Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA157831
`ESTTA Tracking number:
`08/20/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91164080
`Plaintiff
`Omega SA
`JESS M. COLLEN
`COLLEN LAW ASSOCIATES
`THE HOLYOKE-MANHATTAN BUILDING , 80 SOUTH HIGHLAND AVE.
`OSSINING, NY 10562
`UNITED STATES
`Motion for Summary Judgment
`Brendan Reilly
`breilly@collenIP.com,docket@collenIP.com
`/s/Brendan J. Reilly
`08/20/2007
`91215 ex q_20070820165604.pdf ( 82 pages )(2758446 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA157831
`ESTTA Tracking number:
`08/20/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91164080
`Plaintiff
`Omega SA
`JESS M. COLLEN
`COLLEN LAW ASSOCIATES
`THE HOLYOKE-MANHATTAN BUILDING , 80 SOUTH HIGHLAND AVE.
`OSSINING, NY 10562
`UNITED STATES
`Motion for Summary Judgment
`Brendan Reilly
`breilly@collenIP.com,docket@collenIP.com
`/s/Brendan J. Reilly
`08/20/2007
`91215 ex q_20070820165604.pdf ( 82 pages )(2758446 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`
`
`EXHIBIT QEXHIBIT Q
`
`
`
`
`
`VS.
`
`RICHARD J. OLDENBURG,
`
`Applicant.
`
`DEPOSITION OF RICHARD J. OLDENBURG
`
`Monday, November 21, 2005
`
`10:27 a.m.
`
`INTELLECTUAL PROPERTY LAW OFFICES
`
`1901 South Bascom Avenue, Suite 660
`
`Campbell, CA 95008
`
`Kim Meierotto, CSR
`
`License Number 11602
`
`
`
`Date:
`
`Time:
`
`Location:
`
`Reported by:
`
`ESQUIRE DEPOSITION SERVICES (415) 288-4280
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`OMEGA S.A.,
`
`Opposer,
`
`$EI?3’%"‘B'“"§‘?’F§¥’t."ZE'3
`
` .
`
` ‘7ii'£I-“*!).6.:aL3.iPdi736aér.l«V4>L.Q}-Tckkll-51:3;%i<-Tit’-!li5‘Hw5Nn'i\EV>?
`
`Opposition No. 91~164,08O
`
`
`
`A P P E A R A N C E S:
`
`\~'
`
`For the Opposer:
`
`COLLEN IP
`
`BY:
`
`BRENDAN J. REILLY,
`
`
`
`Attorhev at Law
`
`The Holyoke—Hauhattan Building
`
`U1
`
`kl)
`
`1O
`
`12
`
`80 South Highland Avenue
`
`Ossining—on—Hudson
`
`Westchester County,
`
`New York 10562
`
`(914) 941-5668
`
`For the Applicant:
`
`INTELLECTUAL PROPERTY
`~.-
`'.-~. :7 F‘. 1‘; FT’ '2‘ 1* '_" 1*
`‘.';."'.‘s'»}
`-‘,1 L _'
`.5. >., 3.1-.)
`
`BY: MICHAEL J. HUGHES,
`
`Attorney at Law
`
`1902 South Bascom Avenue
`
`Suite 650
`
`Campbell, California 95008
`
`\_H
`(408) E58~789O
`
`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`
`
`
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`I N D E X
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`0 F
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`E X A M I N A T I O N S:
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`;.
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`By Mr. Reilly .
`
`By Mr. Hughes
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`.
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`5
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`77
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`~—oOo~—
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`I N D E X
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`0 F
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`E X H I B I T S:
`
`l
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`Notice of Dsposit*9n Upon Oral
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`Examination of Richard J. Oldenburg
`
`8
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`Trademark/Service Mark Application,
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`Principal Register
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`17 Color photograph of golf bag
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`18 Color photograph of golf pouch
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`l9 Color photograph of golf balls
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`25 Printout of pages from Omega Web site
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`entitled "Omega and Golf"
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`14
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`15
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`16
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`17
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`l8
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`Page
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`7
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`22
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`23
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`24
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`26
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`26 Printout of pages from Omega Web site
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`28
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`entitled "Omega and Golf USA"
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`6
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`Opposer's First Set of Interrogatories
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`38
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`from Applicant Richard J. Oldenburg
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`Applicant's Answers to First Set of
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`
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`lnterrogatories
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`ESQUIRE DEPOSITION SERVICES (415)
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`288—428O
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`I N D E X
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`0 F
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`E X H I B I T S:
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`.;.
`
`(Continued)
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`Page
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`Opposer's First Request for
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`54
`
`Production of Documents
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`Applicant's Answers to First Request
`
`54
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`for Production of Documents
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`Printout from TARR system
`
`Color copies of Omega Web site
`
`printout
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`58
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`64
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`23
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`Col“: cooies
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`? Cn3j= :i""r:1"
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`'5
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`66
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`——oOo——
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`ESQUIRE DEPOSITION SERVICES (415)
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`288-4280
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`
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`RICHARD J. OLDENBURG,
`
`called as a witness, after having been first duly sworn
`
`by the Certified Shorthand Reporter to tell the truth,
`
`the whole truth, and nothing but
`
`the truth,
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`testitied
`
`3L11
`
`follows:
`
`EXAMINATION BY MR. REILLY:
`
`Q. Good morning. My name is Brendan Reilly.
`
`A. Good morning, Brendan.
`
`Q.
`
`I'm here on behalf of Omega S.A. for the
`
`deposition of applicant in this matter, Richard J.
`
`. A
`
`I
`
`111:3 ‘.1:-:"-5:;
`
`s you probably anticipated,
`
`I'm going to ask
`
`speak clearly. However, if for any reason you cannot
`
`understand my question or you would like me to rephrase
`
`it, please let me know, and I'll do my best to rephrase
`
`the question for you.
`
`Also, if you need to take a break or visit the
`
`rest room,
`
`let me know, and I'll take that into
`
`consideration in deciding when to take a break.
`
`I just
`
`ask if there's a question pending,
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`that you answer the
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`wuestion before the break.
`
`Einally, you'll notice that there's a court
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`reporter sitting right there beside you, and she can
`
`i\3
`
`U‘:
`
`y h1 1
`
`only record verbal responses.
`
`So I ask that all your
`
`
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`ESQUIRE DEPOSITION SERVICES (415) 288~428O
`
`
`
`
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`responses are verbal.
`
`She can't, for example,
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`record
`
`head nods or shaking your head,
`
`that sort of thing, body
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`language, okay?
`
`A
`
`I
`
`,
`
`
`
`Q. Are you on any medicine today that would affect
`
`your ability to answer truthfully?
`
`A. No.
`
`Q. What about alcohol, have you had any alcohol
`
`in
`
`the past 12 hours?
`
`A. No,
`
`I have not.
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`12
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`1 3
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`14
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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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`2*’?
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`g.
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`Java you ever taken a deposition befare?
`
`A
`
`0
`
`Yes,
`
`I have
`
`‘hit s::t cf matter was
`
`:ha‘°
`
`A.
`
`It was a matter between Orlimar Golf and
`
`Galloway Golf.
`
`Q.
`
`A.
`
`How were you involved in that action?
`
`I was the chairman and CEO of Orlimar Golf.
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`Q. What was the basic dispute in that matter?
`
`A.
`
`They had sued us for patent infringement and
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`also for what
`
`they said was misleading advertising.
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`We
`
`won a summary judgment
`
`-— Orlimar,
`
`that is ~— on the
`
`E, V v.._'-
`
`-_j._
`
`.-"=_
`
`v.k
`gr‘!
`
`3'3
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`2; ::_::
`
`-"3
`
`_
`
`.4:-:
`
`2:
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`'~.
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`‘“ 1! :~.
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`amicably.
`
`A. That I believe was in 1999.
`
`Q. When was that?
`
`ESQUIRE DEPOSITION SERVICES
`
`(415)
`
`288-4280
`
`
`
`
`
`Q.
`So you're familiar with this whole process,
`
`
`
`depositions?
`
`A. Yes, sir.
`
`
`
`(Plaintiff's Exhibit No.
`
`I is marked.)
`
`BY MR. REILLY:
`
`Q. Have you seen this document before,
`
`Exhibit 1,
`
`that is?
`
`A.
`
`It looks familiar.
`
`I can ask Michael.
`
`Is {F
`
`I cocunent
`
`-1at yo;
`
`L~
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`have sent
`
`{[1 E
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`via e—mail?
`
`MR.
`
`
`
`I
`
`ch
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`It w 1 F“: ‘"
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`
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`received.
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`BY AR. REILLY:
`
`Q. Mr. Oldenburg, I'd ask that when I ask a
`
`question,
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`that you just answer the question. And
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`if you
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`and Michael need to have some discussion during a
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`or if you think it might tap into some privileged
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`information,
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`then you can discuss it with Michael.
`
`break
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`EJ.
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`understand that's not what you were --
`
`A. That's '-_'j.(w‘.*
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`1.-.7l_"«:‘«',"
`
`dr“».i_n_C{_
`
`
`
`Q.
`
`I understand that.
`
`But just in general ——
`
`
`
`
`A.
`
`Thank you.
`
`Q.
`
`—— it will probably go smoother that way.
`
`ESQUIRE DEPOSITION SERVICES (4l5) 288*428O
`
`
`
`,...|
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`Do you see on page 1 of Plaintiff's Exhibit 1,
`
`the bottom of the first paragraph where it says,
`
`Oldenburg in the £bOVE"Ta@tiOD€fl matter regarding the
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`topics listed in the attached Schedule A”?
`
`A. Yes.
`
`.___.,__?.@_>. _--
`
`”Opposer will take the deposition of Richard J.
`toG)\1O\Ln
`
`Q.
`
`Do you see in the next paragraph there on page
`
`1 of Plaintiff's Exhibit
`
`1 it says, "Opposer requests
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`production of documents and things as requested in the
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`10
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`11
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`14
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`15
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`attached Schedule B"?
`
`A. Yes,
`
`I do.
`
`Q.
`
`Now turn to page 3 of Plaintiff's Exhibit 1.
`
`A. Yes.
`
`Q.
`
`Do you see the Schedule A?
`
`A. Yes,
`
`I do.
`
`Q. And do you see there a list of topics?
`
`A. Yes,
`
`I do.
`
`Q. And on page 5 of Plaintiff‘s Exhibit 1, do you
`
`see Schedule B?
`
`A.
`
`Just note your pages are not numbered.
`
`What number are you referring to?
`
`ESQUIRE DEPOSITION SERVICES (415) 288~428O
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`
`
`
`Q.
`The next page.
`
`A.
`
`So it starts with Schedule B?
`
`A. Yes,
`
`I see that.
`
`U:
`
`Q.
`
`And Item 2
`
`in Schedule B, do you see where it
`
`says,
`
`"Any and all documents and things which are
`
`identified in or responsive to the subject matters noted
`
`in Schedule A"?
`
`A. Yes,
`
`I see that.
`
`Q. Have you brought any documents today?
`
`do,
`
`I have not,
`
`other than the ~w '
`
`rfivuld 3&3
`
`other than the ~— my responses ~-
`
`Q. Okay.
`
`A.
`
`—— to your Schedule A, Schedule B,
`
`and the
`
`_.‘.:_‘ Q _..
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`
`I was asked to zespond to.
`
`Q.
`
`So you don't have any other documents today
`
`that you plan to produce in response to Plaintiff's
`
`Exhibit 1?
`
`A. No.
`
`I know of no others that you have
`
`requested. Have you requested additional documents?
`
`Q. Well, yes. That's what Plaintiff's Exhibit 1
`
`is at
`
`the deposition.
`
`You
`
`also have the ahilitv to
`
`request documents at
`
`the deposition.
`
`18
`
`19
`
`20
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`21
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`A.
`
`Oh, okay.
`
`requesting them?
`
`So we're here.
`
`So you're just now
`
`ESQUIRE DEPOSITION SERVICES
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`(415)
`
`288-4280
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`I
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`1
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`2
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`3
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`4
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`1.3
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`I
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`1
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`Q. No.
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`I requested them for production here today
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`at this time.
`
`A.
`
`I don't have any documents to present at this
`
`time.
`
`Q. Okay. Have you reviewed any documents in
`
`preparation for the deposition today?
`
`A. Yes.
`
`I have reviewed the answers that I
`
`provided to you and the questions that were asked of me
`
`in relationship to those answers.
`
`Q.
`
`Have you reviewed any other documents other
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`than the ones that you previously mentioned in
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`preparation for today?
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`\
`
`X14
`
`Q.
`
`No? What is Bearing Golf,
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`Incorporated?
`
`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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`A. Bearing Golf is an LTC.
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`It's not incorporated.
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`And it's —— Bearing Golf is an LLC which I own for the
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`purposes of doing business in the golf industry.
`
`Q. Are you the sole owner?
`
`A. Yes,
`
`I am.
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`I believe my wife may be named on
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`that as well.
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`It's a community property state.
`
`Q.
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`And your wife's name?
`
`
`
`ii
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`24
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`
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`Q. Are there any other members of the LLC?
`
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`A. None that I've issued any units to. But
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`I
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`believe the board also consists of my son Matthew and my
`10
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`ESQUIRE DEPOSITION SERVICES (415) 288~428O
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`daughter Jennifer. Neither are active in the business.
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`Q. What's the address of Bearing Golf LLC?
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`A. Bearing Golf LLC is 39 Bella Vista, P.O. Box
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`63, Diablo, California
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`Q. When was Bearing Golf LLC created?
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`A. Haven't reviewed the paperwork for a while, but
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`I believe it was in 2002.
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`It may have been 2003.
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`Again,
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`I cannot state definitively when it was created.
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`Q. Okay.
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`You stated earlier that you created
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`Bearing Golf LLC for the purposes of doing business in
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`the golf ind
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`
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`A. That's correct.
`
`Q.
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`Can: yCi1 elatwnr
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`ate an that.
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`Eh Q)
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`business?
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`A.
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`The sale of golf equipment, supplies.
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`Q. What stage of distribution would Bearing Golf
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`be involved in? Would it be retail? manufacture?
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`wholesale?
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`A. Currently it is not
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`involved in any.
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`Q. What do you intend it to be involved in?
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`A.
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`I intend Bearing Golf to be able to operate in
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`Avlfinle areafi 3? golf "wtrihvfi¢n. wtvfher ii
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`retail or wholesale.
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`Q.
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`Do you anticipate having retail outlets?
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`14
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`A.
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`I anticipate that there is a possibility, but
`ll
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`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`would believe that in the foreseeable future, it would
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`course, i. has not
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`be patterned more along how I patterned Orlimar which
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`was wholesale distribution to retailers and also direct
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`been implemented yet, and I'll follow whatever course I
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`feel is best for the business.
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`Q.
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`Is Oldimar
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`(phonetic) still in existence?
`
`A.
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`It's called Orlimar, O—r—l—i—mra—r.
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`They are
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`in existence.
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`They were sold I believe it was in 2003
`
`to King Par Golf in Michigan.
`
`Q.
`
`How long did you work for Orlimar?
`
`A.
`
`I've worked for Orlimar from 1996 through
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`February of 2000.
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`And then
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`I
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`remained on the noarn
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`through the —— I believe it was November of 2000 but not
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`as the chairman. We sold controlling interea: a~ it
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`closed February of 2000.
`
`Q. And Orlimar,
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`that was a corporation?
`
`A. Orlimar was a corporation.
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`It was an S Corp.
`
`Q.
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`Do you know what state it was organized in?
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`A. Yes. California.
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`Q. Was Orlimar —— did Orlimar constitute your
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`E; at experience in the sale of wolf eduinwent?
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`A.
`
`No.
`
`I first began in golf in CHE
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`'70s.
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`I have
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`been a caddy.
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`I have been a sales clerk.
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`I've been an
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`I've been a PGA teaching
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`assistant professional.
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`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`
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`professional.
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`I've been a head professional.
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`I'm
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`currently a member of the PGA, Class A member of the
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`PGA. First inducted in 1981.
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`And I have owned I believe it's in the neighborhood of
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`27 different golf shop locations as a retailer over that
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`period of time, not all at the same time.
`
`I believe 22
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`was the most that I operated at any one time as the
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`president/CEO/chairman.
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`Q. What were the name of those retail operations?
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`A.
`
`?he first ”as Orlimar M~ excuse La
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`~~ gar my Us
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`between Orlimar and Oldenburg. But the first was
`
`.Oldenburd's Golf Shop.
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`It was a sole orcsriatershio,
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`and it was operated out of Cameron Park Country Club
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`where I was the head professional and worked :5 an
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`independent contractor and had the rights, a hundred
`
`percent rights,
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`to own and operate the golf shop.
`
`Q. Were the other retail establishments also solo
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`14
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`;.._\ U1
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`16
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`17
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`18
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`proprietorships?
`
`A.
`
`In 1983 I opened the first of many Nevada Bob's
`
`golf shops, Nevada Bob's,
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`B—o—b—s, Discount Golf, first
`
`as a —— first as a
`
`aw trying to find the word —— as an
`
`associate or ~- it wasn L a franchise ~~
`
`
`
`time that I became Nevada Bob's,
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`and
`13
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`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`It subsequently became a
`I did not pay any royalties.
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`franchise, and I entered into franchise agreements which
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`,I
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`()1
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`O‘\
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`16
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`17
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`18
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`19
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`2O
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`did involve royalties.
`
`J
`J
`.
`.
`here the maioritv of the 27 golf 3L~nr
`
`owned, were they Nevada Bob's stores?
`
`A. Yes.
`
`Q. Where were these stores located geographically?
`
`A. Northern California, Arizona and Illinois.
`
`Q. What brands of golf equipment did you sell at
`
`Nevada Bob's?
`
`A. Every major brand.
`
`Q.
`
`Can you name a few.
`
`(‘;:'[I.*\1.;:.:'!
`e....:.._.._-_. 1'
`
`':"_::1'v._=I:’\':"
`_
`- ...
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`‘,._ ..‘ , , 1
`I‘./fr.‘-v’-'r.:. ..,
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`:7 1,
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`,
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`
`Wilson, Ping.
`
`How many more would you like? MacGregor.
`
`Q.
`
`As many as you'd like to share.
`
`A.
`
`Every major brand I believe, or every major
`
`brand that had customers interested in it.
`
`Q. These brands that you just named, do you
`
`anticipate them as being the main competitors of Bearing
`
`Golf LLC?
`
`A. Yes.
`
`I would say that we —— as selling to
`
`we would he in the same arena.
`
`9911?“? in
`
`the public is an arena that most of them do not
`
`participate in.
`
`25
`
`Q.
`How would you plan on selling directly to the
`14
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`ESQUIRE DEPOSITION SERVICES (415) §88~428O
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`A.
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`I would plan to use direct response
`
`(J!
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`O‘.
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`.77
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`advertising.
`
`I'm a member of the Direct Marketing
`/-
`
`Association,
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`and I believe I have xuite a bit or
`
`knowledge and background in that area.
`
`Q.
`
`So is that like a mailing or a catalog?
`
`A. Direct marketing is any marketing that you can
`
`track the response of the public and then alter —— use
`
`those results to better do your marketing or to tweak
`
`your marketing or to offer different incentives,
`J
`\I
`what;v¢r ~w it gives you information to help you better
`
`advertise to the public as opposed to Madison Avenue
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`traditional advertising that —« on TV that would not
`
`allow you to easily track what
`
`the response is to a
`
`particular ad.
`
`Q. But
`
`in terms of the actual transaction,
`
`the
`
`purchase of the equipment, how would you —— how do you
`
`anticipate doing that?
`
`A.
`
`I anticipate to sell directly to the public
`
`where they would pay Orlimar directly, and we would ship
`
`the clubs —— not Orlimar, excuse me.
`
`O. Bearinfi Golf?
`
`|»‘«-
`
`Bearing Golf.
`
`And the brands that searing 'olf
`
`are entitled to use.
`
`l5
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`Q.
`
`How would they order that?
`
`That's what I'm
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`ESQUIRE DEPOSITION SERVICES (415)
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`288-4280
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`IO
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`U!
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`A.
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`They would respond to an 800 number or a Web
`
`address or a direct mailing, a newspaper ad,
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`a
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`
`
`Q. What brands would Bearing Golf sell?
`
`trying to get at.
`
`A. Bearing Golf would sell Omega.
`
`It would also
`
`sell —— I believe we'll sell Cannon. We'll sell
`
`Bearing.
`
`Those are the three that I have applied for
`
`and been passed by the trademark officer, or at least
`
`the initial review.
`
`Q.
`
`So w~n
`
`
`inn 2 plan to sell the b«.nds
`
`“
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`our
`
`major competitors,
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`the Calloway, Titleist?
`
`R. That's nut true.
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`Q. Okay.
`
`
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`i
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`,1?
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`A.
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`I wsulfi sell them in a different arena. Well,
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`I shouldn't say a "different arena."
`
`I have a business
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`plan that Bearing may be the parent company for that
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`will sell custom golf clubs of major brands to the
`
`public.
`
`Q. This ~— the business plan,
`
`is that a written
`
`my head, but it is based on my extensive knowledge in
`
`
`
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`the golf business of selling at both retail and
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`wholesale to retailers and to the public.
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`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`
`Q. Have you discussed this business plan with
`
`Ln
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`anyone?
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`A.
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`I have spoken of this business plan with my
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`wife and my children, my father.
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`I believe, although I
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`can't name them specifically,
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`that I would have spoken
`
`of it to my friends and associates in the golf business.
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`Q.
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`So is that ~-
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`A. And also my friends, my personal friends.
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`Q. Was that that you planned to discuss it with
`
`your friends and associates, your colleagues, or that
`
`you already have?
`
`A.
`
`I would —— I believe that it would have already
`
`come up in discussions with these individwels.
`
`As far
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`as personal,
`
`I do know for a fact that it has —— parts
`
`of this plan, as far as selling major branded clubs,
`
`I
`
`have discussed with the sales managers, VP of sales,
`
`CEOS of major companies as far as the custom clubs.
`
`I have two golf companies.
`
`I have Bearing Golf
`
`which is an LLC in California, and I have Custom Golf
`
`Clubs LLC in Kentucky.
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`Q. What does Custom Golf Clubs do?
`
`A. Custom Golf Clubs LE?
`
`I see them an :=-».._1__£.~'.1..*=._~t_v~.;,;,
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`custom club orders and housing the different shafts,
`
`heads, grips, components, assembled clubs needed to
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`fulfill orders that are placed for custom golf clubs by
`17
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`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`
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`either retailers or the public.
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`Q. Dardnn me.
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`Q. And Custom Golf LLC,
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`they would manufacture --
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`A. Custom Golf Clubs LLC.
`
`A. Yes. Manufacture in the same way that what you
`
`would refer to as major manufacturers like Calloway who
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`do not manufacture the head or the shaft or the grip.
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`They assemble them.
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`So these would be assembled in
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`Kentucky and shipped from Kentucky.
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`Q.
`
`Do you know where you would purchase the raw
`
`materials frnm,
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`the shaft heads e~ the shafts,
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`the
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`heads,
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`the grips?" Have you decided that yet?
`
`inalized that
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`I'm very familiar
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`with different Taiwanese and Chinese manufacturers as
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`well as »— of club heads where the majority of club
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`heads are made in Taiwan and China,
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`the vast majority
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`for major brands.
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`And also I know golf grips which are made in
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`various places and shafts which again are -— some are
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`made in the U.S.A. and some are made abroad, but have
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`not finalized any contracts or any designs.
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`3. Are vow 1 nanacinq member nf CD35“? "elf Cl he .
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`OX
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`:
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`é
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`A.
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`I am the ~~ yes,
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`I'm the managing
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`president/CEO/manager of the LLC, both LLCS.
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`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`
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`Q. And Custom Golf Clubs LLC,
`is it set up in the
`
`same manner as Bearing Golf LLC with your wife and your
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`children?
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`5
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`C be‘ eve
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`(jl
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`Q. Are txere any other owners of Custom Golf Clubs
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`LLC, or members I should say?
`
`A. No,
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`I don't believe there are. And again,
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`without issuing units,
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`I don't know that technically
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`there's anybody else but me that is a member so ——
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`Q. Who is Bob Sheldon?
`
`A.
`
`huh Hheldon is my attorney.
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`Q.
`
`Is he an owner of or a member of Custom Golf
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`Clubs TZC or Bearing Gol; LLC?
`
`A.
`
`He does not own any units.
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`He has put together
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`both of those entities for me, arranged for them,
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`just
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`as he has —— did Orlimar and other companies.
`
`And I
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`quite honestly can't tell you whether he is listed as
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`either a manager or a —- someone that would be sent
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`material.
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`I honestly can't answer that without
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`consulting Bob to see exactly how that is done.
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`I do know in Orlimar's case he was a contact,
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`whether it be a manader,
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`or he was the Contact
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`for
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`Alliance Capital LLC which was a California corporation
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`19
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`which I owned along with my partner, and that is how we
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`held our units in Orlimar Golf Equipment Company LLC.
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`ESQUIRE DEPOSITION SERVICES (415) 288—428O
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`1 L
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`Q.
`
`Please mark this as Plaintiff's 8.
`
`(Plaintiff's Exhibit No.
`
`8 is marked.)
`
`BY MR. REILLY:
`
`A.
`
`(Reviewing document.)
`
`MR. HUGHES:
`
`Is this e—mail supposed to be part
`
`1
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`MR. REILLY: No, it's not. That's an e—mail
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`between us. Maybe we can remove the last two pages.
`
`It's probably on Richard's copy as well.
`
`THE WITNESS: Okay.
`
`BY MR. REILLY:
`
`Q.
`
`Do you recogni:e this document“
`
`A.
`
`I can't say that I've seen this exact document,
`
`but
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`I recognize it as what Michael would have done per
`
`my instructions to apply for the OMEGA trademark.
`
`Q.
`
`Do you see on page 2 of 5 there's ~-
`
`A.
`
`Page 205?
`
`Q.
`
`A.
`
`Look in the top right corner.
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`Two of five.
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`Q.
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`It says, "Description, golf clubs, golf bags,
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`
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`Golf gloves, divot repair tools, Golf ball markers. golf
`H
`
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`23
`tees, golf balls, and nonmotorized golf carts.
`
`
`
`A. Yes,
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`I do.
`
`24
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`25
`Q. Are those the goods that you plan to use in
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`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`association with the OMEGA mark?
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`A. Not all of them initially, but at some point
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`I
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`I believe they're all ~-
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`would consider all of these.
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`that description is the description of the Intern¢
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`41
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`Class 028 which -— for golf clubs and equipment which
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`the OMEGA trademark —— that I would have the use to use
`
`the OMEGA trademark.
`
`Q.1 Are there any other goods that you plan to use
`in association with the OMEGA trademark?
`A
`
`A. Not at this time.
`
`Q.
`
`Can you leak at page
`
`12
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`14
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`16
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`17
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`18
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`20
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`Exhibit 8.
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`Do you see where it says, "Filing
`
`information" in bold,
`
`ind then beneath it says,
`
`"Q hmfit
`
`date, Friday, December 5th, 2003"?
`
`A. Yes,
`
`I do.
`
`Q.
`
`Do you understand that date to be the date that
`
`your attorney submitted this trademark application for
`
`you?
`
`A.
`
`In looking at this document,
`
`it appears that
`
`that is the case.
`
`Q. Have you sold any of the goods listed in this
`
`trademark apn1icatinn under the OMEGA mark?
`
`A.
`
`No,
`
`I have not.
`
`Q. Have you advertised any goods listed in this
`
`21
`
`trademark application in association with the OMEGA
`
`ESQUIRE DEPOSITION SERVICES (415)
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`I have not.
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`No,
`
`A.
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`Q.
`
`Do you see on page 4 of 5 the declaration at
`
`the bottom or the care?
`
`(J1
`
`A. Yes.
`
`Q.
`
`Take a moment to review that declaration,
`
`that
`
`paragraph.
`
`A.
`
`(Reviewing document.)
`
`Yes, I've read it.
`
`Q.
`
`Is that statement accurate
`
`to the best of your
`
`knowledge?
`
`A. Yes,
`
`I believe it is.
`
`Q.
`
`“ ‘W
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`“let”
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`k tti“
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`3 Exhibit
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`17.
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`(Plaintiff's Exhibit No. 17
`
`is marked.)
`
`BY MR. REILLY:
`
`Q. Had an opportunity to look at Plaintiff's
`
`Exhibit 17?
`
`A. Yes.
`
`Q. And can you please describe that document.
`
`A.
`
`Looks like a golf bag with the name of Omega
`
`with the Omega
`
`7 3”-'r‘. :11f3:.:~ E
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`Sign above
`
`59 9.
`
`It
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`have Calloway Big Bertha advertised clubs.
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`It looks
`
`CO
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`19
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`20
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`have an umbrella that I can't recognize who the
`
`
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`advertiser is.
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`It has golf balls and a putter.
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`2
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`}
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`brand that
`
`I can see in golf,
`
`in the golf industry,
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`is
`
`Calloway Big Bertha.
`
`Q.
`
`You do see the Omega golf bag though;
`
`is that
`
`correct?
`
`A. Yes.
`
`I believe I said that I see the omega
`
`symbol and the Omega name on the golf bag.
`
`Q. With regard to the word "Omega" that you see on
`
`the golf bag,
`
`is that the same spelling that won suula
`
`use for your OMEGA mark?
`
`A
`
`Yes, it 1"
`
`Q.
`
`Do you plan to use the Greek alphabet letter
`
`omega on yeur goods?
`
`A. Yes,
`
`I do.
`
`Perhaps not all goods but some
`
`goods.
`
`Q.
`
`Do you plan on using the Greek letter omega
`
`adjacent to the word "Omega" as well?
`
`A. Yes.
`
`I believe that I will use the Omega name,
`
`I will use the alphabet symbol, and I will use both of
`
`them together,
`
`Q.
`
`lid like to mark this as Plain:iff’s Exhibit
`
`(Plaintiff's Exhibit No. 18 is marked.)
`
`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`And again, because of the quality of the
`
`picture,
`
`I cannot identify what brand is being
`
`advertised or shown in this picture.
`
`The only known
`
`
`
`THE WITNESS:
`
`I would like to add that I
`
`believe ~~
`
`BY MR. REILLY:
`
`Q. There's no question pending,
`
`thank you.
`
`A.
`
`(Reviewing document.)
`
`Q. Have you had an opportunity to look at
`
`Plaintiff's Exhibit 18?
`
`A. Yes,
`
`I have.
`
`Q. And can you please describe what you see on
`
`Plaintiff's 18.
`
`A.
`
`I see a ladies handbag with tees on it.
`
`I see
`
`three golf balls, one of which has a watch around it,
`
`Q.
`
`Do you see the word "Omega" stamped into the
`
`leather of the handbag?
`
`A.
`
`I cannot identify it as the word "Omega"
`
`because of the quality of the picture.
`
`Q.
`
`Do you see in the caption beneath the picture
`
`where it says,
`
`"Used to carry golf balls,
`
`tees, et
`
`cetera”?
`
`U‘:
`
`12
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`1.3
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`16
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`17
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`18
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`19
`
`20
`
`(Reviewing document.)
`
`(Plaintiff's Exhibit No. 19 is marked.)
`
`THE WITNESS:
`
`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`
`
`
`
`BY MR. REILLY:
`
`Q. Have you had an opportunity to look at
`
`Plaintiff's Exhibit 19?
`
`K
`
`was,
`
`I ha 9
`
`Q.
`
`And can you describe what you see in that
`
`exhibit.
`
`A.
`
`I see four golf balls, one dozen pack of what I
`
`assume are golf balls with Omega and the brand —— excuse
`
`me —— the Omega name and the Greek alphabet omega on the
`
`box.
`
`I see a second box with the same thing that
`
`appears to have three sleeves of golf balls in ii.
`
`in:
`
`I see an open sleeve of golf balls that appears to have
`
`».a‘_».-.
`the Greek alnhabet omefia.
`
`Q. Referring now collectively to Plaintiff's
`
`Exhibit 17,
`
`18 and 19 which I've just sh
`
`do you
`
`believe that Bearing Golf LLC would be engaged in the
`
`business at least of some of the same items that are
`
`listed in these three documents?
`
`A.
`
`I believe it's possible.
`
`Q.
`
`For the record,
`
`Plaintiff's Exhibit 17,
`
`18 and
`
`19 do not reflect the business activities of Bearing or
`
`the goods of Bearing LLC;
`
`is that ridht?
`
`11
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`1-.3
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`17
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`18
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`19
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`20
`
`A.
`
`Please rephrase cnat.
`
`is that right?
`
`Q. Plaintiff's Exhibit 17,
`
`18 and 19 were not
`
`prepared by Bearing Golf LLC;
`
`ESQUIRE DEPOSITION SERVICES (415) 288-4280
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`
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`A. No. No.
`
`Bearing Golf LLC did not prepare
`
`these pictures or manufacture or assemble these
`
`items.
`
`-',)\
`
`C7)
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`20
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`21
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`Q. Bearing Golf LLC has not assembled any golf
`
`hafia, QQIE hm Ew av ~n?F vlvtt
`
`A. Not for sale.
`
`Bearing Golf has produced
`
`samples for testing,
`
`but there are no names on the
`
`samples.
`
`Q.
`
`I
`
`think now might be a good time for a short
`
`break.
`
`MR. HUGHES:
`
`As you wish.
`
`(Break taken from 11:22
`
`MR. REILLY:
`
`It is now 11:35,
`
`and we're back on
`
`the record.
`
`I’d like :0 mark this is
`
`(Elaintiff’s Exhibit No.
`
`25 is marked.)
`
`BY MR. REIELY:
`
`Q. Mr. Oldenburg,
`
`can you take a moment to look
`
`over Plaintiff's Exhibit 25,
`
`please.
`
`A.
`
`(Reviewing document.)
`
`All right,
`
`I've taken a look at it.
`
`Q.
`
`Do you recognize this document?
`
`A. No,
`
`I have not seen this document.
`
`Q,
`
`Does it aooear to be a
`
`Web site printout?
`
`A.
`
`It appee:5 to be a
`
`New site printout.
`
`Q.
`
`Do you see the OMEGA trademark at the top of
`
`
`
`the page?
`
`ESQUIRE DEPOSITION SERVICES
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`(415)
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`288~428O
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`
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`I do.
`
`A. Yes,
`
`Q.
`
`Do you see in green where it says "Omega and
`
`..,.
`
`;
`
`§
`
`Golf"?
`
`A. Yes I do.
`
`Q.
`
`Do you see beneath there where it says, "Title
`
`sponsorships, Omega expresses its firm commitment to
`
`golf on an international level through the sponsorship
`
`of two major tournaments"?
`
`A. Yes,
`
`I do.
`
`I I
`
`Q. And it says,
`
`"The Omega European Masters held
`
`in Crans~Montana, Switzerland, and the Omega Kong Kong
`
`Open on the Asian PGA tour"?
`
`A.
`
`I see where it says that.
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`14
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`17
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`18
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`19
`
`20
`
`21
`
`Q. Are you :amiliar with those tournaments?
`
`A. Not specifically.
`
`Q.
`
`Do you follow professional golf,
`
`the tour I
`
`should say?
`
`A.
`
`I follow it in the United States.
`
`Q.
`
`Do you see below where it says "USA"?
`
`A. Yes.
`
`Q.
`
`Do you see where it says,
`
`"Omega is the
`
`official timekeeper of the PGA tour and senior PGA
`
`
`
`Do you see beside that paragraph the emblem of
`27
`
`Yes.
`
`ESQUIRE DEPOSITION SERVICES (415) 288-4280
`
`
`
`;.
`
`
`
`the PGA tour?
`
`A. Yes,
`
`I do.
`
`Q. Will you please look on page 2 of 2,
`
`
`
`Wi
`?lain:ift 3 3 hit
`
`'I_; .\
`is.
`
`.~\;_.\
`Jg
`
`"om
`
`2.-..~. t
`
`ii.-..
`-\:
`L Q g._ .‘__,,—)
`
`1-0.
`
`5
`
`01
`
`\,.~)
`
`17
`
`18
`
`19
`
`20
`
` Z
`
`showing people playing gel
`
`%
`
`?
`
`A. Yes,
`
`I do.
`
`Q.
`
`Do you see at the top of the page where it
`
`says,
`
`"Official site of Omega watches,
`
`world of Omega"?
`
`A. Yes,
`
`I do.
`
`Q.
`
`I'd like to mark this as Plaintiff's Exhibit
`
`(Plaintiff's Exhibit No. 26 is marked.)
`
`Q.
`
`Please take a moment to look at Plaintiff's
`
`Exhibit 26.
`
`A.
`
`(Reviewing document.)
`
`I've reviewed it.
`
`Q.
`
`Do you see where it says Omega and Golf in the
`
`United States?
`
`A. Yes,
`
`I do.
`
`Q.
`
`Do you see beneath that heading where it says,
`
`"Time is an extremely immortart
`
`»j\:>:r'%‘
`
`of our
`
`‘?T."!Ol”l'.
`
`vs
`
`lam wade,
`
`EGA tour senior vice president of corporate
`
`marketing and business development"?
`
`
`
`A. Yes,
`
`I do.
`
`ESQUIRE DEPOSITION SERVICES (415)
`
`288-4280
`
`
`
`
`
`Q. And do you have any reason to doubt whether
`
`Omega is the official timekeeper of the PGA tour?
`
`A. Not of the PGA tour.
`
`I believe they are based
`
`on what you've shown we the official timekeepa: of
`
`the
`
`PGA tour but not the PGA and not pga.com as was asked of
`
`me in the questions that you asked me to answer.
`
`Q.
`
`Do you see on the first page of Plaintiff's
`
`Exhibit 26 the standing clock with the OMEGA mark on it?
`
`A. Yes,
`
`I do.
`
`Q. Have you ever attended any PGA tour events?
`-~r
`1 have.
`
`A. Yes,
`
`Q. Have you ever seen one of these clocks at one
`
`of those event
`
`?L1’)
`
`A. No,
`
`I have not.
`
`Q.
`
`I don‘t know if the quality of yeur copy is
`
`good enough, but do you see on the clock beneath the
`
`actual timekeeping device,
`
`there's a silhouette of a
`
`golfer?
`
`A.
`
`I see a silhouette of a golfer.
`
`Q.
`
`Do you see the OMEGA mark on that clock as
`
`well?
`
`the clock.
`
`see it on the clock.
`
`I see it
`
`abov?
`
`U1
`
`0‘:
`
`10
`
`511
`
`12
`
`13
`
`14
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`>22
`
`Q.
`
`Do you recall in your trademark application
`
`29
`
`that you listed nonmotorized golf carts as a potential
`
`ESQUIRE DEPOSITION SERVICES (415) 288-4280
`
`
`
`
`
`good that you would sell under the OMEGA mark?
`
`A.
`
`I recognize that that was included by Mike in
`
`the application.
`
`Q.
`
`Do yam have an intent
`
`
`
`carts under the OMEGA mark?
`
`A. Not at this time.
`
`Q
`
`Q. With respect to golfing, nonmotorized golf
`
`carts are typically the devices that one would put their
`
`golf bag on;
`
`is that correct?
`
`A. Yes.
`
`....x;._iLIJl\J
`
`l6
`
`17
`
`18
`
`19
`
`20
`
`21
`
`Q. And they would use that item to drag
`
`them cart the golf bag across the course;
`
`is that
`
`corrett?
`
`A. That's correct. But it's not typically how
`
`golf bags are used on the golf course.
`
`It's a very low i
`
`percentage. They're used —~ they're put on motorized
`
`golf carts and carried would be the vast majority. But
`
`pull carts as it is pictured is an accessory item that
`
`is used on the golf course, and I've sold many of them.
`
`Q. When you say "pictured," you're referring to
`
`the picture on page 2 of Plaintiff's Exhibit 26?
`T
`
`A. Yes, where
`
`see what appears to he a null
`
`
`
`Q.
`
`Do you see an Omega brand golf bag on the pull
`
`ESQUIRE DEPOSITION SERVICES (415) 288-4280
`
`30
`
`
`
`
`
`A. Yes,
`
`I would say they're very well known.
`
`Q. Are ?nu 592:2 that both Ernie £15 a.i 5:593”
`
`Garcia are official spokespeople for the Omega brand?
`
`A.
`
`I believe that Ernie Els is the official
`
`spokesperson for Titleist in golf exclusively. And I
`
`believe Sergio Garcia is the ~~ is the endorser of
`
`Taylor Made golf products exclusively.
`
`I do not believe that either Ernie Els or
`
`Sergio Garcia are official sponsors of Omega golf
`
`products. And to the best of my knowledge in knowing
`
`and having signed and been involved in contractual
`
`agreements with players, my educated guess would be they
`
`.1
`would be strictly prohibited from soonsorinq a competing
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`have official spokespeople such as professional
`
`Do most of the major brands of golf products
`
`Q.
`
`ESQUIRE DEPOSITION SERVICES (415) 288-4280
`
`6
`
`Q. Who are those individuals?
`
`A.
`
`They are PGA tour players.
`
`Q. Would you say those individuals are well known
`
`in their field?
`
`
`
`
`
`athletes?
`
`
`
`A. Yes. That
`
`in the equipment category, gol
`
`equipment category, which is the category which I'm ——
`
`I've applied for wi
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