‘:G&w LABORATORIES,
`H
`A Oppoeer;
`
`INc;,
`I
`
`
`
`
`
`vs..
`GW PHAEMA LTD.,
`
`»
`
`A
`
`I
`
`A
`
`:. Opposition No.
`D91169571.
`
`Applicant.
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`DEPOSITION TESTIMONY OF:
`
`STEPHEN c. GREENE
`
`FRIDAY,
`
`JULY 27, 2007
`
`- ***
`
`HIGHLY CONFIDENTIAL
`
`***
`
`***
`
`ATTORNEYS‘ EYES ONLY ***
`
`
`
`GUY J. RENZI
`
`& ASSOCIATES
`
`Golden Crest Corpofate Center
`
`2277 Highway #33, Suite 410
`
` Trenton, New Jersey 08690
`
`(6o9)‘9e9-9199
`
`800—368—7652 (TOLL FREE)
`
`I
`
`www.renziassociates.com
`
`(.ul\)I--‘
`
`17
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`18
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`'20
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`212
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`.22
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`23
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`24
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`25'
`
`
`H
`A Oppoeer;
`
`INc;,
`I
`
`
`
`
`
`vs..
`GW PHAEMA LTD.,
`
`»
`
`A
`
`I
`
`A
`
`:. Opposition No.
`D91169571.
`
`Applicant.
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`DEPOSITION TESTIMONY OF:
`
`STEPHEN c. GREENE
`
`FRIDAY,
`
`JULY 27, 2007
`
`- ***
`
`HIGHLY CONFIDENTIAL
`
`***
`
`***
`
`ATTORNEYS‘ EYES ONLY ***
`
`
`
`GUY J. RENZI
`
`& ASSOCIATES
`
`Golden Crest Corpofate Center
`
`2277 Highway #33, Suite 410
`
` Trenton, New Jersey 08690
`
`(6o9)‘9e9-9199
`
`800—368—7652 (TOLL FREE)
`
`I
`
`www.renziassociates.com
`
`(.ul\)I--‘
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`17
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`Eage 2
`
`Computer-aided transcript of the
`
`.deposition testimony of STEPHEN c. GREENE taken
`
`stenographically in the ebove>entitled matter
`:bef¢re_ELIzABETH M. KONDOR, a Certified Court
`efieporter and Notary Public of the State of New
`Jersey, at the offices of Lerner, David,
`'Littenberg, Krumhoiz & Mentlik, ELP, 600 South
`
`Afienue Weet, Westfield, New Jersey, on Friday,
`J-JgIy.f7, 2007, commenting at 10:10 a.m.
`
`10
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`11
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`13
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`??
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`£5
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`16
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`18;
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`19
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`20
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`22
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`23%,
`»24E
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`25
`
`-A P PIE-A R.A N C E s;
`.RADER, FI$HMAN 0 GRAUfiR,rELLC
`- BYr
`DOUGLAE P. LaLONE, ESQ.
`39533 Woodfiard Avenue — Suite 140
`
`'gB1oomfie1d,ai11,»MI_48304
`(248) 594-0650
`I
`
`For the Appiicant;
`
`LERNER, DAvID;'LITTENBERG,'KEUMHoLz
`& MENTLIK, LLB
`‘BY;
`-SAMANTHA M} KAMEEOS, ESQ.’
`
`600 South Avenue West
`
`Westfield, New Jersey 07090
`
`(9081 65455000
`
`For the Opposer.
`
`(509) 989-9199
`Gui J. Renzi : Aseociates
`_www.renziassociates.com
`
`
`
`Page 3
`
`WITNESS
`
`STEPHEN c. GREENE
`
`Examination by MS. Kameros
`
`“
`
`_
`
`8
`
`Examination by Mr; LaLone'
`
`
`
`
`
`E x H I B I T s
`
`(EXHIBITS FORWARDED AND RETAfNED BY MS. KAMEROS.)
`
`ifi
`1:
`.
`
`l
`
`A
`
`=
`
`-
`DESCRIPTION
`Us Patent and Trademark Office‘
`Registration Nc. 2,577,687
`
`PAGE
`
`(G&W~O110)
`
`.
`
`'
`
`-
`
`’:
`
`15
`
`
`
`US Patent and Trademark Office.
`
`
`
`
`
`
`
`
`‘Registration No.
`2,606,786A
`
`.(G&W-0068)
`
`
`
`(Marked but withdrawn)
`
`
`
`4
`
`Phctocopied page of G&W's
`
`
`
`Catalog & Price List
`
`Effective January 1, 1969
`
`
`
`
`
`
`
`
`
`
`5
`
`--
`
`Photocopied page of G&W's
`Catalog & Price List
`
`(G&W—O145)
`
`
`‘Effective January 1, 1970
`(G&w—0144)
`
`
`.Guy J. Renzi 5 Associstss
`(609) 989-9199
`"
`www.renziassociates.com
`
`I-'
`
`(.AJl\)
`
`.4"mm
`
`CD
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`10.
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`11
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`16'
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`Page 4..
`
`
`
`E x H": B I T s’
`
`
`
`
`
`Photocopied page of G&W's
`
`Wholesale Price List
`
`
`
`.DESCRIPTION
`
`e’4{wwwM‘H
`
`10
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`11
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`12
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`14
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`20
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`21
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`22
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`2s
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`-24.
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`'25
`
`‘Effecfiive July 1, 1979
`
`(G&W-0144)
`
`‘
`
`9
`
`.
`
`32S
`
`_G&W's 2000 Product List
`
`(G&W—O094-98)
`
`’~
`
`~ "
`
`G&W's 2007 Product List
`
`(G&W70158-63)
`
`_
`
`,
`
`.
`
`«Sell sheet for G&W's Creems'
`
`& Ointments
`
`(G&W—O225—26)~ ’
`
`_
`
`l
`
`32
`
`32
`
`39
`
`Sell sheet for G&W's Indomethacin
`Suppositories USP 50 mg.
`
`(G&W-0219-20)
`
`‘
`
`.’
`
`'
`
`39
`
`Sell sheet for G&W's prescriptionv
`
`products
`
`(eaweozzi-22)_ '-
`
`-
`
`39
`
`
`
`'
`
`10
`11
`
`
`12
`
`Sell sheet for G&W's.Metronidazo1e
`
`
`
`>Topical Cream 0.75%
`
`(saw-0202)
`
`‘.
`
`’
`
`V
`
`39
`
`l3
`
`Sell sheet fd: G&W‘s Promethegen
`
`(G&W—O205)
`
`
`(609) 939-9199
`Guy J. Renzi S Associates
`ewww;;enziassociates,com
`
`
`
`E X H I B I T S
`
`Page 5
`
`VDESCRIPTION
`
`Sell sheet for G&W's Rx Products
`
`
`
`(G&W—0207)
`
`4
`
`39
`
`
`
`
`
`
`15.
`
`Sell sheet for G&W's Acteaminophen~
`
`(G&W-0208)
`
`_
`
`39
`
`Sell sheet for G&W's Laxatives
`
`(G&W-0210)
`
`G&W Laboratories,
`
`Inc. brochure
`
`(G&W-0146-57)
`
`Sell sheet for G&W's Suppositories,
`
`Creams, Ointments, Tablets
`
`(G&W—0217—18)
`
`
`Promethazine ad
`
`49
`
`
`(saw-0164f"
`1993 Red Book
`
`»
`
`V
`
`
`
`
`20
`
`
`
`21
`
`
`
`(G&W-0178-97)
`
`'
`
`49
`
`Copied pages from PL Buyer
`
`Supplier Source Book"
`
`(G&W—O176-77)
`
`Product package for Indomethacin
`
`Suppositories USP 50 mg-
`
`
`
`
`(G&W—0239)
`
`Guy J. Renzi & Associates
`wwu.renziassociates.com
`
`(609).989-9199
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`19
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`Page 6
`
`I B I T S E X H
`
`
`
`
`DESCRIPTION
`
`23
`
`24
`
`’
`
`2S._
`
`AProduct package for Formulation R
`(G&W-0242)
`.
`~
`~
`Product package for Promethegan
`(c&w—o297)
`‘
`.
`Product package for Acephen
`
`I 54
`
`' 54
`
`(G&W-0265)
`
`Product package for
`
`
`
`
`
`
`
`
`4cProchlorperazine
`(G&W—02S8)
`
`-
`
`'
`
`I
`
`54‘
`
`27
`
`’
`
`aProduct package for Fluticasone
`Propionate Ointment.
`(c&w—o275)
`
`_
`
`'
`
`54
`
`28 '
`
`Product package for Ahti-Diarrheal-
`
`
`
`
`
`
`
`
`
`
`.14
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`.15
`
`16
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`17 Y
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`21
`
`22
`
`‘23
`
`24
`
`25
`
`
`
`
`
`Loperamide Hydrochloride Tablets
`
`(G&W—0274)-
`
`54
`
`[Product package for-Sani—Supp
`
`(G&W-0232)
`
`30
`
`Product package for Ultra Strength
`
`Pain Relieving Rub
`
`(G&w—0295)
`
`31
`
`'
`
`Copy of resume from R. Britting
`
`to R. Greenblatt
`
`(G&W-0379-383)
`
`(609) 989-9199
`4
`Guy J. Renzi & Associates
`www;renziassociates.com
`A
`
`
`
`‘E X H I B I T.S
`
`Page 7
`
`DESCRIPTION
`
`Round Table article entitled,
`
`"The Safety & Efficacy of
`
`Supfiository Use"
`
`.(G&W—0168—l75)
`
`G&W Sell Sheet
`
`(G&W-0165)
`
`Oppoeer's Suppiemental Response
`
`To Applicant's Interrogatories
`
`(Retained by Ms. Kameros)
`
`(609) 989-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`11
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`Page 8
`
`S-TE4PHE‘.N.
`
`c. GREENE,havingbeen
`
`
`
`J>b\JI\)
`
`'~O®\lO\
`
`io
`
`11
`
`12’
`
`13
`
`14
`
`'15
`
`.l6
`
`.1_7
`: 18.
`
`419
`I 20.
`
`21
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`
`-23
`
`-24.
`
`25
`
` V first duly sworn,
`testified as fiollows:
`EXAMINATION BY MS. KAMEROS:
`I
`Q."
`:Good morniug, as you know, my name is
`Samantha Kameros.
`Ilm with the law firm of
`lerner, David, Littenberg, Krumholz & Mentlik here
`in Westfield,
`flew Jersey. _I'm going to take.your'
`testimony_today, and I'd like to start, please, if
`you would state your name add address for the
`
`
`
`
`
`
`
`record.-t
`._Stephen C. Greene, business address
`‘A.
`.is.G&W Laboratories, Inc., 111 Coolidge Street,
`
`South Plainfield, New Jersey 07080.
`Q.
`'
`Are you employed, Mr. Greene?‘
`' A.
`.l am.
`I
`-
`
`'
`
`'0.
`A.
`Q.
`
`.
`
`V By'wHom are you emoloyed?
`G&W Laboratories.
`I
`» Is G&W Laboratories commonly referred
`
`to just as G&W?
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`A.
`
`"Q.
`
`.‘Very frequently.
`
`So if I refer to you or your company
`
`-_or G&W, you'll-know that I'm always talkifig.about'
`
`your company, G&W Laboratories?
`
`A..
`
`Yes.
`
`‘Q.
`
`Are you an officer of G&W?
`
`(609) 98§-9199
`Guy J. Renzi & Associates.
`www.renziassociates;com
`
`
`
`Page 9
`
`
`
`A.
`My title is vice president and
`
`
`general counsel.
`
`of corporate officer as well.
`
`Q.
`
`How long have you been employed by
`
`I have duties that include that
`
`
`¢&W?
`
`A.
`
`Since August 1993.
`
`
`
`What are your areas of responsibility
`
`
`Primarily, as general counsel,
`I
`
`provide legal advice to company executives.
`I
`
`
`
`
`also manage litigation.
`
`I handle a variety of
`
`legal matters in the substantive areas of
`commercial
`law, employment
`law, regulatory law,
`
`
`
`
`
`
`meaning FDA,
`
`intellectual property law and meet
`
`with outside counsel.
`
`
`
`Q.
`
`Are you intimately familiar with all
`
`
`
`of G&W's activities?
`
`A.
`
`I would say so.
`
`When was G&W founded?
`
`The company was founded in 1919.
`
`Q._
`
`By whom was the company founded?
`
`Carl Greenblatt and another gentleman
`
`
`
`
`by the name of Mr. Weiss, W-E—I—S-S.
`
`
`
`Q.
`
`Is that how the mark was selected?
`
`
`
`MR. LaLONE: Objection,
`foundation,
`
`Guy J. Renzi & Associates
`(609) 939-9199
`www-renziassociates.com
`
`\lO\U‘|
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`Page 10
`
`
`
`
`being an incompetent witness.
`I don't think you were around back in
`l919, were you, sir?
`i
`Q.’
`Does G&W own any trademarks?
`-A.
`. Yes.
`.
`What are those trademarks?
`
`We have registered marks for G&W and_
`
`for a logo, and we have unregistered trademarks,
`
`which preceded the registration for G&W, and for
`
`other trade names that we've used with Various
`
`products.
`
`‘Q.’
`
`'
`
`Do you know how those marks were
`
`selected?
`
`A.
`
`Well, G&W was selected from the first
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`Q.
`
`A Have you heard of a company called GW
`
` Pharma, Limited?
`
`"I've heard of GW Pharmaceuticals,
`
`Is that the company youfre opposing
`
`in this proceeding?
`
`Yes.
`A.
`
`
`Q.
`
`When did you become aware of that
`
`(609) 939-9199
`cu; J. Renii a Associates‘
`www.renziassociates.com
`
`
`
`letters of Mr. Greenblatt and Mr. Weiss.
`
`MR: LaLONE: Again, objection,
`
`foundation.
`
`.:>wN
`\lO\U'|
`
`Q
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`Page 11
`
`
`
`Q.
`
`What were the circumstances?
`
` A.
`I was reading an article in the New
`York Times about a conference at the University of
`
`company?
`
` A.
`
`In April of 2000.
`
`Iowa on medicinal marifiuana that was sponsored by
`the University of Iowa and GW Pharmaceuticals was
`mentioned in the article as a participant, and
`
`specifically a Dr. Guy who was a founder of GW
`Pharmaceuticals was quoted in the article.
`1
`IQ.
`Did you take any action with respect
`
`to this company?
`
`took action by contacting
`I
`Yes.
`A.
`outside intellectual property counsel, because I
`
`
`
`
`
`
`
`was immediately concerned with the possibility of
`confusion between GW Pharmaceuticals and G&W. And
`
`
`
`
`
`
`
`
`I gathered from the information I read in the
`
`article that there were plans to ultimately do
`
`
`
`business in the United States;
`
`that is to say, GW
`
`
`
`
`
`
`
`
`Pharmaceuticals indicated they had plans to do
`
`clinicals and market a drug with a synthetic
`
`derivative of marijuana in the United States.
`
`So
`
`I contacted outside counsel
`
`to get advice.
`
`
`
`Did anything happen next?
`
`
`
`A.
`
`Yes. After discussing the matter
`
`
`
`(609) 989-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`vb-U.Jl\)
`G)\1G\U1
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`
`
`Bage 12
`
`
`
`with outside counsel, specifically Arnold
`
`Krumholz, --
`.
`Q.
`
`I just want to caution you not
`
`to
`
`reveal any of the substances of those
`.communications, but you can tell me what you did.
`hi
`Right, I understand and I appreciate
`that,
`
`"
`
`Mr. Krumholz wrote a letter to Dr.
`
`
`
`
`
`
`
`-Guy in early June of 2000, putting GW
`Pharmaceuticals on notice that G&W had prior
`rights to the mark ¢&W_and the logo that we also
`
`
`
`
`
`
`
`
`
`
`used for many years, and that based upon the
`
`preliminary information we had of his company,
`
`which wasn't much at the time, we wanted
`
`
`
`reassurances that they would not infringe our
`marks. And that letter did go out, as'I said,
`June of 2000:.
`l
`Did anything.come of that letter?
`
`
`
`
`
`
`
`in
`
`Yes.
`
`MR. LaLONE: Objection, vague.
`
`A.
`
`I.think I understand your question
`
`and the answer is that a woman responded who wrote
`
`back on GW Pharmaceuticals letterhead saying that
`
`
`
`she was a lawyer and medical counsel
`
`to the
`
`
`
`company, and I think her name was Alice Meade, and
`
`(609) 989-9199
`Guy J; Renzi & Associates
`www.renziassociates.com
`
`
`
`
`
`1
`
`2
`3
`
`4
`5
`6
`7,
`8
`
`'9
`10
`11
`
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`
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`
`14
`
`15
`16
`17:
`'18.
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`22
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`
`24
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`25
`
`
`
`Page 13
`
`ul>(.sJl\)
`"mm4mm
`
`10
`
`ll
`
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`
`is
`
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`she asserted that there was no conflict between
`
`the marks of G&W and GW Pharmaceuticals. And that
`
`was essentially the substance of her reply.
`
`Q.
`
`Did you take any other action?
`
`A.
`Well, we did. We
`took several steps.
`We followed up by writing back to Ms. Meade
`contesting her position, and we also embarked upon
`
`the registration of the Gew mark and the G&W logo,
`and ultimately that was granted by the USPTO.
`
`Q.
`
`At that time, did you investigate
`
`whether GW Pharmaceuticals was doing any business
`
`in the United States?
`
`A.
`
`I did.
`
`I did an internet search, and
`
`at the time I
`
`think they were featured under'a web
`
`address that was something to the effect of
`
`cannabismedicine.org. Later they appeared under a
`
`gwpharmaceuticals.com address,
`
`I believe, but by
`
`virtue of that search, searches,
`
`I
`
`learned that
`
`they were involved in growing and developing
`
`different cannabinoid herbs under secret
`
`Conditions in the UK for synthesizing active
`
`pharmaceutical ingredients for developing drugs
`
`for clinical trials in various therapies.
`
`I also
`
`learned that they had plans to pursue drug
`
`development and marketing, not only in the UK, but
`
`(609) 989-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`
`
`Page 14
`
`in the EU,
`
`the European Union, and in North
`
`America, meaning the United States and Canada,
`
`so
`
`'I grew more concerned about their plans and the
`
`.possibility of mark infringement,
`
`trademark
`
`‘ infringement, and confusion in the marketplace.
`
`Q.
`
`At a later time, did you become aware
`
`that GW Pharma had some activity in the U.S.?
`
`A.
`
`7
`
`GW Pharmaceuticals did have a posting
`
`-on their website,
`
`the exact time escapes me,
`
`perhaps it was later than 2003, but not later than
`
`2005, where they announced that they had
`
`communicated with the FDA,
`
`the Food and Drug
`
`‘Administration in the United States, and sought
`
`permission to conduct clinical trials with their
`
`drug, which I
`think is called Savitex,
`S-A—V?IeT—E-X. And they announced further that
`they received some approval
`to conduct
`the trials,
`and I think trials began at sometime maybe in
`2007,
`this year,
`I'm not sure.
`
`Q.
`
`Did you become aware at any time that
`
`they had filed a trademark application with the
`
`'USPTO?
`
`A.
`
`Oh,
`
`I did learn about that also in
`
`conjunction with our work with outside IP counsel,
`
`so we were aware that they did file for a
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`(609) 9e9—91§9
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`
`
`registration for GW Pharmaceuticals or some
`
`variation of that.
`
`Q.
`And did you take action with regard
`to that trademark application?
`2
`
`A.
`
`We did. We instructed outside
`
`counsel
`
`to file opposition in the appropriate
`
`administrative office of the USPTO.
`
`Q.
`
`And is it your understanding that
`
`it's that proceeding in which you're giving
`
`testimony today?
`
`‘A.
`
`That proceeding was filed and it's
`
`now pending and I'm now giving testimony in that
`
`proceeding.
`
`please.
`
`“Ms. KAMEROS:
`
`I'd iike to mark that,-
`
`MR. LaLONE: Exhibit No. 1?
`
`MS. KAMEROS: Yes.
`
`‘(Exhibit 1 was received and marked.
`
`for identification.)
`
`Q.
`
`Mr. Greene, have you seen what the
`
`court reporter has marked as Exhibit
`
`1 and handed
`
`to you before?
`
`A.
`
`Q.
`
`Yes,
`
`I have.
`
`What is it?
`
`It appears to be a photocopy of the
`
`(609) 989-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
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`Page 16
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`
`
`
`'G&W, my company, registered in June, on June 11,
`2002.
`
`Q.
`
`Were you involved with filing the
`
`United States Patent and Trademark Office,
`
`Trademark, Service Mark, Principal Registration of
`
`application that matured into this registration?
`
`A.
`
`Yes,
`
`I was involved.
`
`
`
`How long has G&W been using this
`
`
`
`
`
`~MR. LaLONE: Objection, foundation,
`
`
`
`
`
`
`
`calls for speculation as well.
`
`A.
`
`Well, based upon my knowledge of the
`
`
`
`
`company's records and history as outside counsel
`to the Company and inhouse counsel,
`I know it's
`
`been in business since 1919.
`
`It was formed as.G&W
`
`in 1919, and I know from regular and frequent
`
`
`
`
`
`
`
`communications with the founderfs son and
`
`grandson,
`
`that it has been using G&W since its
`
`founding.
`
`"MR. LaLONEi Objection.
`
`The
`
`
`
`
`
`
`
`22
`
`23
`
`24.
`
`25
`
`
`9 additional objection is to that whole line of
`
`
`
`questioning on the grounds of, it's a narrative
`
`and it calls for hearsay.
`
`Q.
`
`'
`
`What is the date of first use listed
`
`
`
`
`
`in that registration?
`fl . . .
`..
`
`(609) 989-9199
`
`Guy J. Renzi E Associates
`qwww;renziassociates.com
`
`
`
`Page 17
`
`A.’
`
`Q.
`
`It indicates 1919.
`
`Has your company used this mark in
`
`Interstate Commerce continuously since 1919?
`MR. LaLONE: Objection, calls for a
`guestion this witness is clearly not competent to"
`
`testify about, speculation.
`
`A.
`
`It does ?— it_has. We've been using
`
`the mark since 1919 on topical products,
`
`‘pharmaceuticals, and it's been.in continuous and
`
`exclusive use since that time.
`
`MR. LaLONE: Further additional
`
`objections on the ground it lacks foundation.
`
`Q.
`
`At
`
`the time that this application was
`
`5filed, were you using the mark G&W in Interstate
`
`Commerce for all of the goods listed in the
`
`registration?
`MR. LaLONE: _Again, objection on the
`
`grounds of foundation.
`
`A.
`
`Yes. We've been using the mark G&W
`
`for these listed goods in United States Interstate
`
`Commerce.
`
`(Exhibit 2 was received and marked
`
`for identification.)
`
`Q.
`
`Have you seen what the court reporter
`
`has marked as Exhibit 2 before?
`
`(609) 989-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`
`
`u>Udl\))-‘
`s4mm
`
`Page 18
`
`A.
`
`Q.
`
`A-
`
`I have.
`
`What is it?
`
`It's a photocopy of a United States
`
`Patent and Trademark Office, Trademark, Service
`
`V Mark, Principal Registration of the G&W logo,
`
`registered August 13, 2002.
`
`Were you involved with the filing:of.
`Q.
`the application that matured into this
`registration?
`2
`
`.10
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`11
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`12
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`'23
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`24.
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`25
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`A.
`
`A
`
`.
`
`I was.
`
`_How long has your company been using
`Q.
`the mark shown in Exhibit 2?
`A
`2
`W
`
`MR. LaLONE: Again, objection,
`similar basis as before,
`lacks foundation,-calls
`
`for hearsay and the witness has no personal-
`knowledge.
`.
`i
`A.
`.I!ve seen the use of the logo'since
`I've been general counsel beginning in 1993.
`I
`
`was outside counsel for the firm since the early
`
`80s, and this was,
`
`I believe,
`
`in use since about
`
`1981;
`
`I know the man that created it and I've
`
`seen it on all of our products, our.letterhead,
`
`our advertisements, 50...
`
`Q.
`
`Has this G&W design mark been used in
`
`Interstate Commerce continuously since 1981?
`
`(609) 989-9199
`Guy J. Renzi & Associates
`www;renziassociates.com
`
`
`
`MR. LaLONE:
`
`Same objections as
`
`before,
`
`lacks foundation, no personal knowledge,
`
`calls for speculation as well.
`
`A.
`
`Q.
`
`Yes, it has.
`
`.
`
`In the course of using this mark
`
`continuously since 1981, what
`
`types of products
`
`have you sold under the G§W design mark?
`MR. LaLONE:
`Same objection as
`
`before,
`
`the witness lacks foundation, has no
`
`personal knowledge, calls for speculation, and
`
`hearsay.
`
`A.
`
`I
`
`The types of products,
`
`in terms of
`
`dosage forms,
`
`I can answer as follows,
`
`‘suppositories, as a dosage form,
`
`tablets,
`
`topicals, meaning creams, ointments,
`
`lotions,
`
`gels,
`
`liquids, pads in liquids, and more recently,
`
`nasal sprays.
`As far as beyond dosage forms,
`
`types
`
`of therapeutic purposes,
`
`I can expand on that if
`
`that's part of your question.
`
`Q.
`
`We can hold off on that and talk
`
`about that a little bit more in a bit.
`
`Mr. Greene, you said that you were
`
`involved in filing the applications that matured
`
`into the registrations that are Exhibit 1 and
`
`s1>L4Jl’\)
`CD~I6\U'I
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`.10
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`11
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`12'
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`25
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`(609) 989-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`
`
`Exhibit 2.
`
`Did you supply your outside counsel
`
`with the dates of first use listed in each‘
`
`application?
`
`A.
`Q.
`
`A.
`
`I did.
`Yes,
`. Where did you get that information?
`
`Well,
`
`I got
`
`the information,‘
`
`from personal knowledge, as well as
`certainly,
`collective knowledge of the company's management,
`having knowledge of its history.
`As
`I said, I met
`
`the founder of the company who was alive when-I-
`
`was outside counsel and I
`
`learned from him that
`
`they founded the company in 1919. And I've been a
`part of the company's business activities since
`
`the early '80s, as I said, as outside counsel, and
`in 1993 I
`joined as inside counsel.
`So from those
`
`various sources I've learned that these types of
`drugs have been used with these marks for that
`
`period of time.
`
`MR. LaLONEfi
`
`‘Move to strike the
`
`answer on the grounds that hearsay was given.
`A»Q.
`What is the geographic scope of G&W's
`
`sales of its products?
`
`MR. LaDONE: Objection,
`
`relevancy, as
`
`well_as this witness has no personal knowledge, no
`
`(609) 989—9199
`Guy J. Renzi & Associates
`‘
`www.renziassociates.com
`
`is
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`16
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`i7
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`18
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`19
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`21
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`22
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`-23
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`24
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`25
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`
`
`foundation.
`
`A.
`
`We sell throughout
`
`the United States.
`
`We have national distribution in all 50 states, as
`
`well as in Puerto Rico and some of the US
`
`possessions. We also sell in Canada and some of-
`
`the former states of the Soviet Union, which are
`
`now known as Russia, and I guess the Ukraine. And
`
`there have been other international sales on an
`
`isolated basis.
`
`Q.
`
`I know you just answered, but I'm
`
`Agoing to ask the question that will probably cone
`
`up again to see if Mr. LaLone will not object to
`
`my question.
`
`Does G&W sell the products that you
`
`previously listed?
`
`A.
`
`Yes.
`
`Q.
`
`'
`
`Where does G&W sell those products?
`
`A.
`
`We sell them, geographically,
`
`in the
`
`United States, Canada, I'll say Eastern Europe to
`
`refer to, say, Russia,
`
`the Ukraine, Puerto Rico,
`
`Jamaica, and a few other places.
`
`Q.
`
`Does G&W sell its products throughout
`
`the United States?
`
`MR. LaLONE: Objection,
`
`foundation.
`
`Oh, definitely.
`
`(609) 989-9199
`Guy J, Renzi & Associates
`www.renziassociates.com
`
`
`
`Page 22
`
`_
`
`-
`
`MS. KAMEROS:
`
`I'd like to designate
`
`the next
`
`few sections of the transcript Highly-
`
`Confidential Attorneys’ Eyes Only, it contains
`
`commercially sensitive information;
`
`MR. LaLONE:
`
`I believe there's a
`
`protective order in place.
`
`MS. KAMEROS: Xes.
`
`Does G&W hays any plans to add to
`Q.
`their product line?
`.
`
`1
`
`2 3
`
`4
`
`5_
`
`6
`
`7
`
`8
`9
`
`A.
`"Q.
`
`Definitely.
`10
`What is the nature of those plans?
`11
`You don't have to cive me specific
`v
`12
`names, but just areas that you're headino into.
`13
`V A.
`4
`We have plans to increase our.
`_l4
`presence in dermatologicals,
`topicals.
`To pursue
`'15
`areas of nasal sprays for various therapeutic
`16
`17 : purposes, different disease conditions and
`18
`treatments.
`To pursue solutions,
`liquids, again,
`
`19
`
`20
`
`21
`
`22
`
`with various applications.
`
`To pursue different
`
`women's products, and, of course,
`
`to remain a
`
`leader in the suppository dosage form, which will
`
`have both prescription therapies‘and OTC therapies
`
`"23
`
`in mind.
`
`24
`
`25
`
`‘
`
`-
`
`_ We've had Contact with research
`
`universities in Germany, Israel and certainly the
`
`(609) 989-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`
`
`h
`
`'
`
`.
`
`I
`
`Page 23
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`-1
`. 2
`
`United States about evolving technologies using
`our delivery systems, whether they're topical or
`
`3
`
`4
`
`5
`
`vaginal or rectal, for new medications, and to
`
`continue to pursue various generic medications,
`
`again,
`
`for a variety of treatments and therapies.
`
`6'
`
`.
`
`Ms, KAMEROS:.
`
`I'd like to mark this‘
`
`7
`
`as Exhibit 3;
`
`‘8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`. 14
`
`(Exhibit 3 was received and marked
`
`for identification.)
`
`_
`
`_
`
`MR. LaLONE:: We object to Exhibit 3
`
`and the production of any new documents.
`
`Discovery has closed a long time ago. Opposing
`
`counsel has been on notice several
`
`times to
`
`produce documents.
`
`They have not produced
`
`15
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`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`documents of this sort, it's too late.
`
`I object
`
`to any line of testimony regarding Exhibit 3
`
`whatsoever, it's too late.
`
`A
`
`'
`
`MS. KAMEROS: Exhibit
`
`3 is not a new
`
`document. This document is a written summary of
`
`information contained in the interrogatory
`
`responses that we've provided to you.
`
`It's more
`
`of a reference for the witness so that these
`
`tigures, which you'll notice are very specific,
`
`can be accurately testified to.
`
`. 25
`
`MR. LaLONE:
`
`I totally disagree with
`
`(609) 989-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`
`
`Page 24
`
`that.
`
`
`
`recently as this morning, and through every one of
`your documents, and if you can point to which Gaw
`document you've produced that's responsive and
`
`looks like Exhibit 3, I'll be happy to reconsider
`
`I've looked at the interrogatories as
`
`
`
`
`
`
`
`
`the objection.
`to a_place in_
`i
`Can you point, counsel,
`your documents where you've produced this already?
`
`
`
`MS. KAMEROS:
`
`It's in the
`
` interrogatory responses.
`
`
`MR. LaLONE:
`
`In which interrogatory
`
`set, please?
`
`
`
`
`
`(Discussion off the record.)
`
`MR. LaLONE:
`
`I don't have the.
`
`document that opposing counsel is referring to at
`this point. Nonetheless, we still object to
`production of-any new documents, and Exhibit i,
`indeed,
`is a new document,
`so note the objection.
`You may proceed.
`.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`BY MS. KAMEROS:
`
`Q.
`
`Mr. Greene, can you testify to the
`
`sales revenue of G&W without
`
`looking at Exhibit 3?
`
`A.
`
`Yes,
`
`I can.
`
`Q.
`
`
`Would you feel-more_comfortable if
`
`you could look at it ~~ well, first of all, what
`
`(609) 989*9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`I-‘
`
`u>LA)f\>
`(3101
`
`x]
`
`10
`
`11
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`12
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`is
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`24
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`25
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`
`
`Page_25
`
`
`
`is Exhibit 3?
`
`
`
`A.
`
`Exhibit 3 is a oompilation prepared
`
`by the-G&W controller of sales for the yeats'2000
`
`through 2006 and promotional expenses ~e
`
`promotional and advertising expenses for the years
`
`2009 through 2006;
`
`I object on the grounds
`MR. LaLONE:
`of hearsay and lack of foundation;
`
`Q.
`
`Mr; Greene, can you tell me what the
`
`annual sales of C&W were for 2006? :-
`
`
`
`
`
`
`
`A.
`
`
`
`
`1‘ ’
`" ”
`
`5.
`
`
`
`Q.
`
`Do you know what
`
`the sales were for
`
`the year before that?
`
`A.
`
`Do you have personal knowledge of
`Q.
` that, aside from the document that is Exhibit 3?
`
`
`(609) 989-9199
`Guy J. Renzi & Associates
`wwu . rnnziassnciates - com
`
`am‘NH
`'m-m.4m‘m
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`10 ‘
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`ll
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`12.
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`Page 26
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`b
`
`.
`
`.
`
`i
`
`-‘
`
`l
`
`A.
`
`1.“ Yeah._ I'm provided with routine
`
`2 "records on how we are-doing on a monthly and
`
`3
`4
`
`.annualized basis,
`~the company.
`
`so I track that with others in’
`
`MR. LaLQNE: Renewed objection on the
`5
`grounds of hearsay to any of these questions, as
`6‘
`T~..well.as-the witness is referencing an exhibit that
`8.
`has not been produced and will be excluded from
`Id
`Fthis ease.
`_
`L0
`-
`MS. KAMEROS:. We can go back to
`
`Z
`
`L1
`
`12
`
`13
`
`14
`lS_
`16
`17
`
`'
`
`V
`
`_
`
`nonconfidential designation.
`
`.
`
`Q.
`
`‘
`
`Mr. Greene, does G&W advertise its
`
`‘products?
`
`'
`
`I
`
`.
`
`.
`
`.
`.
`.
`
`..MR. LaLONE: Objection, foundation.‘
`We do.~‘
`‘
`'
`How do you advertise your products?
`in several ways. We are on the
`'
`
`-
`
`18% internet. We advertise in trade_magazines.‘ We
`19.
`advertise in directories,
`trade directories. We
`20
`advertise when we participate at trade shows
`
`21 ' organized by industry associations or at customer
`
`shows.
`22
`23‘. product
`
`We distribute_literature, sales sheets,
`information at all of those events. Wefve
`
`24
`
`advertised in journals as well. We've done-direct
`
`25 mailings to targeted audiences, and by that I mean
`
`(609)'9B9-9199
`Guy J, kenzi 5 Associates
`www.renziassociates.com
`
`
`
`Page 27
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`managed care organizations, wholesalers,
`
`distributors, drug chains,
`
`food chains, hospital
`
`organizations, other health care organizations
`
`such as nursing homes, hospices.
`
`Q.
`
`What do those direct mailings consist
`
`A.
`
`‘
`
`MR._LaLONE: Objection,
`foundation.
`I call them sales sheets, and they're
`
`simply colored sheets identifying the product or a
`
`O\U1nI>-b.Jl'\-‘I
`\DCD\1
`
`10_
`
`family of products with relevant information of
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`11
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`the drug's purpose or its size or its NDC numbers
`
`for the specific audience, be it pharmacists or
`
`buyers in the various channels of commerce.
`Q.
`What do you mean by channels of
`
`commerce?
`
`A.
`
`Channels of commerce would be those
`
`intermediaries after manufacture, before the
`
`patient.
`So by that I mean, wholesalers who buy
`from G&W and then sell to pharmacies or drug
`
`chains or hospitals. Besides wholesalers,
`there
`are distributors, which is a different nuance, but
`
`a distinction that's important
`
`to know, directly
`
`to drug chains.
`
`The national chains,
`
`in
`
`particular, often buy directly from us, and
`
`25“
`
`national and regional
`
`food chains, group
`
`(609) 989-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`
`
` purchasing organizations.
`
`
`
`by groups of members,
`93 3-3-5‘:
`mam BER
`or they're neutrai pharmacies or affiliated health
`
`GPOS are consolidated
`
`either they're distributors
`
`
`
`
`
`-leadihg, and calls for hearsay.
`
`A.
`
`--
`
`-Yes, we try to cover or otherwise
`
`blanket all of those types of businesses to make
`
`them aware of our products so they buy our
`
`
`
` product.
`
`Q.
`How does your product ultimately get
`
`to the market?
`
`MR. LaLONE: Objection, vague,
`
`lacks
`
`foundation.
`
`
`
`
`
`
`
`
`
` Q.
`
`Who are the users of the products
`
`that you sell?
`
`Q. Strike that.
`
`A.
`
`Okay.
`
`
`
`A.
`
`Well,
`
`the users will be in the end,
`
`
`
`
`
`ultimately,
`
`the patient.
`
`The buyers,
`
`the people
`
`or the organizations that get it to the patient,
`
`are the wholesalers, such as McKesson, Cardinal
`
`
`
`fiuy 3. Renzi & Associates
`(609) 989-9199
`www.tenziassociates.com
`
`
`
`care organizations,
`
`so those are what
`
`I consider
`
`to be channels of commerce.
`
`Q.
`
`' Are those all entities that you
`
`direct your advertising to?
`
`MR. LaLONE: Objection,
`
`foundation,
`
`
`
`
`
`(.0
`
`\om~.lmLn&>
`
`10
`
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`'13.
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`23
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`24
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`25
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`
`
`Drug, Amerisource Bergen.
`
`
`They are the three
` largest drug wholesalers in the United States.
`
`Page 2§
`
`
`
`They probably account for 85 percent of all
`
`wholesale business in the United States. Drug
`
`chains,
`
`food chains and all of the names that Ifm
`
`sure all of us are aware of, Walgreens, Rite Aid,
`
`CVS.
`
`Q.
`
`Can you explain in a little more
`
`
`
`
`
`
`detail how you get your products —~ how you sell
`your products?
`A
`l
`foundation.
`objection,
`'
`MR. LaLONE:
`When you refer to you, are you referring to .
`
`Mr; Greene as an individual or the_company?
`
`MS. KAMEROS:
`
`The company, which I
`
` think I stated already.
`
`
`We have a sales force. We have
`
`A.
`
`
`
`
`
`
`
`
`
`
`
`
`national account managers who cover regions of the_
`
`
`country, as well as different types of trades,
`
`so
`
`they cover either the GPO market or the managed
`
`care market.
`
`
`
`
`Q.
`
`What is the GPO market?
`
`GPO is a group purchasing
`
` A.
`
`
`organization.
`It consists of members that buy
`
`collectively in order to get favorable pricing,
` the members could include distributors or the
`
`so
`
`(609) 989-9199
`‘Guy J. Renzi 8 Associates
`www.renziassociates.com
`
`»b(.AJf\.7}-'
`
`19
`
`2o
`
`21
`
`22
`
`23
`
`24
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`25
`
`
`
`
`
`
`
`.s\\°>\D7
`
`?age 30
`_
`WK3flEflXL2
`aeutrai pharmacies, it could include hospitals.
`
`
`
`We have sales representatives who cover
`
`‘wholesalers,
`
`the Cardinal account,
`
`the McKesson
`
`
`
` account. We have sales representatives who cover
`
`
`
`
`' the food chains,
`
`the drug chains. Many food
`
`chains not only sell OTC drugs, but prescription
`
`drugs. We have sales representatives who cover
`
`mass merchandisers.
`
`I'm sure you've heard of
`
`they have a huge pharmacy
`
`
`
`-Wal—Mart, well,
`
`
`business.
`
`
`
`_We sell to the Government, and we have
`
`go..oo~I'd\‘-.17
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`10
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`18.
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`24,
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`25
`
`specific sales representatives assigned to that
`
`dedicated task, and that's huge also,
`
`the Veterans
`
`Administration,
`
`the Army,
`
`the Armed Services.
`
`So
`
`we have people who,
`
`in effect, detail the
`
`
`
`the drug.and
`
`pharmaceutical marketplace. They're not
`
`necessarily calling on doctors per se, prescribing
`
`doctors, but on the organizations or institutions
`
`that pull and push the drug through the chain from
`
`manufacture ultimately to the shelf at the
`
`
`
`
` intermediaries in the marketplace,
`
`
`
`
` pharmacy or to the pharmacist who dispenses to the
` consumer or the patient.
`
`specific medical professionals? Oh, yes, we doc
`
`Q.
`
`Do you direct any advertising towards
`
`‘We've advertised in
`
`Guy J. Renzi 5 Associates
`_www.renziassociatesecom
`
`($09) 989-9199
`
`
`
`Page 31‘
`
`
`
`
`US Pharmacist. We've advertised in Chain Drug
`
`
`
`
`which is another trade publication. We've
`
`advertised in Private Label Magazine, which is the
`
`Review. We've advertised in Contract Pharma,
`
`, private label organization's trade publication.
`We're on the internet.
`
`
`
`
`
`
`
`Q.
`
`Do you ever send material directly to
`
`medical professionals?
`
`
`
`lacks
`
`MR. LaLoNE:f Objection,
`
`
`
`
`foundation.
`
`
`
`
`A.
`We have. We've endeavored from time
`
`to time to stimulate or remind specific types of
`
`
`
`the existence of our product,
`medical groups about
`where it might have a relevancy for their practice
`
`
`
`
`
`
`
`
`
`The black and white,
`
`bunch of documents.
`
`in either, let's say, pain management or migraine
`
`treatments or other kinds of therapies.
`
`MS. KAMEROS:
`
`I'm going to mark a
`
`I have
`
`additional copies,
`
`if you want
`
`them, but
`
`the color
`
`ones,
`
`I don't have colored copies, but they're all
`
`
`
`Bates numbered from what we previously sent to
`
`
`
` you.
`
`
`
`
`
`I know that you have the whole ~~
`
`MR. LaLONE:
`
`I
`
`have the whole
`
`collection here, so...
`
`
`
` MS. KAMEROS: That's why I'm asking
`
`(609) 999-9199
`Guy J. Renzi & Associates
`www.renziassociates.com
`
`LaJI\)|-'
`®LJ1vb
`
`\]
`
`19
`
`20
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`21
`
`22
`
`23'
`
`24
`
`25
`
`
`
`
`
`I don't need a color
`MR} LaLQNE:
`4
`"copy, but if you have a black and white to'work
`
`if you want additional copies.
`
`
`
`.from,
`
`that would be great.
`
`through 8 were received
`(Exhibits 4
`and marked for identification.)
`
`
`
`The court reporter has just handed
`.
`‘Q.
`you what's been marked as Exhibit 4.
`Mr. Greene, have you seen this
`
`
`
`‘Yes,
`
`I hav
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