BULKY DOCUMENTS
`
`(Exceeds 100 pages)
`
`Proceeding/Serial No: 91 1 68789
`
`Filed: 3[11[201O
`
`Title: Opposer’s Regly Brief in Supgort of Motion to
`Consolidate
`
`

`
`TTAB
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Trademark App. Serial No.: 78/492,687
`
`Filing Date: September 30, 2004
`
`Mark: ROCKSTAR
`
`Publication Date: September 13, 2005
`
`Int’l Class: 41
`
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`
`Opposer,
`
`V.
`
`RUSSELL G. WEINER,
`
`Applicant.
`
`In the Matter of Trademark App. Serial No.: 78/725,675
`
`Filing Date: October 3, 2005
`
`Mark: ROCKSTAR
`
`Publication Date: September 26, 2006
`
`Int’l Class: 30
`
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`
`Opposer,
`
`v.
`
`RUSSELL G. WEINER,
`
`Applicant.
`
`)
`
`)
`
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`Opposition No.: 91168789
`
`Opposition No.2 91175317
`
`OPPOSER'S REPLY BRIEF IN SUPPORT OF MOTION TO CONSOLIDATE
`
`H11111111111111111111111111uI111m1I11m11
`03-11-2019
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`

`
`TABLE OF CONTENTS
`
`EEG)
`
`INTRODUCTION ........................................................................................................ .. l
`
`ARGUMENT ................................................................................................................ ..
`
`1
`
`A.
`
`Weiner Misstates and Misrepresents the Facts ................................................... .. I
`
`1. Take—Two Timely Filed Its Motion. .............................................................. .. 2
`
`2. The Board May Properly Consider Consolidation At This
`Juncture ................................................................................................. .. 3
`
`B.
`
`Weiner’s Arguments Misconstrues the Law ....................................................... .. 4
`
`1. Consolidation Is Appropriate Given the Marks and Goods At
`Issue. ..................................................................................................... .. 4
`
`2. Consolidation Will Not Result in Prejudice to Either Party. .......................... .. 6
`
`Ill.
`
`CONCLUSION ............................................................................................................. .. 8
`
`

`
`TABLE OF AUTHORITIES
`
`Pageg s)
`
`Cases
`
`
`Am. Med. Rehab. Providers Assoc. v. UB Found. Activities Inc.
`
`2008 WL 4674613 (TTAB 2008) .......................................................................................... .. 7
`
`Cheeseburger in Paradise, Inc. v. Jimmy Buffet,
`2005 WL 847437. (TTAB 2005) ........................................................................................... .. 7
`
`Envirotech Cogp. v. Solaron Com,
`211 U.S.P.Q. 724 (TTAB 1981) ............................................................................................ .. 7
`
`Ernest Evans and the Ernest Evans Corporation v. Ryan J. Earl,
`2002 WL 31121360 (TTAB 2002) ........................................................................................ .. 1
`
`
`Izod Ltd. v. La Chemise LaCosta,
`
`178 U.S.P.Q. 440 (TTAB 1973) ............................................................................................ .. 7
`
`Markva v. Entrepreneur Media, Inc.,
`2005 WL 1581553 (TTAB 2005) .....................................................
`
`................................... .. 7
`
`Outdoor Kids, Inc. v. Parris Mfg. C0,, Inc.,
`Cancellation Nos. 92045687, 92046943 ................................................................................ .. 9
`
`PRL USA Holdings, Inc. v. Malibu Riding and Tennis Club, Ltd.,
`2001 WL 1046121 (TTAB 2001) .......................................................................................... .. 8
`
`S Industries, Inc. and Central Mfg. Co. Joined As Pagy Plaintiff v. JL Audio, Inc.,
`2003 WL 21189779 (T.T.A.B 2003). .................................................................................... .. 1
`
`Turbo Sportswear, Inc. v. Marmot Mountain, Ltd.,
`Opp. Nos. 91157260, 91157625 ............................................................................................ .. 9
`
`Viacom Int’l Inc v. Schrier,
`
`2002 WL 1225270 (TTAB 2002) ........................................................................................... .. 7
`
`

`
`I.
`
`INTRODUCTION
`
`The issue before the Board is simple. Oppositions Nos. 91168789 and 911753171
`
`concern the same parties,
`
`identical ROCKSTAR marks, and are both in exactly the same
`
`procedural posture. Take-Two asks that these Oppositions be consolidated to spare the parties
`
`the time and expense of taking duplicative testimony depositions and creating duplicative
`
`Notices of Reliance and trial briefs, and to spare the Board the time and expense of analyzing the
`
`same presentations and issuing opinions on overlapping issues (opinions that conceivably could
`
`be contradictory).
`
`Rather than address this simple issue, Weiner offers a series of ad hominem attacks and
`
`straw man arguments. This Court should disregard Weiner’s inappropriate tone and irrelevant
`
`arguments} and issue an order consolidating these Oppositions.
`
`II.
`
`ARGUMENT
`
`A.
`
`Weiner Misstates and Misrepresents the Facts
`
`Weiner’s Opposition arguments are built on a foundation of factual misstatements too
`
`numerous and too irrelevant to address individually. While Take-Two's motion detailed each of
`
`the relevant
`
`factors
`
`that weigh heavily in favor of consolidation, Weiner
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`resorted to
`
`inflammatory rhetoric and intentional mischaracterizations concerning the subject matter of
`
`' Oppositions Nos. 91168789 and 91175317 are referred to herein, respectively, as “Opposition
`I” and “Opposition II” and, collectively as the “Oppositions.”
`
`2Take-Two notes that “Those who practice before the Board must conduct themselves with
`decorum...personal attacks whether it be directed towards counsel, at party, or Board employee
`will not be tolerated.” S Indus., Inc v. JL Audio, 1110., 2003 WL 21189779 at * 4 n. 10 (TTAB
`2003). See also Evans v. Earl, 2002 WL 31121360 at *2 (TTAB 2002) (directing applicant to
`refrain from ad hominem attacks on opposers or their attorneys).
`
`

`
`Take—Two's video games. Whether it be “purple prose” or "trash talk," these attacks are
`
`irrelevant to the issue of consolidation currently pending and properly before the Board. While
`
`Take-Two will not correct all of these misrepresentations, a number of misstatements regarding
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`the pertinent facts are addressed below.
`
`1. Take-Two Timely Filed Its Motion.
`
`Weiner claims that “Take—Two fails to adequately explain why it waited over three
`79
`years to move to consolidate. Opp. at 1 (emphasis in original). But a cursory review of the
`
`record illustrates why Take-Two filed its motion a month ago: These Oppositions were
`
`suspended so that the parties could engage in settlement negotiations which would have resolved
`
`their disputes without a need for formal consolidation.
`
`Specifically, with respect to Opposition I, Take-Two filed a motion for summary
`
`judgment on December 12, 2006. Supplemental Declaration of Alexa L. Lewis (“Supp Lewis
`
`Decl.”), Ex. 16 at No. 10. Beginning on March 15, 2007, the parties filed numerous stipulations
`
`to suspend the consideration of that motion pending settlement negotiations. See Q at Nos. 18,
`
`20, 24, 25, 29. Take-Two’s motion was not decided until December 11, 2009, at which time
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`proceedings officially resumed.
`
`lgl_. at No. 34. Take-Two promptly filed this Motion weeks later.
`
`ld_. at No. 40.
`
`In Opposition II, just as in Opposition I,
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`the parties agreed to multiple stipulated
`
`suspensions to permit Weiner and Take-Two to attempt to negotiate a settlement. E‘, Ex. 17 at
`
`Nos. 6, 8, 12, 14. The parties continued their negotiations after the final suspension expired on
`
`July 28, 2009. See igl_._ at 17-18. Then, on October 30, 2009, Take-Two filed another motion to
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`

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`suspend,3 which remained pending when Take-Two filed the instant motion. See id. at Nos. 17-
`
`18, 28. Therefore, any argument that Take-Two should have filed its motion to consolidate
`
`earlier is specious, given the procedural posture of these Oppositions.
`
`Weiner also asserts that Take-Two’s motion to consolidate “should be denied because it
`
`was improperly filed after the proceedings were suspended.” Opp. at 9. A review of the record
`
`demonstrates that this assertion is inaccurate. Take-Two filed its Motion to Consolidate on
`
`January 29, 2010.4 Q, Ex. 16 (Opp.
`
`I Docket Nos. 40-41). Opposition I was suspended on
`
`February 2, 2010. Q. (Opp. I Docket No. 38). Opposition II was suspended on February 16,
`
`2010. Q, Ex. 17 (Opp. II Docket No. 28).
`
`2. The Board May Properly Consider Consolidation At This Juncture
`
`Weiner inaccurately suggests that the Board already has ruled on consolidation in this
`
`matter by partially quoting a footnote in the Board’s order on Take-Two’s motion for summary
`
`judgment in Opposition I. That footnote, in its entirety, states:
`
`We are aware that the parties are also engaged in Opposition No.
`91175317. However, because of the differences
`in the trial
`schedule between the two proceedings, including the outstanding
`
`3 As explained in Take-Two’s Reply in support of its Motion to Suspend, Weiner’s assertion
`that Take-Two filed its motion without any warning is also inaccurate. Supp. Lewis Decl., Ex.
`17, N0. 18. Although there is no requirement that Take-Two “warn” Weiner of its impending
`motion, Take-Two did in fact do so as a courtesy to opposing counsel. Q, Ex. 18.
`
`4 Take-Two attempted to electronically file its Motion to Consolidate on January 29, 2010.
`After experiencing repeated technical difficulties, on that same day, counsel for Take-Two (1)
`served Weiner with its motion and supporting declaration and (2) e-mailed the papers to ESTTA.
`Supp. Lewis Decl. 1] 5. Out of an abundance of caution, the Motion also was filed by Express
`Mail at the earliest possible occasion, the next day. Q On February 6, 2010, the Board stated:
`“The Board is in receipt of your documents (you may View them on TTABVUE). ESTTA was
`experiencing intermittent problems on January 29, 2010. The problem has been rectified and the
`Board regrets the resulting inconvenience.” Q, Ex. 19.
`
`

`
`motion in Opposition No. 91175317 to suspend and to extend
`discovery, and the differences in applicant’s goods between the
`two proceedings (i.e., the services relating to sporting events in
`Opposition No. 91168789, versus the chewing gum and grain
`based food goods in Opposition No. 91175317), we decline to
`exercise our discretion at this time to sua sponte consolidate the
`opposition proceedings.
`
`LCL, Ex. 16, No. 34.
`
`It is clear from the entirety this Board’s footnote that:
`
`(1) the Board’s prior
`
`decision not to consolidate “at this time,” does not foreclose the possibility of consolidation at a
`
`later time (i.e. now); (2) the Board’s prior decision not to sua sponte consolidate does not
`
`foreclose the possibility of consolidation at a later time; and (3) the Board’s prior decision was
`
`premised on the fact that the Oppositions were in different procedural postures at that time,
`
`whereas now both Oppositions are in the exact same procedural posture — they are both
`
`suspended, neither testimony period has opened, and their schedules can be re-set as a single
`
`consolidated action. Moreover, as explained below, any differences between the goods at issue
`
`should not require that these Oppositions proceed without consolidation.
`
`B.
`
`Weiner’s Arguments Misconstrues the Law.
`
`Weiner offers only two arguments against consolidation. First, Weiner argues that the
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`marks and goods are different and, second, that consolidation would prejudice him. Neither
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`argument has any merit.
`
`1. Consolidation Is Appropriate Given the Marks and Goods At Issue.
`
`Weiner’s opposition incorrectly argues that the marks at issue in the Oppositions are
`
`different. To the contrary, while the goods are different the marks at issue are identical:
`
`(1) the
`
`mark at
`
`issue in Opposition I
`
`is ROCKSTAR;
`
`(2)
`
`the mark at
`
`issue in Opposition II
`
`is
`
`ROCKSTAR; and (3) the marks cited in the Notices of Opposition for both Oppositions are the
`
`

`
`same. See Supp. Lewis Decl. Exs. 20-21. Weiner also incorrectly speculates that Take—Two
`
`may rely on different evidence in connection with different goods, specifically,
`
`that
`
`in
`
`Opposition I, Take—Two will refer to “‘2K Sports’ video games.” Opp. at 12.
`
`Take—Two
`
`certainly may have obtained new Rockstar-relevant marks since filing these Oppositions.
`
`However, to the extent Take-Two seeks to rely on any additional Rockstar marks, Take—Two
`
`anticipates its reliance would be identical in both Oppositions.
`
`Weiner also speculates that Take-Two will introduce evidence of different goods and
`
`services in each of the Oppositions. Weiner’s speculation is simply incorrect. Take—Two has
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`asserted the same marks, used in connection with the same goods and services, in its Notices of
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`Opposition in connection with both Opposition I and II, Moreover, Take-Two has asserted
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`likelihood of confusion and dilution claims in each Opposition. Take-Two anticipates it will rely
`
`on its use of the same marks in connection with both Oppositions.
`
`Weiner also asserts that his own goods and services at issue in Opposition I and II are
`
`dissimilar but this assertion is immaterial. Consolidation is entirely appropriate even if the
`
`defendant’s goods and services at issue are dissimilar,5 See, e.g., Am. Med. Rehab. Providers
`
`Assoc. v. UB Found. Activities Inc., 2008 WL 4674613 at *1 (TTAB 2008) (consolidating
`
`opposition to a mark on printed publications in I.C. 16, and cancellation of a mark for developing
`
`measuring instruments and educational manuals in I.C. 41); Markva v. Entrepreneur Media, Inc.,
`
`In arguing that consolidation is inappropriate if the goods and services are different, Weiner
`5
`cites only two inapposite cases. In Envirotech Corp. v. Solaron Corp., 211 U.S.P.Q. 724 (TTAB
`1981),
`the marks were different.
`Id. at 726 (marks had
`different design characteristics).
`Opposer’s reliance on Izod is even weaker,
`including because,
`in that case,
`there was a
`significant difference in the character and extent of the issues absent here.
`Izod, Ltd. v. La
`Chemise LaCosta, 178 U.S.P.Q. 440 (TTAB 1973).
`
`

`
`2005 WL 1581553, at *1-2 (TTAB 2005) (consolidating two cancellation petitions in connection
`
`with mark used for advertising and business services in I.C. 35, and for paper goods and printed
`
`matter in I.C. 16); Cheeseburger in Paradise, Inc. v. Jimmy Buffet, 2005 WL 847437. at *1—2
`
`(TTAB 2005) (consolidating oppositions to two marks used for jewelry in I.C. 14, housewares
`
`and glass in I.C. 21, clothing in I.C. 25, entertainment services in I.C. 41, and restaurant services
`
`in I.C. 45, stating that consolidation was appropriate because “the parties to the respective
`
`proceedings are the same and the proceedings involve common questions of law or fact); Viacom
`
`Int’! Inc v. Schrier, 2002 WL 1225270, at *1—2 (TTAB 2002) (consolidating two oppositions to a
`
`mark used for paper goods and printed matter in I.C. 16, and education and entertainment in I.C.
`
`41); PRL USA Holdings, Inc. v. Malibu Riding and Tennis Club, Ltd., 2001 WL 104612], at *1-
`
`*2 (TTAB 2001) (consolidating oppositions to marks used for jewelry in I.C. 14, clothing in I.C.
`
`25 and advertising and business services in I.C. 35).
`
`2. Consolidation Will Not Result in Prejudice to Either Pagty.
`
`Weiner incorrectly claims he will be prejudiced by consolidation. Take—Two is in the
`
`position of the plaintiff.
`
`It has every interest
`
`in minimizing its own legal expense and in
`
`resolving these Oppositions as expeditiously as possible. Moreover, these Oppositions are not,
`
`as characterized by Weiner, in their eleventh hours — there is still a long road ahead, including
`
`testimony depositions on both sides; submissions of Notices of Reliance; and subsequent
`
`briefing. Consolidation will not slow down the Oppositions going forward. Rather, as Weiner is
`
`well aware, consolidation will very likely accelerate their resolution, eliminating duplicative
`
`testimony depositions, briefing, and duplicative consideration by different Board panels.
`
`

`
`Finally, Weiner argues that his responses thus far somehow has been tailored specifically
`
`to each Opposition. Consolidation would not undo or interfere with any purported tailoring of
`
`Weiner’s litigation strategy.6 Weiner may continue to employ whatever litigation strategies he
`
`desires. However, the Board should order these Oppositions to be consolidated.
`
`See, e.g.,
`
`Outdoor Kids, Inc. v. Parris Mfg. Co., Cancellation Nos. 92045687, 92046943 (consolidation
`
`after close of discovery), Q at Ex. 26; Turbo Sportswear,
`
`Inc. v. Marmot Mt., Opp. Nos.
`
`91157260, 91157625 (same), Q at Ex. 27.
`
`6 Weiner also makes unfounded accusations about Take-Two’s conduct during discovery. First,
`Weiner implies that Take—Two served its written discovery responses late. Opp. at 6. However,
`after the Opposition was filed, the parties agreed to stand down from litigation activity, including
`that Take—Two could have an extension of time to serve responses. See Supp. Lewis Decl., Ex.
`22. When, on November 13, 2009, Weiner demanded service of responses “next week,” Take-
`Two served its responses timely. Q, 11 7. Likewise, Take-Two’s production of documents was
`timely. Q Second, Weiner claims that Take—Two did not meet and confer in connection with its
`motion to compel. Opp. at n. 2. But Take—Two sent Weiner a meet-and-confer letter just two
`days after receiving Weiner’s document production. Q, Exs. 23-24. That same day, counsel for
`the parties spoke, and Weiner requested that the meet-and-confer be continued. Q 11 9. The
`parties continue to discuss the discovery-related issues, but Take—Two was obligated to file its
`motion to compel due to the impending opening of its testimony period. Third, Weiner claims
`Take-Two’s method of production of documents was inappropriate. Opp. at 8. But, as is
`common, Take—Two produced its documents via uploading to a FTP server, which is accessed by
`the other party by going online, and by serving a DVD of the documents by express mail. Q,
`Ex. 25. That same Friday, Take—Two sent multiple e-mails to Weiner explaining the production,
`which Weiner received. Q On Monday, when Weiner sought assistance downloading the
`documents, Take—Two immediately assisted. Q
`
`

`
`III.
`
`CONCLUSION
`
`For the foregoing reasons, Take-Two respectfully requests that its Motion to Consolidate
`
`be granted in its entirety.
`
`Dated: March 11, 2010
`
`MITCHELL SILBERBERG & KNUPP LLP
`
`By:
`
`fiwyvt W/\\
`
`Karin G. Pagnanelli
`Eric J. German
`
`Alexa L. Lewis
`
`Mitchell Silberberg & Knupp LLP
`11377 West Olympic Blvd.
`Los Angeles, CA 90064-1683
`Attorneys for Opposer
`
`

`
`CERTIFICATE OF MAILING
`
`
`Date of Deposit: March 11 2010
`
`~13 x
`V
`-
`"Express Mail" mailing label number: DD '7“)
`
`W
`
`;7rm.»:i
`.775 l
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`I’\
`(4 ~»
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`I hereby certify that this paper or fee, OPPOSER'S REPLY BRIEF IN SUPPORT OF
`MOTION TO CONSOLIDATE,
`is being deposited with the United States Postal Service
`"Express Mail Post Office to Addressee" on the date indicated above and is addressed to:
`UNITED STATES PATENT AND TRADEMARK OFFICE, Trademark Trial and Appeal
`
`Board , P.O. Box 1451, Alexandria, Virginia 22313-1451.
`
`M
`
`Alexa L. Lewis
`
`CERTIFICATE OF SERVICE
`
`This is to certify that on March 11, 2010, I caused a true and correct copy of the
`
`foregoing OPPOSER'S REPLY BRIEF IN SUPPORT OF MOTION TO CONSOLIDATE
`
`to be delivered via e-mail and first-class mail to:
`
`Ian K. Boyd, Esq.
`Raffi V. Zerounian, Esq.
`Harvey Siskind LLP
`Four Embarcadero Center, 39th Floor
`
`San Francisco, CA 94111-4115
`
`Executed this 11th day of March, 2010, in Los Angeles, California.
`
`allow Ce/ct/ti/I
`
`Alexa L. Lewis
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.: 91168789
`
`Opposition No.: 91175317
`
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`Q/\/\./\/\./&/\2%
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`)
`
`In the Matter of Trademark App. Serial No.: 78/492,687
`
`Filing Date: September 30, 2004
`
`Mark: ROCKSTAR
`
`Publication Date: September 13, 2005
`
`Int’l Class: 41
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`
`Opposer,
`
`V.
`
`RUSSELL G. WEINER,
`
`In the Matter of Trademark App. Serial No.: 78/725,675
`
`Filing Date: October 3, 2005
`
`Mark: ROCKSTAR
`
`Publication Date: September 26, 2006
`
`Int’1 Class: 30
`
`TAKE-TWO INTERACTIVE SOFTWARE, INC.,
`
`Opposer,
`
`V.
`
`RUSSELL G. WEINER,
`
`_
`
`Applicant.
`
`SUPPLEMENTAL DECLARATION OF ALEXA L. LEWIS IN SUPPORT OF
`OPPOSER’S MOTION TO CONSOLIDATE
`
`

`
`I, Alexa L. Lewis, declare:
`
`1.
`
`I am an attorney at law licensed to practice before the Courts of the State of
`
`California and United States District Court for the Central District of California.
`
`I am an
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`associate with the law firm of Mitchell Silberberg & Knupp LLP, attorneys for Opposer Take-
`
`Two Interactive Software, Inc. (“Opposer” or “Take-Two”) in these matters. Unless otherwise
`
`stated, I have personal knowledge of the following facts and, if called and sworn as a witness,
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`could and would competently testify thereto.
`
`2.
`
`Attached hereto as Exhibit 16 is a true and correct copy of the docket sheet for
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`Opposition No. 91168789, which I caused to be printed from the Trademark Trial and Appeal;
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`Board’s website on or around March 10, 2010.
`
`3.
`
`Attached hereto as Exhibit 17 is a true and correct copy of the docket sheet for
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`Opposition No. 91 175317, which I caused to be printed from the Trademark Trial and Appeal;
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`Board’s website on or around March 10, 2010.
`
`4.
`
`Attached hereto as Exhibit 18 is a true and correct copy of an e—mail sent from
`
`Ms. Pagnanelli to Mr. Boyd on or about October 19, 2009. Mr. Boyd did not reply to that email
`
`or to subsequent attempts to reach him by phone.
`
`5.
`
`Take-Two attempted to file electronically its Motion to Consolidate on January
`
`29, 2010. After experiencing repeated technical difficulties, that same day I caused Weiner to
`
`be served by e—mail and mail with the motion and supporting declaration and e-mailed the papers
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`to ESTTA. Out of an abundance of caution, I also caused the Motion to be filed by Express Mail
`
`at the earliest possible occasion, the next day, on January 30, 2010, and also served that
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`document on Weiner. Attached hereto as Exhibit 19 is a true and correct copy of an e—mail
`
`exchange between myself and ESTTA on, respectively, January 29, 2010, and February 6, 2010.
`
`

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`6.
`
`Attached hereto as Exhibits 20 and 21 are true and correct copies of the Notices of
`
`Opposition in, respectively, Opposition Nos. 91168789 and 91175317.
`
`7.
`
`Attached hereto as Exhibit 22 is a true and correct copy of an e-mail sent from
`
`Raffi Zerounian, counsel for Applicant, to myself on or about November 13, 2009. Following
`
`receipt of that e-mail, on November 20, 2009, I served Take-Two’s responses to Applicant’s
`
`First Set of Interrogatories, First Set of Requests for the Production of Documents, and First Set
`
`of Requests for Admissions. Take-Two has engaged in several productions of documents in
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`Opposition Nos. 91168789 and 91175317, including on January 22 and 29, 2010.
`
`8.
`
`Attached hereto as Exhibit 23 is a true and correct copy of a letter dated January
`
`19, 2010 from Mr. Zerounian to Ms. Pagnanelli, the hard copy of which was received by Ms.
`
`Pagnanelli on January 20, 2010.
`
`9.
`
`Attached hereto as Exhibit 24 is a true and correct copy of a letter dated January
`
`22, 2010 from myself to Mr. Zerounian, in which I made a good faith effort to resolve with Mr.
`
`Zerounian the issues presented in this motion. That same day, I spoke with Mr. Zerounian, and
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`he requested that the meet-and-confer be continued. To date, the parties continue to discuss the
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`discovery-related issues.
`
`10.
`
`Attached hereto as Group Exhibit 25 are a true and correct copies of January 22,
`
`2010 correspondence from myself to counsel for Weiner, as well as a “read” receipt from
`
`counsel from Weiner. On Monday, January 25, 2010, when Weiner sought assistance
`
`downloading the documents, Take-Two immediately assisted.
`
`1 1.
`
`Attached hereto as Exhibit 26 is a true and correct copy of a March 6, 2007 Order
`
`in Outdoor Kids, Inc. v. Parris Mfg. C0,, Cancellation Nos. 92045687, 92046943.
`
`

`
`12.
`
`Attached hereto as Exhibit 27 is a true and correct copy of a September 24, 2004
`
`Order in Turbo Sportswear, Inc. v. Marmot Mt., Opposition No. 91157260, 91157625.
`
`13.
`
`Attached hereto as Exhibit 28 is a true and correct copy ofAm. Med. Rehab.
`
`Providers Assoc. v. UB Found. Activities Inc, 2008 WL 4674613 (T.T.A.B. 2008).
`
`14.
`
`Attached hereto as Exhibit 29 is a true and correct copy of Cheeseburger in
`
`Paradise, Inc. v. Jimmy Buffet, 2005 WL 847437 (T.T.A.B. 2005).
`
`15.
`
`Attached hereto as Exhibit 30 is a true and correct copy of Markva v.
`
`Entrepreneur Media, Inc., 2005 WL 1581553 (T.T.A.B. 2005).
`
`16.
`
`Attached hereto as Exhibit 31 is a true and correct copy of OLA LOA, LLC v.
`
`Remington Health Products, LLC, 2002 WL 31001990 (T.T.A.B. 2002).
`
`17.
`
`Attached hereto as Exhibit 32 is a true and correct copy of PRL USA Holdings,
`
`Inc. v. Malibu Riding and Tennis Club, Ltd., 2001 WL 1046121 (T.T.A.B. 2001).
`
`18.
`
`Attached hereto as Exhibit 33 is a true and correct copy of Richemont Int ‘l S.A. v.
`
`Susan Dell, Inc., 2006 WL 1126223 (T.T.A.B. 2006).
`
`19.
`
`Attached hereto as Exhibit 34 is a true and correct copy of Viacom Int ’I Inc v.
`
`Schrier, 2002 WL 1225270 (T.T.A.B. 2002)
`
`I declare under penalty of perjury under the laws of the United States that the foregoing is
`
`true and correct. Executed on March 11, 2010, at Los Angeles, California.
`
`I"
`\l~‘.
`/
`
`It
`
`< A
`
`lexa L. Lewis
`
`

`
`EXHIBIT 16
`
`EXHIBIT 16
`
`

`
`
`
`United States Patent and Trademark Office
`
`Homelsite Index I Search |GuidesIContacts|eBusiness I eBiz alerts I News I Help
`
`TTABVUE. Trademark Trial and Appeal Board Inquiry System
`
`v1.5
`
`Opposition
`
`Number: 91168789
`
`Status: Pending
`
`Filing Date: 01/11/2006
`
`Status Date: 01/24/2006
`
`Defendant
`
`Interlocutory Attorney: _C_HERYL S GOODMAN
`
`Name: Russell_§,Jvei,n _r
`
`Correspondence: Ia_n__K_Boyg
`Harvey Siskind LLP
`4 Embarcadero Center Fl 39
`
`San Francisco, CA 94111-4115
`UNITED STATES
`
`iboyd@harveysiskind.com
`
`Serial #: Z8_¢19.26_t3Z
`
`Ap.E@:ILi9_r1_l=_i|e
`
`Application Status: Opposition Pending
`Mark: ROCKSTAR
`
`Plaintiff
`
`Name: ,T_a._Ke_:TwQ_1nIe,:ac:Jy,e_.SQftwa_re: In..<_;._
`
`Correspondence: Karin G. Pagnanelli
`Mitchell Silberberg & Knupp LLP
`11377 W Olympic Blvd
`Los Angeles, CA 90064-1683
`UNITED STATES
`
`kgp@msk.com, ejg@msk.com, al|@msk.com
`
`Ap,p[_i_caAtiQLF_i<|_e_
`Serial #: 7V58,35_()_94
`Application Status: Section 8 and 15 — Accepted and Acknowledged
`Mark: R
`
`Agicmcation File
`Serial #: 75835088
`Application Status: Section 8 and 15 - Accepted and Acknowledged
`Mark: ROCKSTAR GAMES
`
`Registration #: 239_1635
`
`Registration #: 2gl_5_6@
`
`Granted To Date: 01/11/2006
`
`Prosecution History
`
`# Date
`
`History Text
`
`48_ 03/10/2010
`
`SUSPENDED
`
`.47. 03/08/20 1 0
`
`SJLPLJ, LATLQN EQ R_A[\l. .EXIE,N §IQ,N_O.F_IlME
`
`46 0 2/ 24/ 2 0 1 0
`
`D_'_S__Q.E_|?_O.S1II QN/_R ESEQ NS,E__-.T_O MIQTIO N_
`
`45. 0 2/ 2 2/ 2 O 1 O
`
`STIPULETION_l£B_AN_E)§[lE.N§QN_Q£ TIM E
`
`45}, 02/ 19/2010
`
`EXTENSION ,Q.E._.II,M,E,G.RAl§lIED
`
`Q 02/16/2010
`
`D'_S MOTION FOR AN EXTENSION OF TIME
`
`42 02/16/2010
`
`D‘S MOTION FOR AN EXTENSION OF TIME
`
`1 01/30/2010
`01/30/2010
`
`4
`
`P's DECL IN SUPPORT OF MOTION TO CQNSL
`P'S MOTION TO CONSOLIDATE
`
`319 02/12/2010
`
`D’S MOTION FOR AN EXTENSION OF TIME
`
`38 02/02/2010
`
`SUS,EE,NDE..D
`
`Due Date
`
`

`
`32.
`
`01/29/2010
`
`D'S MOTION TO COMPEL DISCOVERY
`
`01/29/2010
`
`P'S DECL IN SUPPORT OF ITS MOTION TO COMPEL
`
`01/29/2010
`
`P'S MOTION TO COMPEL DISCOVERY
`
`12/11/2009
`
`10/30/2009
`
`02/05/2009
`
`02/03/2009
`
`11/14/2008
`
`11/11/2008
`
`11/07/2008
`
`11/07/2008
`
`PL'S MOT. FOR SUMM. JUDGMENT DENIED
`
`CHANGE OF CORRESEQNDENCE,,_ADDR_E_SS
`
`_SUSPEN_DED,PENDINCLDISP_OF OUTSINDNG MOT ‘
`D_'_SIMOT__TO/SUSENPEN D SEILMI .N_EG,Q_'LIATIQ_N_S_
`SUSBENDED
`
`9' S,M.,QT_ T_Q,SLJ.S__E,BEN,D.. SEILM_T_._N EGQTI.AIION.S_
`
`C |:L/fi‘L(3..E_ _,OL,C,QB.R ESPQ NQIflC__E._ _,/1D_|l)_P:E§_S_,
`AEBEABANEE
`
`05/01/2008
`
`SUSBENDED
`
`04/01/2008
`
`03/31/2008
`
`02/21/2008
`
`02/19/2008
`
`10/16/2007
`
`08/13/2007
`
`04/03/2007
`
`03/15/2007
`
`02/05/2007
`
`01/17/2007
`
`12/14/2006
`
`12/19/2006
`
`12/14/2006
`
`12/14/2006
`
`12/14/2006
`
`IZSWMQT TQ__SUSP B,E_N_D_ SETLMT NEGOTIATIONS
`D‘S MOT TO SUSP PEND SETLMT NEGOTIATIONS
`SUSPENDED
`
`STIPULATION FOR AN EXTENSION OF TIME
`SUSPENDED
`
`S_TI,_PJ'D,‘—LTAl/_C;QN_SlD EBAJIQNN. QF/EOE N_Q_,.S, UMM J.
`SUSBENDED
`
`SII_PlQ.S_U.SPfl‘.J D BEN D__.S ETILEMENT N_,E3G_O,T_N.S
`
`E‘ S,,EE_ELY_I_N__S__UEEQR_1'__.QE._M QI_I.Q_N
`
`D'_S"C>E.EQ_SLI1lCJ_N[.5|'l_|E_S_P,,QN_SE1,TQ__M9]1O1\1
`
`Exhibit 14 to Rutcofsky affidavit (confidential)
`
`SU_SEE_N.D.E_D.£§Ll.DI_NC:- D..I.$.E_Q£,QLJISTN_D_NG._MQI
`EABI1ALJM4ELK2XE;QE;E1Q
`
`AEEADA)LIT_,QF FEED H, P.ER_K,1N/S,
`AHHDAVN'OFBARRYRUTCOFSKY
`
`12/13/2006
`
`P'S MOTION FOR SUMMARY JUDGMENT
`
`12/13/2006
`
`09/25/2006
`
`09/13/2006
`
`06/29/2006
`
`06/21/2006
`
`Confidential Plaintiff's Summary Judgment
`STIPULATION NOTED AND APPROVED
`
`SI1_ElJ_L_AI.I.QN,, F0 R..A_|,\_|._ EXTEN,.__$IQ N 0_F._T1M E
`
`SII PU LATIOVN NOTED .A,N_D WAPPRQ;/E_D
`
`STI RU. LATED PRQ..T__EC"[I)/E O_RD,EB_
`
`03/01/2006
`
`A_N.§.\_/AER
`
`01/24/2006
`
`01/24/2006
`
`01/11/2006
`
`PENDING,INSTTTUTED
`
`N ,0TLC,E__A_N D IBIAL l.3_.AT_ES_ S EN_T},,A,NSV\LE_R_ DLJE 1.
`ELL EELA ND, ,.F E.E_
`
`16?iiii;13:8IElb’TB1%’EET81%15lo125’1”’E013ii’I8I51
`it-*iNwiJ>;U1iO\:\iI0o\D{8‘:
`
`5-‘14>-
`F‘1-‘‘Nin»
`
`H U1
`
`Results as of 03/10/2010 06:49 PM
`
`Search: I
`
`|
`
`.HOME |
`
`INDEX] SEARCH I eBUS|NESS | CONTACT US | PRIVACY STATEMENT
`
`03/05/2006
`
`I
`A
`~.£‘:'I=;I
`
`//1
`-«-‘.3--noun
`/
`,
`i
`‘L132 E-..\[/,.-_,....
`
`

`
`EXHIBIT 17
`
`EXHIBIT 17
`
`

`
`
`
`United States Patent and Trademark Office
`
`Home I Site Index I Search I Guides I Contacts I eBusiness I eBiz a|ertsI News I Help
`
`TTABVUE. Trademark Trial and Appeal Board Inquiry System
`
`v1.5
`
`Opposition
`
`Number: 91175317
`
`Status: Pending
`
`Filing Date: 01/24/2007
`
`Status Date: 01/24/2007
`
`Defendant
`
`Interlocutory Attorney: GEORGE POLOGEORGIS
`
`Name: _\./.i1ei_r1e.r11Fi.L1_sge1I___,<S..e
`
`Correspondence: IAN_5._B_C)_YI)4_ ESQ:
`HARVEY SISKIND JACOBS LLP
`4 EMBARCADERO CTR FL 39
`
`SAN FRANCISCO, CA 94111-4115
`UNITED STATES
`
`rzerounian@harveysiskind.com, iboyd@harveysiskind.com
`
`Serial #: Z§725675
`
`App|icatior1_Eile_
`
`Application Status: Opposition Pending
`Mark: ROCKSTAR
`
`Plaintiff
`
`Name: Take-Two Interact,i\_Le _Softyy_are,
`
`In_c_._
`
`Correspondence: Karin G. Pagnanelli
`Mitchell Silberberg & Knupp LLP
`11377 W. Olympic Blvd.
`Los Angeles, CA 90064-1683
`UNITED STATES
`
`Prosecution History
`
`i<gp@msk.com, ej9@msk.com, a|l@msk.com
`
`Date
`
`History Text
`
`03/10/2010
`
`EXTENSION OF TIME GRANTED
`
`03/08/2010
`
`STIPULATION FOR AN EXTENSION OF TIME
`
`03/04/2010
`
`SUSPENDED
`
`01/30/2010
`
`P'S MOTION TO CQNSOLIDATE
`
`02/24/2010
`
`Dj_S OPPOSITIOMRESPONSEIIO M_C__)/TIAQIN
`
`02/22/2010
`
`STIPULATION FOR AN EXTENSION OF TIME
`
`02/16/2010
`
`D'S M_OT_I_QN _FOR._AN EXTENSION OF TIME
`
`0 2/ 1 6/ 2 0 1 0
`
`S U_S£ENQ.E.Q_,E_EN,lLN.§..._m S,E._Q.E_1Q1UfLSIN_DN1(§_,M..Q
`
`0 2/0 5/ 2 0 1 0
`
`STIEl_J_,L,AIIQiJ,,_F_Q_R_ _/LN, EX,TEN§,IQ_.N QE II M_E
`
`01/25/2010
`O1/22/2010
`
`DE,CLAR._AI,ION_ IN SUEPQ.RT,QF,M.OTION TQICOMEEL
`P'S MOTION TO COMPEL DISCOVERY
`
`0 1/22/20 1 0
`
`P',S,M Q11QN_ ..1Z.Q1£QM PEL .DI,S,CO\1/.E BX
`
`12/11/2009
`
`D'S OPPOSITION[RESPONSE TO MOTION
`
`11/23/2009
`
`P'S REPLY IN SUPPORT OF MOTION
`
`11/23/2009
`
`P'S REPLY IN SUPPORT OF MOTION
`
`11/16/2009
`
`D'S OPPOSITION/RESPONSE TO MOTION
`
`11/06/2009
`
`CHANGE OF CORRESPONDENCE ADDRESS
`
`‘»—:‘N‘M’ru‘NNM,NNgNiNjw*wiwlwtw{L.u3,;
`too»;mum-LnioxN{ooiuo.oio—~iNw4>m
`
`18 10/30/2009
`
`P'S, REPLYIN. SUEPQRT QF MOTION
`
`Due Date
`
`

`
`
`
`||—‘If\)L\JI-I>U'l;‘O\-\II®§\D§S‘V‘EEIKIGISIZ.
`
`’10/30/2009
`
`E"S MOTION FOR AN EXTENSION OF TIME
`
`10/30/2009
`
`APPEARANCE
`
`02/11/2009
`
`SUSPENDED
`
`01/29/2009
`
`STIP TO SUSPEND PEND SETTLEMENT NEGOTNS
`
`11/10/2008
`
`SUSEEDUQEQ
`
`11/10/2008
`
`STIP TQ SUSPEND PEND__S,.ETI',LEMEN_T NEGOTNS.
`
`10/22/2008
`
`CHANGEJDELEQRBESHQNDENCEJAQDBESS
`
`09/26/2008
`
`AEPEARANQE
`
`02/19/2008
`
`SU§EENQEQ
`
`02/19/2008
`
`5,DP_.T_Q_S..LlS P_E_N___,P_E.[\LQ _S__E1:'L,E_ E I _E‘GOTN..S_
`
`08/16/2007
`
`SU§EElfl2ED
`
`08/13/2007
`
`03/05/2007
`
`03/05/2007
`
`01/24/2007
`
`01/24/2007
`
`01/24/2007
`
`SII P, IQ_SUS BE ND, PEN D . S_ET_|'LE ME N,'LN_EC1_QII\J S
`
`ANSWER
`ANSWER
`
`PENDING,INSTITUTED
`
`NOTICE AND TRIAL DATES SENT; ANSWER DUE:
`FILED AND FEE
`
`03/05/2007
`
`Results as of 03/10/2010 06:50 PM
`
`Search: I
`
`I
`
`.HOME I INDEX] SEARCH I eBUSINESS I CONTACT US I PRIVACY STATEMENT
`
`

`
`EXHIBIT 18
`
`EXHIBIT 18
`
`

`
`Pa nanelli, Karin
`
`From:
`Sent:
`To:
`Subject:
`
`ian,
`
`Pagnanelli, Karin
`Monday, October 19, 2009 10:40 AM
`‘lan K Boyd‘
`WelnerIRockstar
`
`I know that you were finding out what you/your client thinks about
`I am just following up on our last conversion.
`attending a mediation, and during the meantime, you have given Rockstar an extension of time for its responses in
`the Class 30 proceeding. Since the discovery cut off is approaching in that procee