0RlG1NAL
`
`Rebecca Soaar
`
`1
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`2 Opposition No. 91161603
`
`,—,l_.Q_————c~—*t—————Q—$————
`
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`REBECCA SPAAR
`DEPOSITION OF:
`EXAMINATION DATE:
`January 20,
`
`ALLERGAN,
`
`INC.,
`
`Opposer,
`
`v.
`
`BIOCENTRIC LABORATORIES,
`
`INC.,
`
`Applicant.
`
`the deposition of
`PURSUANT TO NOTICE,
`REBECCA SPAAR was taken at 10:00 a.m. on January
`20, 2006, at Sheridan Ross, P.C., 1560 Broadway,
`Suite 1200, Denver, Colorado, before Lisa
`Persichitte Reed, Registered Professional
`Reporter and Notary Public in and for the State
`of Colorado.
`
`
`
`Lisa Persichitte Reed
`Registered Professional Reporter
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`
`
`Rebecca Soaar
`
`1
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`2 Opposition No. 91161603
`
`,—,l_.Q_————c~—*t—————Q—$————
`
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`REBECCA SPAAR
`DEPOSITION OF:
`EXAMINATION DATE:
`January 20,
`
`ALLERGAN,
`
`INC.,
`
`Opposer,
`
`v.
`
`BIOCENTRIC LABORATORIES,
`
`INC.,
`
`Applicant.
`
`the deposition of
`PURSUANT TO NOTICE,
`REBECCA SPAAR was taken at 10:00 a.m. on January
`20, 2006, at Sheridan Ross, P.C., 1560 Broadway,
`Suite 1200, Denver, Colorado, before Lisa
`Persichitte Reed, Registered Professional
`Reporter and Notary Public in and for the State
`of Colorado.
`
`
`
`Lisa Persichitte Reed
`Registered Professional Reporter
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`
`
`E ATTORNEYS SERVICE CENTER, INC.
`
`“Service is our middle name” ‘
`
`Thursday, March 02, 2006
`
`Kenneth L. Wilton, Esq.
`Seyfarth Shaw LLP
`2029 Century Park East, Suite 3300
`Los Angeles, CA 9006-3063
`
`Re: Allergan, INC. v. Biocentric Laboratories, INC.
`Deposition of: Rebecca Spaar
`
`Dear Mr. Wilton:
`
`The above-mentioned original deposition is being forwarded to you, as indicated below.
`
`_ Unsigned; signed signature page and amendments, if any, to be submitted
`at trial.
`
`|><
`
`Unsigned; pursuant to the Rules of Civil Procedure. Said deponent and/or
`counsel were to arrange for review and signature; there has been no
`response from either party and said deposition remains unsigned.
`
`Signed by the deponent with no amendments.
`
`__
`
`Signed by the deponent with amendments, copies of which are enclosed.
`
`Please call if we can be of any further assistance. Thank you.
`
`Sincerely,
`
`ane i3uswel1
`
`Enclosures: One Sealed Original Transcript (w\exhibit loose)
`
`THE VIDEOCONFERENCE CENTER
`THE DEPO CENTER
`
`475 SEVENTEENTH STREET, SUITE 450
`'5‘ (303) 295-3376
`-
`FAX: (303) 295-1441
`- DENVER, COLORADO 80202
`-
`
`
`
`m ATTORNEYS SERVICE CENTER, INC.
`
`
`
`“Service is our middle name”
`
`Thursday, January 26, 2006.
`
`Kenneth L. Wilton, Esq.
`Seyfarth Shaw LLP
`2029 Century Park East, Suite 3300
`Los Angeles, CA 9006-3063
`
`Re: Allergan, INC. v. Biocentric Laboratories, INC.
`Deposition of: Rebecca Spaar
`
`Dear Mr. Wilton:
`
`Enclosed are your copy, MiniTranscript and ASCII disk of the deposition of Rebecca
`Spaar per your request. An invoice for the services of the court reporter will be
`forwarded under separate cover.
`
`A copy of the transcript and some amendment sheets are being forwarded to the witness
`for review and signature.
`
`The original deposition is being held in this office until thirty days have expired, or the
`witness has reviewed and signed it.
`It will be forwarded to you at that time along with
`any amendments. If you would like to have the original forwarded sooner, please contact
`this office.
`
`Please call if we can be of any further assistance.
`
`Sincerely,
`
`.~
`
`I
`
`i
`
`..
`
`.
`
`Chantell Rodriguez
`
`
`
`THE DEPO CENTER THE VIDEOCONFERENCE CENTER
`
`475 SEVENTEENTH STREET, SUITE 450
`
`- DENVER, COLORADO 80202
`
`-
`
`'5' (303) 295-3376
`
`-
`
`FAX: (303)295-1441
`
`
`
`m ATTORNEYS SERVICE CENTER, INC.
`
`“Service is our middle name”
`
`Thursday, January 26, 2006
`
`Rebecca Spaar
`32260 E. 167th Drive
`
`Hudson, CO 80642
`
`Re: Allergan, INC. v. Biocentric Laboratories
`
`Dear Ms. Spaar:
`
`A copy of your deposition taken in the above-captioned case is enclosed for your review
`and signature.
`
`If you wish to make any changes, please make them in ink on the amendment sheets
`provided. You will then need to take the enclosed affidavit and your amendments, if
`any, to a notary public, sign the affidavit and each amendment sheet in the presence of
`the notary, and have each signature notarized.
`
`Please return the signed and notarized affidavit and amendment sheets to this office no
`later than thirty days from the date of this letter.
`(Please do not return the copy of the
`transcript;
`it
`is yours to keep). The affidavit and amendment sheets will then be
`forwarded along with the original transcript to the noticing attorney.
`
`If we do not hear from you by that date, we will forward your deposition unsigned to the
`noticing attorney.
`If you have any questions regarding this matter, please contact your
`attorney.
`‘
`
`Sincerely,
`
`Chantell Rodriguez
`
`fie/ufwéf
`
`THE VIDEOCONFERENCE CENTER
`THE DEPO CENTER
`
`475 SEVENTEENTH STREET, ‘SUITE 450'
`'5‘ (303)295-3376
`-
`FAX: (303) 295-1441
`- DENVER, COLORADO 80202
`-
`
`
`
`Rebecca Soaar
`
`A P P E A R A N C E S
`
`2
`
`FOR
`
`THE OPPOSER:
`
`KENNETH L. WILTON, ESQ.
`
`Seyfarth Shaw LLP
`2029 Century Park East, Suite 3300
`Los Angeles, California 90067-3063
`(310) 201-5271
`
`Also
`
`Present: Michael Lehman
`
`I N D E X
`
`EXAM
`
`INATION BY:
`
`PAGE
`
`Mr.
`
`Wilton .
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`.
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`4
`
`INDEX OF EXHIBITS
`
`DEPO
`EXHI
`
`SITION
`BIT NO.
`
`DESCRIPTION
`
`PAGE FIRST
`APPEARS
`
`16
`
`17
`
`18
`
`"First Amended Notice of Testimony ...
`Deposition of Biocentric
`Laboratories,
`Inc."
`
`6
`
`Application for registration of
`trademark or service mark
`
`.
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`.
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`. ..
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`17
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`18
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`10
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`11
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`12
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`13
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`14
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`15
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`16
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
`
`Interrogatory responses of
`Rebecca Spaar
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`Requests for admissions .
`
`Requests for production .
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`.
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`Page from BioEntopic Web site .
`
`Page from BioEntopic Web site .
`
`Page from BioEntopic Web site .
`
`Page from BioEntopic Web site .
`
`Page from BioEntopic Web site .
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`W
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`19
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`19
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`23
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`25
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`28
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`28
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`28
`
`Attorneys’ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`
`
`Rebecca Soaar
`
`Page from BioEntopic Web site .
`
`Page from BioEntopic Web site .
`
`Copy of photograph of product
`
`.
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`Becarre SeaTox White Tea Evening .....
`Cremem Triple Complex flier
`
`Becarre SeaTox Evening Creme .
`Triple Complex flier
`
`.
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`.
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`.
`
`.
`
`.
`
`. ..
`
`Copy of label for SeaTox Evening .....
`Creme Triple Complex
`
`Copy of label for SeaTox White .
`Tea Evening Creme
`
`.
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`. ..
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`1
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`10
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`Fives pages from .
`plasticsurgery.org Web site
`‘
`Advertisement
`from .
`.
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`.
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`gmcbetterhealth.com Web site
`
`.
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`. ..
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`l3
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`.
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`from .
`Advertisement
`health.megamart.us Web site
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`from .
`Advertisement
`store.agoodvitamin.com Web site
`
`.
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`.
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`.
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`.
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`. ..
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`from .
`Advertisement
`911healthshop.com
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`14
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`:
`Q5
`
`16
`
`_‘;,_ CI)
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`11
`
`Q2
`
`( f
`
`<
`
`
`
`Rebecca Soaar
`
`P R O C E E D I N G S
`
`REBECCA SPAAR
`
`The deponent herein, being first duly
`
`sworn to testify to the truth in the above cause,
`
`was examined and testified on her oath as
`
`follows:
`
`BY MR. WILTON:
`
`E X A M I N A T I O N
`
`Q
`
`Could you, please, state and
`
`spell your name for the record.
`
`A
`
`Rebecca Spaar, R—e-b—e-c-c—a,
`
`MR. WILTON: And, sir,
`
`if you
`
`could do the same.
`
`MR. LEHMAN: Michael Lehman,
`
`M—i—c—h—a—e—l, L—e-h—m-a—n.
`
`MR. WILTON:
`
`I'm glad you did
`
`THE DEPONENT:
`
`You think they are
`
`easy names .
`
`MR. WILTON: Not really.
`
`Q
`
`(BY MR. WILTON)
`
`As you know,
`
`I
`
`represent Allergan in this proceeding,
`
`in the
`
`opposition proceeding, where we're opposing the
`
`registration of the SeaTox mark.
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
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`Rebecca Soaar
`
`Have you ever been deposed before?
`
`
`
`No. A
`Let me go through a couple of the
` ground rules so that you have them in front of
`
`
`
`
`
`Q
`
`
`
`
`
`you and you are aware of them.
`
`Even though we're
`
`
`
`sitting here in a conference room and it's a
`
`rather informal setting, the oath that you took
`
`is the same oath that you would take in a court
`
`
`of law and has the same effect.
`
`
`Do you
`
`understand that?
`
` A
`
`Yeah.
`
`Q
`
`The court reporter sitting to my
`
`
`
`right and your left is going to be reporting and
`
`recording everything that we say in writing. And
`
`it will appear in a transcript that says,
`
`"question," "answer," "question," "answer," down
`
`
`
`In order to make her job easy and make
`the page.
` it clear at the end of the day,
`I will wait until
`
`you finish your answers before starting the next
`
`
`
`question. And if you could do the same,
`
`let me
`
`finish my question before answering, okay?
`
`
`
`A Mm—hmm.
`
`Q
`
`This is not
`
`intended to be any
`
`
` kind of marathon or anything.
`So if there is any
`
`
` reason you need to take a break,
`just tell me.
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`
`
`__3__g_—~———~—’————————u-——
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`Rebecca Soaar
`
`
`
`
`
`A That being said, how long do you
`
`
`
`
`
`anticipate this taking?
`
`Q
`
`About three hours or so, maybe
`
`
`
`shorter, depending on where it goes.
`
`
`
`A
`
`I have recently had some very
`
`
`
`invasive surgeries.
`
`And I have a lot of pain.
`
`
`I
`
`I have been
`
`
`
`on be drest until very recently,
`so I will do my
`
`
`best to, you know, get through everything because
`
`
`have problems getting up and down.
`
`
`
` I, of course, want this taken care of also. But
`
`please understand my situation.
`
`
`
`Q I do, and I will move as quickly
`
`as I can so that you can go back and be more
`
`
`comfortable than you are right now. Why don't we
`
`start --
`
`
` MR. WILTON: We'll mark
`
`Exhibit 16.
`
`(Deposition Exhibit 16 was marked.)
`
` Q
`
`(BY MR. WILTON)
`
`It is the first
`
`amended notice of deposition of Biocentric
`
`Laboratories.
`
`
`
`A
`
`This is hers or mine?
`
`
`
`Q That is yours to look at. And
`
`
`let me explain the exhibit process. What happens
`
`which I
`is I, obviously, have some papers here,
`
`
`
`
`
`Attorneys’ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
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`Rebecca Soaar
`
`
`
`will be marking as exhibits with a number:
`
`16,
`
`
`
`
`
`
`
`
`17, 18, et cetera.
`
`
`
`
`the transcript, you'll be able to see the exhibit
`
`transcript.
`
`So when you get a chance to review
`
`They will be attached to the
`
`attached when it is referenced in the text.
`
`
`
`So what I'll do is give a copy to the
`
`
`
`court reporter. She'll give that copy to you to
`
`
`
`look at, sort of go in this round—robin, kind of,
`
`circle.
`
`
`
`And one thing I didn't mention is at
`
`the end of this,
`
`she will transcribe this into a
` booklet. And you will have a chance to read what
`
`she transcribes and sign it under penalty of
`
` perjury as your testimony.
`You also have the
`
`chance to correct anything that may be wrong,
`
`something that you misstate, or something that
`the court reporter inadvertently transcribes
`
`incorrectly.
`
`
`
`A Okay. When does that happen?
`
`
`
`
`Probably —— you should get that
`
`Q
` in about
`three weeks.
`
`
`
`You'll have some time to review
`Q
`
` it.
`is
`The point that I want
`to make,
`though,
`that if you can give your best answer to my
`
`two weeks,
`
`A
`
`Okay.
`
`
`
`Attorneys’ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
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`
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`Rebecca Soaar
`
`questions during the course of the day,
`
`that
`
`would be better than if we have a bunch of
`
`handwritten answers.
`
`A
`
`Will
`
`I also get a copy of the
`
`deposition from Tom Albright?
`
`Q
`
`Yes, you will.
`
`The rules require
`
`that I serve a copy on you within 30 days after
`
`the deposition.
`
`A
`
`Just making sure.
`
`Q
`Now,
`
`You will get a copy of that.
`turning back to Exhibit 16, did
`
`you receive a copy of this notice?
`
`A
`
`Q
`
`Mm—hmm. Yes.
`
`And you're appearing today in
`
`response to that notice, correct?
`
`A
`
`Q
`
`Yes.
`
`And you're testifying on behalf
`
`of the applicant
`
`in this proceeding, which is
`
`Biocentric Laboratories, correct?
`
`A
`
`Q
`
`Biocentric?
`
`A
`
`Q
`
`Yes.
`
`What is your position at
`
`I
`
`am the CEO.
`
`How many other employees are
`
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`there at Biocentric?
`
`Attorneys’ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`
`
`Rebecca Soaar
`
`A
`
`How is that relevant to what
`
`we're doing?
`
`Q
`
`I'm just asking questions to get
`
`some background on the company.
`
`A
`
`Q
`
`A
`
`Q
`
`We're a small company.
`
`How many?
`
`Less than ten employees.
`
`I ran a Dun & Bradstreet report
`
`on the company and it said that the company had
`
`two employees;
`
`is that correct?
`
`A
`
`At a recent
`
`time, it did.
`
`We
`
`have changes in the company,
`
`like everybody else.
`
`Have you ever had more than ten
`
`No.
`
`When did you found the company?
`
`Oh, good heavens.
`
`2000,
`
`I
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`think.
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`And have you been the CEO during
`
`Q
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`A Q
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`A
`
`Q
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`employees?
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`the entire time the company has been in
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`existence?
`
`A
`
`Q
`
`Yes.
`
`Prior to founding Biocentric,
`
`what kind of job did you have?
`
`A
`
`Strange questions.
`
`I was in the
`
`real estate industry.
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`Rebecca Soaar
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`How many offices does Biocentric
`
`A
`
`Q
`
`One.
`
`Does Biocentric have any
`
`manufacturing facilities?
`
`A
`
`Q
`
`Q
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`Yes.
`
`Where are those located?
`
`At
`
`the one location.
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`So all of your products are
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`manufactured at that location?
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`A
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`Q
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`Yes.
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`Is that location certified under
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`any FDA guidelines or something like that?
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`A
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`None of our products fall under
`
`the FDA umbrella of what
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`they would control.
`
`So
`
`no.
`
`Q
`
`Are there any regulations that
`
`govern the manufacture of cosmetics?
`
`20l(i).
`
`A
`
`Q
`
`It's the FD&C Act, Section
`
`You are reading from your
`
`discovery responses, your interrogatory
`
`responses?
`
`A
`
`Q
`
`Yeah.
`
`What does that regulation say?
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`
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`A
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`It defines the term "cosmetic" as
`
`
`
`And you're referring to the
`
`
`things applied to the skin topically.
`
`Q
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`regulation put out by the Food and Drug
`
`Administration?
`
`
`
`Yeah.
`
`Q
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`A
`
`part of the Food and Drug Administration.
`
`I
`
`don't know how they would say it regulates it.
`
`Q
`
`When you started manufacturing
`
` A
`And how does that regulate the
` manufacturing of cosmetics?
`I can't explain it since I'm not
`
`
` cosmetics, did you do any research to find out
`
`
`I
`
`
`or whether they are regulated?
`
` A Yes.
`
`Q What did you find out?
`A
`To the best of my knowledge,
`
`made sure that I stayed within the legal
`
`I understood.
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`Q
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`And what legal guidelines were
`
`
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`as opposed to injected or taken orally or
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`something that would have to be prescribed by a
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`A
`
`That creams be applied topically
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`guidelines of what
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`what would regulate the manufacture of cosmetics
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`physician.
`
`Q
`
`So in terms of the products that
`
`
`
`
`you have -- that you sell, you've attempted to
`
`make sure that all of them are just applied
`
`
`
` A
`
`is that right?
`
`
`topically;
`Yes.
`Did you do any research into what
`
`Q
`
`
`
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`standards might apply in terms of the actual
`
`manufacture of those products?
`
`A
`
`I don't quite understand your
`
`question.
`
`Let's back up --
`
`It's such a broad question.
`
`
`
`It's a broad question.
`Q
`
`Let's
`
`back up a second.
`
`You said you have
`
`manufacturing facilities at your offices,
`
`
`
`correct?
`
` A Yes.
`
`Q
`
`At
`
`those facilities, you actually
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`mix together the ingredients for your cosmetic
`
`products, right?
`
`Correct.
`
`A
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`Q
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`A
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`Q
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`
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`
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`And you package them, correct?
`
`Correct.
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`Are there any guidelines that
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`Rebecca Soaar
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`13
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`govern the cleanliness of your facility?
`
`specific.
`
`A
`
`Q
`
`I do not recall anything
`
`Does anybody inspect your
`
`facility on a regular basis?
`
`No. A
`
`
`
`Q
`
`Has anybody ever inspected your
`
`facility?
`
`
`
`
`>OWOWOW
`
`Yes.
`
`Who?
`
`The FDA.
`
`When was that?
`
`I don't recall.
`
`Was it in the last year?
`
`No.
`
` Q
`Was it in the year 2000 when you
`
`
`
`
`founded the company?
`
`
`
`NO.
` A
`It was between that time and
`
`Q
`
`And the FDA sent out an inspector
`
`
`
`to look at your facility?
`
`
`
`
`
`A
`
`Q
`
`A
`
`Q
`
`Yes.
`
`Did you ask the FDA to do that?
`
`No.
`
`Why did the FDA do that?
`
`
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`A
`
`I'm trying to remember the
`
`specific incident.
`
`I
`
`take that back. We did
`
`initiate the contact with the FDA at the request
`
`of a client.
`
`Q
`
`So one of your clients asked you
`
`to have your facility inspected?
`
`A
`
`It was part of my initial
`
`dealings with who I knew at the time would be a
`
`significant client and subsequently is.
`
`Q
`
`Did the FDA issue a report
`
`following its inspection?
`
`A
`
`Q
`
`No.
`
`Did the FDA tell you anything
`
`following the inspection?
`
`A
`
`It was deemed that nothing we did
`
`fell under their scope.
`
`Q
`
`Are there any standards that
`
`you're aware of regarding the purity of the
`
`products that you sell?
`
`A
`
`I'm not aware of any.
`
`Now,
`
`that
`
`does not indicate that I don't follow any.
`
`Q
`
`A
`
`What do you follow?
`
`My own personal morality.
`
`I would not put out a product that would be
`
`inferior in any way,
`
`to the best of my knowledge.
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`Rebecca Soaar
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`What was the first product that
`
`you sold?
`
`A
`
`Q
`
`A
`
`Q
`
`It was a massage cream.
`
`Do you still sell that product?
`
`Yes.
`
`And under what mark do you sell
`
`that product, or do you sell it under any kind of
`
`mark?
`
`What mark?
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`What do you call that product?
`
`BioEntopic massage cream.
`
`What is BioEntopic?
`
`Just another product line,
`
`I
`
`guess you could call it.
`
`Q
`
`Did you come up with the name
`
`"BioEntopic"?
`
`A
`
`Q
`
`Yes,
`
`I did.
`
`Have you ever heard of a
`
`gentleman named John Mcvay?
`
`A
`
`Q
`
`A
`
`Yes.
`
`Who is John McVay?
`
`John McVay is a gentleman that I
`
`worked for at one time.
`
`Q
`
`A
`
`In the real estate business?
`
`No,
`
`just before I got
`
`into this
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`Attorneys’ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
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`80202
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`Rebecca Soaar
`
`16
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`industry.
`
`And what business is Mr. Mcvay
`
`
`
`
`A
`
`Mr. Mcvay is in cosmetics.
`Is he at all involved in your
`
`
`company?
`
` A NO.
`
`
`
`
`Does he also manufacture
`
`Q
`
`cosmetics?
`
`
`
`
`
`
`He used to.
`I don't know what he
`think I know what you're
`does anymore.
`I
`
`
`
`A
`
`
`
`referring to.
`
`Q
`
`I'm referring to his registrationk
`
`of the BioEntopic mark.
`
` A Yes.
`
`Q
`
`A
`
`Q
`
`You're aware of that?
`
`Yes.
`
`Do you know why Mr. McVay
`
`registered the BioEntopic mark?
`
`A
`
`He was angry that I no longer
`
`
`
`worked for him.
`
`Q
`
`
`Have you had that registration
`
`assigned to you?
`
`A
`Prior to Mr. McVay's registration
`
`
`
`
`of that name.
`He changed --
`
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`Q
`
`A
`
`I'm sorry.
`
`He changed the capitalization of
`
`a letter,
`
`I believe, and registered it under a
`
`different, quote/unquote, spelling,
`
`I
`
`think is
`
`what happened.
`
`MR. WILTON: Let's mark this as
`
`(Deposition Exhibit 17 was marked.)
`
`Q
`
`(BY MR. WILTON)
`
`I'm showing you
`
`a two-page document that is an application for
`
`registration of trademark or service mark from
`
`the Colorado Secretary of State. And on the
`
`second page is a copy of the mark.
`
`Do you see
`
`A
`
`Q
`
`A
`
`Q
`
`Mm—hmm.
`
`Is that a yes?
`
`Yes.
`
`I'm sorry.
`
`The other thing is she needs
`
`"yeses" and "noes."
`
`A
`
`Q
`
`I'm sorry about that.
`
`Isn't that the mark that you
`
`currently use?
`
`A
`
`Q
`
`Yes,
`
`that is.
`
`So Mr. Mcvay owns a registration
`
`of a mark that Biocentric uses?
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`80202
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`Rebecca Soaar
`
`18
`
`A
`
`Q
`
`Yes.
`
`Have you taken any steps to
`
`either cancel that registration or have it
`
`assigned to Biocentric?
`
`A
`
`I was not aware of this as it's
`
`actually taken off of one of my products,
`
`apparently.
`
`Q
`
`But he does not sell products
`
`under the BioEntopic mark as far as you know?
`
`A
`
`No.
`
`It really was not worth
`
`pursuing with Mr. McVay.
`
`Q
`
`A
`
`Why not?
`
`Mr. McVay has some personal and
`
`private issues. His motivations were and still
`
`are unclear, let's say.
`
`Q
`
`Okay. Why don't we mark —- we'll
`
`go through this fairly quickly —— Exhibit 18.
`
`(Deposition Exhibit 18 was marked.)
`
`Q
`
`(BY MR. WILTON)
`
`I would like you
`
`to take a look through Exhibit 18, and with the
`
`question in mind that I'm just asking you whether
`
`these are your interrogatory responses.
`
`A
`
`Everything appears to be correct,
`
`And these responses are true and
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`Rebecca Soaar
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`19
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`correct to the best of your knowledge?
`
`Yes.
`
`Did you draft these responses?
`
`Yes.
`
`Q
`
`Did anybody assist you in
`
`drafting these responses?
`
`
`
`
`
`
`Q
`
`little bit of detail later, but
`
`I want
`
`to move on
`
`Q
`
`(BY MR. WILTON)
`
`I'll ask you to
`
`No. A
`We'll get back to them in a
`
`to the next one, which is Exhibit 19.
`(Deposition Exhibit 19 was marked.)
`
`
`
`
`
`to confirm that these are,
`in fact, your
`
`do the same exercise.
`
`These are copies of your
`
`responses to requests for admissions.
`
`I just
`
`want
`
`
`
`
`
`responses?
`
`
`
`A Again, everything appears to be
`
`correct, yes.
`
`Q
`
`And they are true and correct to
`
`the best of your knowledge?
`
`
`
` A Yes.
`
`
`
`xhibit 20, which are requests -- responses to
`
`
`Q E
`
`
`(Deposition Exhibit 20 was marked.)
`
`(BY MR. WILTON)
`
`I'm showing you
`
`requests for production that were sent
`
`to my
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`
`
`office on November 2, 2005.
`
`
` question for you, if you can just look through
`
`
`I have the same
`
`them and confirm that they are,
`
`in fact, your
`
`responses to our discovery?
`
`
`
`
`
`Q
`
`Yes. A
`And they are true and correct to
`
` A Yes.
`
`
`the best of your knowledge?
`
`
`
`
`That is your signature that
`
` A Yes.
`
`appears on the last page?
`
`
`
`Q
`
`
`Other than the product that is at
`
`Q
`
`
`
`
`issue, you sell a number of other products, don't
`
`you?
`
`A Yes.
`
` Q Who formulates those products, or
`
`does it change from product
`
`to product?
`
`A
`
`I hesitate to answer because I
`
`feel that's a trade secret.
`
`Q
`
`Why is that a trade secret?
`
` A
`Because how and with whom I
`
`formulate is part of my competitive edge, shall
`
`Your competitive edge over whom?
`
`Other companies in the area that
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`475 Seventeenth Street, Denver, CO
`(303) 295-3376
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`Rebecca Soaar
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`21
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`I--~’:"iZZZ:jZi
`
`I sell product
`
`in.
`
`Q
`
`Do you consider Allergan to be
`
`one of those other companies?
`
`A
`
`Q
`
`No.
`
`So providing that information to
`
`Allergan would not harm your company?
`
`A
`
`I wonder. Are these proceedings
`
`public record?
`
`Is this something that --
`
`Q
`
`These proceedings are public
`
`record,
`
`that is correct. And let me stop for a
`
`second. During the course of the deposition so
`
`far, your brother,
`
`I believe --
`
`A
`
`Q
`
`Friend.
`
`Your friend has been pointing to
`
`a document and you've been reading portions of
`
`that document. What is that document you are
`
`looking at?
`
`A
`
`Q
`
`A
`
`Just a set of personal notes.
`
`Notes about
`
`the case, notes about
`
`Yeah. Notes about all the
`
`documents and everything that we've been going
`
`through.
`
`May I see that?
`
`Sure.
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`(303) 295-3376
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`80202
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`Rebecca Soaar
`
`22
`
`Who prepared these notes?
`
`I did.
`
`How did you go about preparing
`
`A
`
`Reviewed some information on the
`
`trial board's Web site and personal discussions
`
`with friends and family.
`
`Q
`
`Let's move back to the products
`
`for a second. And let me ask you —— see if I can
`
`ask a question that you don't think invades what
`
`you believe is a trade secret.
`
`Do you work with
`
`other people in formulating your products?
`
`A
`
`Q
`
`Yeah.
`
`Are those people employees of
`
`10
`
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`12
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`13
`
`14
`
`15
`
`Biocentric?
`
`A
`
`Q
`
`No.
`
`Do you know if those people work
`
`with anybody else in formulating cosmetic
`
`products?
`
`another?
`
`I
`
`am not aware of that.
`
`I don't
`
`You don't know one way or
`
`I don't know one way or the
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`(303) 295-3376
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`80202
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`
`Rebecca Soaar
`
`23
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` fijjfjjfgiéefvtffijjjjjj
`
`Q
`
`Do you have any written
`
`agreements with these people that you work with?
`
`A
`
`Q
`
`No.
`
`Are they under any obligation to
`
`keep the formulas for your products secret?
`
`A
`
`Q
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`No.
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`So they could sell the formula to
`
`a third party who could market it under a
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`different name;
`
`is that right?
`
`A
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`Q
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`Technically, yes.
`
`Do you know whether or not
`
`they
`
`I'm not aware of that ever being
`
`MR. WILTON: Let me mark this as
`
`1O
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`11
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`15
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`Exhibit 21.
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`17
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`18
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`19
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`20
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`21
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`22
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`23
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`24
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`25
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`(Deposition Exhibit 21 was marked.)
`
`Q
`
`(BY MR. WILTON) Exhibit 21 is,
`
`I
`
`believe,
`
`a page from your Web site.
`
`A
`
`Q
`
`It is.
`
`And when I say that,
`
`I'm
`
`referring to the Web site at www.BioEntopic.com.
`
`That is your site, correct?
`
`A
`
`Q
`
`Yes.
`
`Do you maintain that site?
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`
`
`Rebecca Soaar
`
`24
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`A
`
`I don't know how to do Internet
`
`stuff personally, but --
`
`Q
`
`That is probably a bad question.
`
`None of us here do.
`
`A
`
`Q
`
`That's a whole different world.
`
`Do you hire a company that
`
`maintains it for your company?
`
`A
`
`I have a friend who does, who is
`
`a professional.
`
`Q
`
`And the content of that site, you
`
`have control over, correct?
`
`A
`
`Q
`
`Yes.
`
`And on the page we were looking
`
`at, Exhibit 21, it lists two of the products that
`
`you sell, correct?
`
`A
`
`Q
`
`Correct.
`
`And those products, at least
`
`looking at the photo here,
`
`in large letters, you
`
`have "BioEntopic";
`
`is that correct?
`
`A
`
`Q
`
`Correct.
`
`And that is an actual photo of
`
`the packaging for those products?
`
`A
`
`Q
`
`It is.
`
`And those products were packaged
`
`at your facility at Biocentric?
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
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`Rebecca Soaar
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`25
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`
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`11111111Xvi‘/31111111
`
`A
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`Q
`
`Biocentric?
`
`A
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`Q
`
`Yes.
`
`And the labels are put on it by
`
`Yes.
`
`And all the products that you
`
`sell are shipped from that facility at
`
`BioCentric?
`
`A
`
`Yes.
`
`MR. WILTON: Let me mark this as
`
`10
`
`Exhibit 22.
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`11
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`(Deposition Exhibit 22 was marked.)
`
`Q
`
`(BY MR. WILTON)
`
`This is another
`
`page,
`
`I believe this is from your Web site as
`
`well, correct?
`
`A
`
`Q
`
`Correct.
`
`This is a description of one of
`
`the products that was listed on the prior page we
`
`were looking at, correct?
`
`A
`
`Q
`
`Correct.
`
`Did you write the copy —- or let
`
`me rephrase that.
`
`Why do you have a description of your
`
`products on your Web site?
`
`A
`
`For two reasons.
`
`One is for
`
`general consumer information. And the other is
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`
`
`Rebecca Soaar
`
`26
`
`
`the health food stores that sell my
`
`
`
`
`product retail.
`
` Q
`
`Okay. Let's focus on the first
`
`It is general consumer information.
`
`
`A
`
`Hold on just a moment, please.
`
` I have to cough and hold my stomach at the same
`
`time.
`
`
`
`
` MR. WILTON: Off the record.
`
`(Discussion held off the record.)
`
`to support
`
`
`
`(BY MR. WILTON)
`
`just --
`
`
` Q
`
`
`Like you said,
` if you ever need to take a break,
`
`
`A
`
`
`
`One is coming soon, please.
`
`Q
`
`Not a problem.
`
`You said that
`
`One is
`your ad copy is there for two reasons.
`
`for general consumer information, and also to
`
`
`
`
`support
`
`the health food -— or the health food
`
`stores --
`
`Health food stores.
`
`-- that sell your product?
`
`Yes.
`
`Q
`
`With regard to the general
`
`
`is the intent of the copy
`
`consumer information,
`
`
`
`your product?
`
`A
`
`You always want
`
`the consumer to
`
`to inform the consumer so that they will purchase
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`10
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`ll
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`25
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`{?ZTfZZ11——¥-1*”
`
`
`
`Rebecca Soaar
`
`27
`
`buy your product.
`
`It would be impossible to
`
`answer "no" to that question.
`
`Am I a marketing
`
`genius? No.
`
`It's an explanation of what
`
`I have
`
`formulated this product to accomplish.
`
`Q
`
`Do you write the —- back up a
`
`With regard to each of the products on
`
`your Web site, you have a similar type of
`
`description, correct?
`
`A
`
`Q
`
`Correct.
`
`Obviously, it's tailored to the
`
`product, but you have a description that
`
`describes the product,
`
`right?
`
`Correct.
`
`Do you write all those?
`
`By and large, yes.
`
`What do you mean by "by and
`
`A
`
`Q A
`
`Q
`
`large"?
`
`A
`
`Of course,
`
`the gentleman who
`
`writes the copy can make the spelling
`
`corrections, grammar corrections,
`
`if there are
`
`any, and maybe a marketing hint here or there.
`
`Q
`
`So somebody else edits what you
`
`write;
`
`is that fair?
`
`A
`
`By virtue of the fact that
`
`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`10
`
`11
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`12
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`13
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`15
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`2O
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`21
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`22
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`23
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`25
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` ?1ZZfZuI!___:~—f’Z"ZjZZTZZ
`
`
`
`Rebecca Soaar
`
`28
`
`Zjjjjjjjjllézf-’j’Z1ZZjZ»:
`
`somebody has to input it.
`
`Since I can't directly
`
`transcribe —— I don't know how to write an
`
`Internet program, basically.
`
`Q
`
`So what you're saying is the
`
`friend who maintains your Web site, who puts this
`
`copy on the Web site, also makes minor changes to
`
`what you give him, correct?
`
`A
`
`Q
`
`With my approval.
`
`But
`
`in terms of the technical
`
`information that appears here,
`that's all
`stuff —— that's all information that you've
`
`written, correct?
`
`A
`
`Q
`
`yes.
`
`Let me go quickly through a
`
`couple other pages.
`
`I just want to confirm -— in
`
`fact, why don't we go off the record for a
`
`second.
`
`(Discussion held off the record.)
`
`(Deposition Exhibits 23 through 27 were
`
`marked.)
`
`MR. WILTON:
`
`Back on the record.
`
`Q
`
`(BY MR. WILTON) While we were
`
`off the record,
`
`the court reporter marked
`
`Exhibits 23, 24, 25, 26, and 27. Are these all
`
`copies of pages from your Web site that would
`
`Attorneys’ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`10
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`11
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`21
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`22
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`23
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`24
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`25
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`
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`Rebecca Soaar
`
`29
`
`
`
`21111311./§’ft‘T”1111111
`
`include products that you sell?
`
`A
`
`Yes.
`
`MR. WILTON: Why don't we take a
`
`break since I know you need one.
`
`(A recess was taken from 10:43 a.m.
`
`to
`
`10:46 a.m.)
`
`Q
`
`(BY MR. WILTON)
`
`You mentioned
`
`that your ad copy also was intended to support
`
`health food stores that sell your product?
`
`A
`
`Q
`
`Yes.
`
`May I assume from that,
`
`then,
`
`that you have a network of health food stores
`
`that are distributors of Biocentric products?
`
`A
`
`Network and distributors have
`
`different meaning in my industry.
`
`I
`
`am a
`
`manufacturer in my industry jargon and I sell
`
`wholesale to retail locations.
`
`So I have a
`
`number of clients who are health food stores.
`
`Q
`
`Are all of those on the Web, or
`
`are some of them on the Web and some of them --
`
`strike that.
`
`With regard to those health food
`
`stores, are some of them just Internet-based
`
`companies?
`
`A
`
`I believe some are.
`
`I don't know
`
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`Attorneys‘ Service Center
`475 Seventeenth Street, Denver, CO
`(303) 295-3376
`
`80202
`
`
`
`Rebecca Soaar
`
`30
`
`for sure,
`
`though.
`
`Q
`
`Does Biocentric sell directly to
`
`consumers?
`
`
`
`Yes, on a very limited basis.
`
`
`Does Biocentric have a storefront
`Q
`
` A No.
`
`that it sells products at?
`
`
`
`Q
`
`And you don't know whether the
`
`
`
`
`
`
`
`health food stores you mentioned have storefronts
`
`or don't have storefronts?
`
`A
`
`I assume that places representing
`
`themselves as a health food store, quote/unquote,
`
`
`
`have a physical retail location.
`Q
`Going back to the p
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