s First Set of Document Requests Nos. _). Applicant
`
`now claims to have produced all documents and information on this issue. See Applicant’s
`
`Statement of Compliance with February 23, 2006 Discovery Order, filed March 27, 2006.
`
`However, the only piece of evidence even resembling a transfer of rights in the PURE JUICE.
`
`mark by CARV to Ellis is a one-page document from CARV that purports to grant Mr. Ellis a
`
`one—year license to use the mark, which expired on January 19, 1999. See Gosse Decl., Ex. E.
`
`Thus, any rights that Mr. Ellis may have acquired and transferred to Sandalz have long since
`
`expired, and all rights have reverted to the licensor, CARV. Further, there is no evidence to
`
`support Applicant’s statement in its interrogatory that “Carve acknowledges that
`
`all rights in
`
`and to the Mark are owned by Applicant.” In fact, the evidence shows the contrary -- that both
`
`CARV and Gellis warranted that they did not own the PURE JUICE mark.‘
`
`There is no evidence to establish a clear chain of title in the PURE JUICE mark,
`
`business and the goodwill attendant thereto from CARV to Sandalz, other than through Mr.
`
`1 These assertions of non-ownership that is found in the documents submitted herein appear to be
`the result of both companies’ assumption that they did not own the PURE JUICE mark, because
`the mark was owned by a third party. Thus, both companies went to great pains to disclaim any
`ownership of the mark to avoid liability for infringement to the third party or to one another for
`indemnification. Opposer submits that, with respect to this proceeding, the rights of such third
`party are not pertinent. This motion deals only with Applicant’s purported ownership of the
`
`Footnote continued on next page
`
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`Opposition No. 91/157,498
`'
`
`-6-
`
`

`
`Ellis’s affiliations with these companies. As Mr. Ellis was fired fi'om Gellis and was given only
`
`a questionable one-year license to use the PURE JUICE name and logo, it is clear that Mr. Ellis
`
`had not acquired the rights and goodwill in the PURE JUICE mark and business from CARV
`
`and thus had no rights to transfer to Sandalz, Inc. On the contrary, CARV and Gellis, Inc.
`
`intended to continue to operation of the PURE JUICE business subsequent to Mr. E11is’s
`
`departure. See Gosse Decl., Ex. H. Further, there is no evidence from which Applicant can
`
`establish that Sandalz acquired or otherwise assumed the PURE JUICE business from Gellis or
`
`CARV. Therefore, there is no evidence to support Applicant’s claim that it acquired the PURE
`
`JUICE mark or business from the prior user of the mark.
`
`Opposer has demonstrated that, as a matter of law, Applicant has failed to establish a
`
`clear chain of title to the former PURE JUICE business. Applicant, thus, cannot rely on its
`
`claim of succession to the rights of the prior user of the PURE JUICE mark and summary
`
`judgment on this issue is proper. Therefore, in order for Applicant to establish its priority in this
`
`opposition proceeding over Opposer, Applicant must prove use of the PURE JUICE mark in
`
`commerce, if any, or rely on its filing date.
`
`//
`
`//
`
`
`
`Footnote continued from previous page
`
`PURE JUICE mark as a result of its claimed acquisition of the PURE JUICE business and
`goodwill attendant thereto from CARV Industries, Inc.
`
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`Opposition No. 91/157,498
`
`-7-
`
`
`
`

`
`IV. MOTION TO SUSPEND
`
`Opposer asks that the trial schedule be suspended pending a ruling on this motion. An
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`early ruling in Opposer's favor on this issue will substantially simplify and streamline the factual
`
`issues for trial and thus will significantly affect the parties’ conduct during the testimony periods
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`and in preparation of their evidence and trial briefs. Thus, Opposer respectfully requests that the
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`proceeding be suspended pending disposition of Opposer’s motion for partial summary
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`judgment.
`
`Respectfully submitted,
`
`TOWNSEND and TOWNSEND and CREW LLP
`
`Dated: May 19, 2006
`
`Elizabeth R. Gosse
`
`Attorneysfor Opposer
`
`Two Embarcadero Center, 8th Floor
`
`San Francisco, CA 94111-3834
`Telephone: (415) 576-0200
`Facsimile: (415)576-0300
`
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`Opposition No. 91/157,498
`
`-8-
`
`
`
`

`
`PROOF OF SERVICE
`
`On May 19, 2006, I served the foregoing:
`
`OPPOSER'S MOTION FOR PARTIAL SUMMARY JUDGMENT
`
`AND TO SUSPEND PROCEEDINGS
`
`on the parties in said action by depositing a true copy thereof with the United States Postal
`
`Service as first class mail, postage prepaid, at San Francisco, California, enclosed in a sealed
`
`envelope addressed as follows:
`
`Gregory P. Goonan, Esq.
`The Affinity Law Group APC
`600 West Broadway; Suite 400
`San Diego, CA 92101
`Attorneyfor Applicant
`
`.,gZ.
`Eddie Shine
`
`60774160 V1
`
`MOTION FOR PARTIAL SUMMARY JUDGMENT
`Opposition No. 91/157,498
`
`-9-
`
`

`
`Attorney Docket No. 21730-1
`
`CERTIFICATE OF MAILING
`
`I hereby certify that this correspondence is being deposited with
`the United States Postal Service as First Class Mail in an envelope
`addressed to: Commissioner for Trademarks, P.O. Box 1451,
`Alexandria, VA 22313-1451 on May 19, 2006.
`
`TOWNSEND and TOWNSEND and CREW LLP
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Application Serial No. 78/185,037
`Mark:
`PURE JUICE
`
`Applicant:
`Published:
`
`Sandalz, Inc.
`June 24, 2003
`
`GREGORY JOHNSON:
`
`Opp°5e”
`
`V.
`
`
`
`SANDALZ, INC.,
`
`Applicant.
`
`Opposition No. 91/157,498
`
`DECLARATION OF ELIZABETH R.
`GOSSE IN SUPPORT OF OPPOSER'S
`
`MOTION FOR PARTIAL SUMMARY
`
`JUDGMENT AND TO SUSPEND
`PROCEEDINGS
`
`Commissioner for Trademarks
`
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Madam:
`
`1, Elizabeth R. Gosse, being warned that willful false statements and the like are
`
`punishable by fine or imprisonment, or both, under 18 U.S.C. § 1001, declare that all statements
`
`made of my own knowledge are true; and all statements made on information and belief are
`
`believed to be true, and that:
`
`l.
`
`I am an associate at Townsend and Townsend and Crew LLP and attorney for
`
`Opposer Gregory Johnson.
`DECLARATION OF ELIZABETH R. GOSSE
`
`Opposition No. 91/157,498
`
`

`
`2.
`
`Attached hereto as Exhibit A is a true and correct copy of Applicant’s Objections
`
`and Responses to Opposer’s First Set of Interrogatories (Nos. 1-29).
`
`3.
`
`Attached hereto as Exhibit B is a true and correct copy of Applicant’s Objections
`
`and Responses to Opposer’s First Set of Document Requests to Applicant (Nos. 1-39).
`
`4.
`
`Attached hereto as Exhibit C is a true and correct copy of Opposer’s Responses to
`
`Applicant's First Demand for the Identification and Production of Documents and Things (Nos.
`
`1- 54).
`
`5.
`
`Attached hereto as Exhibit D is a true and correct copy of a document produced
`
`by Applicant in discovery, Bates Nos. SAND 0079-0103, entitled “Purchase of Assets and
`
`Assumption of Liabilities Agreement” and dated October 31, 1996 by and between Gellis, Inc.,
`
`Pure Juice, Inc., Gregory Johnson, and the shareholders of Pure Juice, Inc.
`
`6.
`
`Attached hereto as Exhibit E is a true and correct copy of a document produced
`
`by Applicant in discovery, Bates No. SAND 0297, which is a copy of a letter agreement between
`
`Randall J. Lanharn of CARV.com, Inc. and Joe Ellis dated January 18, 1998.
`
`7.
`
`Attached hereto as Exhibit F is a true and correct copy of a document produced by
`
`Opposer in discovery, Bates Nos. GJ 000018-000034, which is a faxed copy of a letter and
`
`attachments dated August 3, 1998 from Randall J. Lanham, Chairman of CARV Industries,
`1nc.’s Board of Directors to the Board ofDirectors of Gellis, Inc. regarding CARV’s acquisition
`
`of Gellis, Inc. This document has been marked CONFIDENTIAL is hereby filed under seal
`pursuant to paragraph 12 ofthe Stipulated Protective Order entered in this case.
`
`8.
`
`Attached hereto as Exhibit G is a true and correct copy of a document produced
`
`by Opposer in discovery, Bates Nos. GJ 000035-000046, entitled “ACQUISITION
`
`AGREEMENT: Acquisition of Gellis Incorporated by CARV Industries, Inc.” dated August 6,
`
`DECLARATION OF ELIZABETH R. GOSSE
`Opposition No. 91/157,498
`
`-2-
`
`
`
`

`
`1998. This document has been marked CONFIDENTLAL is hereby filed under seal pursuant to
`
`paragraph 12 of the Stipulated Protective Order entered in this case.
`
`9.
`
`Attached hereto as Exhibit H is a true and correct copy of a document produced
`
`by Opposer in discovery, Bates No. GJ 000065, which is a copy of a press release issued by
`
`CARV.com on December 18, 1998 titled “CARV.com Fires Pure Juice President.”
`
`10.
`
`Attached hereto as Exhibit I is a true and correct copy of a document produced by
`
`Applicant in discovery, Bates No. SAND 0276, entitled “MINUTES OF SPECIAL MEETING
`
`OF THE BOARD OF DIRECTORS OF SANDALZ, INC.” and details the minutes of the
`
`Board’s January 22, 1999 meeting.
`
`11.
`
`Attached hereto as Exhibit J is a true and correct copy of a document produced by
`
`Applicant in discovery, Bates Nos. SAND 0002-003, which is a letter dated November 5, 2002
`
`from Opposer to Applicant.
`
`12.
`
`I declare under penalty of perjury that the foregoing is true and correct.
`
`EXECUTED this 19th day of May, 2006, at San Francisco,‘ California.
`
`
`
`Elizabeth R. Gosse
`
`DECLARATION OF ELIZABETH R. GOSSE
`
`Opposition No. 91/157,498
`
`

`
`.
`
`.
`
`'
`
`PROOF OF SERVICE
`
`On May 19, 2006, I served the foregoing:
`
`DECLARATION OF ELIZABETH R. GOSSE IN SUPPORT OF
`
`OPPOSER'S MOTION FOR PARTIAL SUMMARY JUDGMENT
`
`on the parties in said action by depositing a true copy thereof with the United States Postal
`
`Service as first class mail, postage prepaid, at San Francisco, California, enclosed in a sealed ’
`
`envelope addressed as follows:
`
`Gregory P. Goonan, Esq.
`The Affinity Law Group APC
`600 West Broadway; Suite 400
`San Diego, CA 92101
`Attorneyfor Applicant
`
`
`
`
`
`Eddie Shine
`
`60776509 v1
`
`DECLARATION or ELIZABETH R. GOSSE
`Opposition No. 91/157,498
`
`-4-
`
`
`
`

`
`
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 157,498
`Serial No. 78/185037
`
`Mark: Pure Juice
`
`Gregory Johnson,
`
`0PP0S3F,
`
`v.
`
`Sandalz, Inc.,
`
`Applicant.
`
`
`
`APPLICANT’S OBJECTIONS AND RESPONSES TO OPPOSER’S
`FIRST SET OF INTERROGATORIES
`
`Pursuant to Rules 26 and 33 of the Federal Rules of Civil Procedure and Trademark Rules
`
`2.116 and 2.120, applicant Sandalz, Inc. (“Applicant”) hereby objects and responds as follows to
`
`the first set of interrogatories (“Interrogatories”) propounded by opposer Gregory Johnson
`
`(“Opposer”).
`
`GENERAL OBJECTIONS AND RESPONSES
`
`These General Objections apply to each of Applicant’s responses to the Interrogatories
`
`whether or not referred to in the specific responses, if any, provided below.
`
`1. Applicant objects to the Interrogatories to the extent they seek confidential, trade secret
`or proprietary information of Applicant. Applicant will not intentionally disclose any such
`
`protected information in response to the Interrogatories unless otherwise indicated. Any disclosure
`
`of such protected information that may be made by Applicant (unless otherwise stated) would be
`
`inadvertent and accidental, and consequently, is not intended to be, and should not be construed as,
`
`a waiver (in whole or in part) of any applicable privilege or protection.
`
`2. Applicant objects to the Interrogatories to the extent they seek the disclosure of
`
`information protected from discovery by the rights of privacy of Applicant, its employees,_agents
`
`
`
`ORIGINAL
`
`

`
`and the like, by whatever source.
`
`3. Applicant objects to the Interrogatories on the grounds they are vague, ambiguous,
`
`and/or uncertain.
`
`4. Applicant objects to the Interrogatories on the grounds they seek the identification and
`
`production of documents that are not reasonably or readily available to Applicant, that already are
`
`in Opposer’s possession, that are more readily available to Opposer from another source, or for
`
`which the burden of obtaining such documents is not substantially greater for Opposer than for
`
`Applicant.
`
`5. Nothing in these General Objections or the Specific Objections and Responses set forth
`
`below shall prejudice Applicant in relation to further discovery, research, analysis, or presentation
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`of evidence at trial or in other proceedings in this matter.
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`6. No incidental or implied admissions are intended by these General Objections or the’
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`Specific Responses and Objections set forth below. The fact that Applicant has objected to and/or
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`responded to any particular interrogatory shall not be taken as an admission that Applicant accepts
`or admits the existence of any purported "facts" set forth or assumed by such interrogatory.
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`7. Any responses that will be provided to the Interrogatories will be without waiver of, and
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`with express reservation of: (a) all objections as to the competency, relevancy, materiality and
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`admissibility of the responses, if any, as evidence for any purpose in any further proceedings in this
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`case, including the trial of this case, or in any other action; (b) all privileges, including the attomey-
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`client privilege and the attorney work product doctrine; (c) the right to object to the use of such
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`responses on any ground in any further proceedings in this case, including the trial of this case, or
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`in any other action; (d) the right to object on any ground at any time to a demand or request for
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`further responses to the Interrogatories, or any other discovery request; and (e) the right to move for
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`a protective order to protect the confidentiality of any information provided.
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`8. Applicant’s discovery is ongoing and at an early stage. Relevant documents have not yet
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`been produced, and the depositions of persons who may have knowledge relevant to the issues in
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`this case have not yet been taken. Accordingly, the responses and objections herein reflect only the
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`present state of the investigation and discovery by Applicant and its counsel. Applicant expressly
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`reserves the right to rely at any time, including the trial in this matter, on subsequently discovered
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`information or documents or information omitted from these responses as a result of mistake, error,
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`oversight or inadvertence.
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`9. Nothing in any responses Applicant may provide to the Interrogatories shall be construed
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`as, or considered to be, final or exhaustive, nor shall these responses and objections prejudice
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`Applicant in relation to further discovery, research, analysis or presentation of evidence at trial or
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`in other proceedings in this matter. Applicant further expressly reserves the right to introduce at
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`trial and/or in connection with other proceedings any and all evidence which relates to matters
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`covered by the Interrogatories.
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`Subject to and without waiving the foregoing General Objections and Responses, Applicant
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`specifically objects and responds to the Interrogatories as follows:
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`Interrogatog No. 1:
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`SPECIFIC OBJECTIONS AND RESPONSES
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`Identify and describe in detail each product or service in connection with which you or any
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`predecessor or licensee has/have used APPLICANT’S Mark in the United States.
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`Objections and Response to Interrogatog No. 1:
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`Subject to and without waiving the foregoing General Objections, Applicant responds to
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`this interrogatory as follows: footwear; clothing.
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`Interrogatory No. 2:
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`For each product or service identified in response to Interrogatory No. 1:
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`a)
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`state the date of first use of APPLICANT’S Mark in connection therewith and
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`describe how APPLICANT’S Mark is used;
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`b)
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`state the geographic area in which the products or services have bee marketed,
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`offered and/or sold;
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`c)
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`state the total armual dollar volume if sales in the United States for each year from
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`the date APPLICANT’S Mark was first used to the present date;
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`d)
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`state the total annual number of sales in the United States for each year from the
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`date APPLICANT’S Mark was first used to the present date;
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`e)
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`state the annual dollar amount spent in connection with advertising and promotion
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`in the United States by year, for each year from the date APPLICANT’S Mark was first used to
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`the present date.
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`Objections and Resp’onse to Interrogatogy No. 2:
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`Objection: vague; ambiguous; uncertain; overbroad; unduly burdensome; oppressive; seeks
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`information not relevant to the subject matter of this action or reasonably calculated to lead to the
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`discovery of admissible evidence; seeks confidential and proprietary information ofApplicant
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`protected from discovery by Applicant’s rights of privacy.
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`Subject to and without waiving the foregoing General Objections or specific objections,
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`Applicant responds to this interrogatory as follows:
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`a) the Sandalz, Inc. corporate entity was formed in November 1998 and has been using the
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`Mark on a continuous basis with footwear and clothing since such time. Applicant’s rights in and
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`to the Mark derive from prior use which dates back to approximately 1991.
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`b) United States and Caribbean
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`c)
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`this subpart seeks confidential and proprietary information of Applicant protected
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`from discovery by Applicant’s rights of privacy. Applicant will provide such information upon
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`the entry of an appropriate protective order.
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`C
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`0
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`d) this subpart seeks confidential and proprietary information of Applicant protected from
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`discovery by Applicant’s rights of privacy. Applicant will provide such information upon the
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`entry of an appropriate protective order.
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`e) this subpart seeks confidential and proprietary information of Applicant protected from
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`discovery by Applicant’s rights of privacy. Applicant will provide such information upon the
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`entry of an appropriate protective order.
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`Interrogatogg No. 3:
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`For each product or service identified in response to Interrogatory No. 1, state whether the
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`use of APPLICANT’S Mark has been continuous from the date of first use to the present.
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`Objections and Response to Interrogatog No. 3:
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`Objection: vague; ambiguous; uncertain.
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`Subject to and without waiving the foregoing General Objections or specific objections,
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`Applicant responds to this interrogatory as follows: Yes.
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`Interrogatog No. 4:
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`Identify each promotion (e.g. press release, public disclosure, advertisement, sales
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`promotion, etc.) used to advertise or promote each product or service identified in response to
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`Interrogatory No. 1.
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`Objections and Response to Interrogatory No. 4:
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`Objection: vague; ambiguous; uncertain; overbroad; unduly burdensome; oppressive; seeks
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`information not relevant to the subject matter of this action or reasonably calculated to lead to the
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`discovery of admissible evidence.
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`Interrogatog No. 5:
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`For each promotion identified in response to Interrogatory No. 4, describe:
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`a)
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`the medium used (e.g., newspaper, periodical, trade journal, radio station, television
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`station, advertising circular, advertising sign, poster, etc.);
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`b)
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`c)
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`the dates of use of the promotion; and
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`the amount of money spent on the promotion.
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`Objections and Response to Interrogatogg No. 5:
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`Objection: vague; ambiguous; uncertain; overbroad; unduly burdensome; oppressive; seeks
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`information not relevant to the subject matter of this action or reasonably calculated to lead to the
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`discovery of admissible evidence.
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`Interrogatogy No. 6:
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`Identify each publication, advertisement, brochure, manual, newsletter (via Internet or
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`otherwise), and any other documents which contain or bear APPLICANT’S Mark.
`Objections and Response to Interrogatopy No. 6:
`I
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`Objection: vague; ambiguous; uncertain; overbroad; unduly burdensome; oppressive; seeks
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`information not relevant to the subject matter of this action or reasonably calculated to lead to the
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`discovery of admissible evidence.
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`Interrogatog No. 7:
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`Identify all classes of purchasers (e.g. retailers, general public, wholesalers) of each good
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`or service identified in response to Interrogatory No. 1.
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`Objections and Response to Interrogatogy No. 7:
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`Objection: vague; ambiguous; uncertain.
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`Subject to and without waiving the foregoing General Objections or specific objections,
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`Applicant responds to this interrogatory as follows:
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`those persons interested in active lifestyle
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`footwear and clothing.
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`Interrogatory No. 8:
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`Identify the persons having knowledge of the first use of APPLICANT’S Mark or any
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`variation thereof.
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`Response to Interrogatogg No. 8:
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`Blake Johnson; Nancy Johnson; Joe Ellis.
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`Interrogatory No. 9:
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`Identify each person (or entity) known to you, other than APPLICANT and OPPOSER,
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`who has used “PURE JUICE” (or any variation thereof) as a trademark or service mark, and for
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`each person (or entity) identified, identify all documents and things known to you referring or
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`relating to each such use.
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`A
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`Objections and Response to Interrogatog No. 9:
`Objection: vague; ambiguous; uncertain; overbroad; unduly burdensome; oppressive; seeks
`information not relevant to the subject matter ofthis action or reasonably calculated to lead to the
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`discovery of admissible evidence.
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`Subject to and without waiving the foregoing General Objections or specific objections,
`Applicant responds to this interrogatory as follows:
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`Pure Juice, Inc.
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`Carve Industries, Inc.
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`/
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`V Gellis, Inc.
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`I
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`‘J
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`Thomas P. Sims
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`Interrogatog No. 10:
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`Identify all agreements (e.g. license, permission, consent, manufacturing, marketing,
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`packaging, labeling, art work and distribution agreements), whether written or unwritten, entered
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`into by you and any other persons or entities referring or relating in any way to the term “P