Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA166558
`ESTTA Tracking number:
`10/03/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91173447
`Plaintiff
`Nexus Financial Group
`Albert M. Pearson
`Moraitakis, Kushel, Pearson & Gardner
`3445 Peachtree Road Suite 425
`Atlanta, GA 30326
`UNITED STATES
`apearson@mkpglaw.com
`Reply in Support of Motion
`Albert M. Pearson, III
`apearson@mkpglaw.com
`/Albert M. Pearson, III/
`10/03/2007
`10-3-07_RplyBrf_MtnCompel - Real Estate Nexus.pdf ( 21 pages )(62039 bytes
`
`)A
`
`ffidavit Arno Naeckel - Real Estate Nexus.pdf ( 4 pages )(215380 bytes )
`Motion to Compel Exhibits.pdf ( 10 pages )(870333 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`NEXUS FINANCIAL GROUP, INC.,
`
`V.
`
`Opposer,
`
`REAL ESTATE NEXUS, LTD.,
`
`Applicant.
`
`\_/\_/\_/\_/\_/\_/\_/\_/
`
`Serial No. 78/782,972
`Mark: REAL ESTATE NEXUS
`
`OPPOSITION NO.: 91173447
`
`Opposer’s Reply Brief in Support
`of Motion to Compel Discovery
`and for Sanctions
`
`Opposer Nexus Financial Group, Inc. (“Nexus”) respectfully offers this Memorandum of
`
`Law in support of the Opposer’s Motion to Compel Discovery and for Sanctions.
`
`INTRODUCTION
`
`Nexus filed its only set of interrogatories on February 21, 2007 after responding fully to
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`Applicant’s discovery on January 19, 2007 Applicant’s response was due on March 23, 2007.
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`Despite several phone calls to Applicant’s counsel, Applicant did not respond. Negotiations to
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`secure discovery were unsuccessful. On May 21, 2007 the discovery period was extended until
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`August 31, 2007 with the expectation that fully responsive answers and documents would be
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`provided on a timely basis.
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`After a further three week delay, Applicant served their responses on Nexus on June 14,
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`2007. No supplementary disclosures were forthcoming thereafter despite material developments
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`of the Applicant. On or about August 29, 2007, an associate of lead counsel Albert Pearson, Ted
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`Naeckel, contacted Benjamin Court to follow up on the conversation between Court and Pearson
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`concerning the adequacy of the June 14, 2007 discovery.
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`Mr. Court conveyed to Mr. Naeckel that he had not consulted with his client and would
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`do so only upon receiving a written request. Mr. Court then stated that a filing of a motion for
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`

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`summary judgment on behalf of his client was imminent. Taking Mr. Court’s statement as a
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`refusal to supplement or to extend the discovery period which was to lapse in two days, Nexus
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`filed its Motion to Compel.
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`FACTS
`
`Michael and Brian Peart are the registered owners of the mark NEXUS FINANCIAL
`
`GROUP. (Exhibit A). They are the majority owners of Nexus Financial Group, Inc., a
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`corporation through which they market mortgage lending services nationwide using the NEXUS
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`FINANCIAL GROUP mark. The NEXUS FINANCIAL GROUP mark is registered in
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`classification IC 036 for goods and services of “mortgage financing brokerage services, directed
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`to the home buyer’s market.” First use in commerce occurred on October 1, 1995. The mark
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`was registered on September 10, 2002. (Exhibit B).
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`Nexus is an independent mortgage broker licensed to originate residential mortgages in
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`Florida, Georgia and Idaho and has been in continuous operation originating residential
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`mortgages since at least 1995, (Notice of Opposition ‘J1 6). The mortgages that Nexus originates
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`are table funded to financiers with nationwide operations. In 2002, Nexus began originating
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`commercial mortgages nationally as a natural expansion of its core residential business.
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`Nexus originates its business primarily over the intemet, by word of mouth and through
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`direct solicitation of both new and repeat business. Since 1995, Nexus has over $1,350,000
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`invested (Exhibit C) in building its reputation and market position as one of the largest
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`independent mortgage originators in its markets. The mortgage market is a highly fragmented
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`market. In absolute terms, Nexus is a small company with annual revenues of about $2 million.
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`Brian Peart is a well known figure amongst a large percentage of residential mortgage
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`brokers nationwide by virtue of his annual broker seminars which have been held in Florida,
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`Georgia, California, Illinois, Washington, Arizona and Maryland. As additional lines of revenue
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`generating business, Nexus also possesses a robust list of nationwide subscribers to Brian’s
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`internet magazine, to his “Ask Brian Peart” Web Site and to his “Top Producer” magazine, all of
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`which are issued under the NEXUS FINANCIAL GROUP mark. In short, Nexus’ entire
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`business relies upon maintaining its positive market reputation on a nationwide basis. Given the
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`current turmoil in the residential mortgage market, maintaining a distinct and untarnished
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`reputation is a matter of survival for Nexus.
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`On February 1, 2006, Real Estate Nexus (the “Applicant”) submitted an application to
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`register the word mark REAL ESTATE NEXUS under classification IC 036 for goods and
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`services of “[r]eal estate agencies”. The application was published for opposition on August 22,
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`2006. (Exhibit G).
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`The Applicant is also in the business of rendering mortgage lending services. (Exhibit D).
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`Having a competing mortgage originator marketing itself under the mark REAL ESTATE
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`NEXUS creates the likelihood of source confusion between REAL ESTATE NEXUS and
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`NEXUS FINANCIAL GROUP. It also creates the appearance that Nexus has approved of, or is
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`otherwise connected with, the REAL ESTATE NEXUS mark. Should NEXUS FINANCIAL
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`GROUP be confused in the marketplace with REAL ESTATE NEXUS, any negative linked to
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`REAL ESTATE NEXUS could damage Mr. Peart’s business.
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`Given Nexus’ long and nationwide participation amongst mortgage brokers, mortgage
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`financiers and mortgage customers, it is not unreasonable to be concerned that one or more
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`employees, agents, officers or contractors of the Applicant may have been a former Nexus
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`customer and as a result the Applicant has intentionally chosen the REAL ESTATE NEXUS
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`mark as a means to free ride on the goodwill of the NEXUS FINANCIAL GROUP mark to jump
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`start its entrance into the mortgage services market.
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`In response to the publication of the REAL ESTATE NEXUS mark, Brian Peart, through
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`Nexus, filed a formal opposition on November 2, 2006 after receiving an extension to oppose.
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`Nexus asserted that the registration of REAL ESTATE NEXUS would result in a likelihood of
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`confusion with the mark NEXUS FINANCIAL GROUP and/or that it would result in the
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`dilution of the NEXUS FINANCIAL GROUP mark. (Notice of Opposition). Applicant served
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`discovery requests including Interrogatories, Requests for Admissions and Requests for the
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`Production of Documents on Nexus promptly on or about November 28, 2006. By advance
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`agreement between the parties in light of the holidays, Nexus served its responses on January 19,
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`2007.
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`Nexus served its discovery requests on or about February 21, 2007. (Motion to Compel,
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`Attachments 5 and 6). As previously noted, Applicant did not respond at all within the 30 day
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`period or seek an extension of time. On or about May 21, Benjamin Court and Albert Pearson
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`finally had a phone conference. Court agreed to provide discovery as of June 14, 2007 and to
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`extend discovery until August 31, 2007. (Applicant’s Memorandum of Law in Opposition to
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`Opposer’s Motion to Compel Discovery and For Sanctions at ‘][7, hereinafter “Memorandum in
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`Opposition”). Applicant delayed the production of its discovery 90 days.
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`On or about June 14, 2007, Applicant served its discovery responses. Shortly thereafter
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`Pearson and Court had a telephone conversation discussing the Applicants’ discovery responses
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`in view of the requirements of Rule 26 of the Federal Rules of Civil Procedure (“FRCP”).
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`During the phone conversation Mr. Court made it apparent that the Applicant was inclined to not
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`cooperate in further discovery but that he would consult with his client. On August 30, 2007,
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`Ted Naeckel, an associate of Albert Pearson, made a phone call to Court in another attempt to
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`get cooperation from the Applicant concerning the adequacy of the discovery provided.
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`(Memorandum in Opposition at ‘][9). Mr. Court indicated that he would revisit their discovery
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`response with his client but only if Nexus put specific issues in writing and after summary
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`judgment was filed on behalf of the Applicant. This motion is the writing that Court sought.
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`LEGAL ARGUMENT
`
`l.
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`OPPOSER’S MOTION TO COMPEL CONFORMS TO TRADEMARK
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`RULE 2.120gegg1g AND SHOULD BE GRANTED.
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`Trademark Rule 2.l20(e)(l) provides that any motion to compel must be supported by a
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`written statement from the moving party that such party or the attorney has made a good faith
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`effort, by conference or correspondence, to resolve with the other party or the attorney, the issues
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`presented in the motion and has been unable to reach agreement. Nexus respectfully notes that
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`Trademark Rule 2. l20(e)(l) requires only a written statement and not a certification, affidavit or
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`other particular form of document. Such a statement was provided in Nexus’ Motion to Compel
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`and for Sanctions.
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`(Motion to Compel and for Sanctions, ‘J1 1)
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`Applicant proceeds to argue that in addition to Rule 2. l20(e)(l), the Federal Rules of
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`Civil Procedure apply and cites Fed. R. Civ.P. 37(a)(2)(A) which calls for a “certification”
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`instead of a “statement”. However, Nexus respectfully points out that the Federal Rules of Civil
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`Procedure apply “except as otherwise provided”. (Trademark Rule 2. l l6(a), 37 CFR §2.l l6(a)).
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`As such, a written statement is required rather that a certification as would be required under the
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`Federal Rules of Civil Procedure.
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`Further, Nexus respectfully points out that Trademark Rule 2. l20(e)(l) further allows
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`that such effort may be done by conference. Written correspondence is not necessary under Rule
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`2. l20(e)(l). To make an assertion that correspondence is required under the Rule 2. l20(e)(l)
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`would render the phrase “by conference” superfluous. Applicant has admitted that conferences
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`have occurred between the parties although the content of those conferences and the mention of
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`unreturned attempts at conferences have not. (Memorandum in Opposition, ‘M 7-8)
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`Nexus has met the standard for good faith effort in negotiating discovery issues.
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`Applicant cites Giant Food, Inc. V. Standard Terry Mills, 231 USPQ 626 (TTAB 1986) to
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`support its position. Giant concerned an opposition wherein cross motions to compel were filed
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`by both the opposer and the applicant. Applicant’s motion to compel was denied by the TTAB.
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`The TTAB’s reasoning was that the only communication concerning the discovery was a letter to
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`the opposer’s counsel merely characterizing the opposer’s responses as “non—responsive”.
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`(Giant at 964).
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`The opposer’s Motion to Compel a response to their first set of interrogatories and to
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`produce documents was granted. The TTAB noted that in a telephone conversation, the opposer
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`was advised that the applicant would not respond until such time as the opposer provided non-
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`evasive answers to applicant’s discovery requests. During the phone call, no mention was made
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`that the applicant had already filed a summary judgment days earlier.
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`Here, counsel for Nexus made a phone call attempting to negotiate our supplemental
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`discovery responses and was told that although a written request would be considered, it would
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`be considered only after an impending summary judgment motion was filed as the end of the
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`discovery period then only two days away. Given Applicant’s history of foot dragging in
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`responding to discovery, Nexus’ counsel acted in good faith by attempting to negotiate out
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`deficient discovery responses during the discovery period. As such, Nexus has shown the
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`requisite good faith just as the opposer did in Giant.
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`Furthermore, Applicant admits that Mr. Naeckel made a telephone call to Mr. Court on or
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`about August 29 to further enquire about obtaining full responses to Nexus’ discovery request.
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`However, Applicant made no mention of Mr. Court’s statement that they would consult further
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`with their client only upon a written request and after the filing of a summary judgment motion.
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`Such an offer was effectively no offer at all as any discovery thereafter may well have been
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`rendered moot.
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`2.
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`OPPOSER’S MOTION TO COMPEL SHOULD BE GRANTED AS APPLICANT
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`HAS BEEN UNREASONABLE IN RESPONDING TO OPPOSER’S DISCOVERY
`AND WHEN RESPONSIVE HAS PROVIDED EVASIVE RESPONSES TO
`DISCOVERY TAILORED TO PRODUCE EVIDENCE RELATIVE TO THE
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`LIKELIHOOD OF CONFUSION AND DILUTION.
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`Likelihood of confusion is a question of law based on findings of fact under the DuPont
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`factors. M2 Software Inc. v. M2 Communication Inc. 450 F.3d 1378 (Fed. Cir. 2006), Palm
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`Bay Imps. Inc. v. Vueve Clicguot Posardin, 396 F.3d 1369, 1371 (Fed. Cir 2005) (Citing In re
`
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`E.I. DuPont DeNemours & Co. 476 F.2d 1357 (1973)). Discovery aimed at establishing the
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`facts under any of the DuPont factors is relevant. One of the thirteen DuPont factors is actual
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`confusion. As such, discovery concerning the issue of intent to create confusion among marks in
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`order to free ride on another’s goodwill is also very relevant. See e. g. China Healthways
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`Institute, Inc. V. Wang, 491, F.3d 1337(Fed. Cir 2007).
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`In every case it is the duty of the board,
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`upon consideration of all the evidence, whether or not confusion appears likely. DuPont at 1362.
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`The scope of discovery under the Federal Rules of Civil Procedure to support a decision
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`on the DuPont factors is broad and allows for discovery regarding fly matter, not privileged, that
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`is relevant to a claim or defense that may be admissible at trial if the discovery appears
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`reasonably calculated to lead to the discovery of admissible evidence. See, Oppenheimer Fund,
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`Inc. v. Sanders, 437 U.S. 340; See also Fed.R.Civ.P. 26(b)(l). Opposer rejects Applicants
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`suggestion that discovery before the TTAB is somehow narrower in scope that under the Federal
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`Rules of Civil Procedure.1
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`Applicant claims that Nexus is attempting to compel discovery broader than actually
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`sought in their original discovery request. (Memorandum in Opposition, ‘J1 l8). Nexus
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`respectfully asserts that such is not the case. Nexus is merely requesting that the Applicant fully
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`answer a subset of the original questions as originally posed, with out reservation or obfuscation.
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`Generally, Applicant’s counsel objects to Nexus’ discovery as being irrelevant, overbroad
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`and complains that Nexus is engaged in a “fishing expedition” to harass the Applicant. I_d. In
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`light of the guidance provided by theM and Oppenheimer courts, Nexus respectfully
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`disagrees.
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`Nexus’ Interrogatories 2-4, 6, 8, l2, l5 and document requests 2 and 7 have each been
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`tailored to specifically address at least one theM factors as well as the issue of dilution.
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`Among others, relevant @1@ factors here include 1) the similarity and dissimilarity of the
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`marks, 2) the similarity or dissimilarity and nature of the goods or services as described in the
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`application, 3) the similarity or dissimilarity of established likely—to—continue trades channels,
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`the buyers to whom sales are made, 4) the nature and extent of and actual confusion (i.e. intent to
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`free ride) and 5) the extent of potential confusion. Applicant’s concerns will be addressed
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`seriatim below.
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`A. lnterrogatory No. 2
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`l3 USWPQ.2d 1696, for the proposition that the
`1 Applicant cites Micro Motion Inc. v. Kane Steel Co., 894 F.2d l3l8,
`substance of discovery before the TTAB is somehow more limited than that allowed by the Federal Rules of Civil Procedure in a
`way other than the time limitations.
`(See, Applicant’s Memorandum in Opposition, pg. 6). Trademark Rule 2.ll6(a) provides
`that the Rules of Civil Procedure apply unless otherwise provided in the Trademark rules. As the Trademark Rules do not further
`limit the scope of discovery from that of the Federal Rules of Civil Procedure, Rule 26 of the Federal rules is controlling.
`Further Micro Motions is a patent infringement case and has nothing to do with the substance or procedure in an action before the
`TTAB. Furthermore, Micro Motions is clearly distinguishable from the current motion as it concerns a discovery motion against
`a non—party. Opposer’s Motion to Compel is directed here at a party. Therefore, for the above reasons, Nexus’ right to
`discovery reaches to the limits provided for in the Federal Rules of Civil Procedure and is under no additional limitation.
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`

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`Please identify all affiliate
`entities of Applicant
`including but not limited to
`all subsidiaries, parent
`entities, joint venturers,
`partners, members, owners
`and shareholders from
`January 2002 to the date
`theses interrogatories are
`signed.
`
`Applicant objects to this
`Interrogatory on the basis
`that it is irrelevant,
`overbroad, and seeks
`information not reasonably
`calculated to lead to the
`discovery of admissible
`evidence. Subject to, and
`without waiving said
`objections, Applicant states
`see Answer to Interrogatory
`No. 3.
`
`It would be persuasive
`evidence of the likelihood
`of confusion if any business
`entity with the applicant or
`a principal—in— interest was
`or is a customer of the
`Opposer. Opposer is able to
`check its customer database
`against those individuals
`and corporate entities
`associated with the
`Applicant to determine
`intent to free ride on the
`
`NEXUS FINANCIAL
`GROUP mark.
`
`Varian Associates v. Fai1field—Nobel Corp., 188 U.S.P.Q. 581 (TTAB 1975) stands for
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`the proposition that the owners of a closely held, private corporation are irrelevant and not
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`discoverable in Board Proceedings. Nexus agrees that Varian has established that the extent of
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`ownership and the identity thereof is generally not discoverable. Real Estate Nexus, Ltd. is a
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`private closely held corporation. Information about the company, its structure and its principals-
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`in—interest will enable Nexus to determine whether any person or entity associated with the
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`Applicant has ever been a customer of Nexus, done business with Nexus or with Brian Peart. If
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`affiliates of the Applicant were, or are, former customers of Nexus, it would provide some
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`admissible evidence that the Applicant was aware of Nexus Financial Group, its business and its
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`reputation. It would further provide some admissible, if not persuasive evidence, of intent to
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`create source or approval confusion (i.e. free riding). As such, the holding in Varian is
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`distinguishable from the current situation. Nexus has no interest in actual corporate control
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`issues but does have in interest in determining that those associated with the Applicant (including
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`those obscured by corporate fictions) are not customers attempting to free ride.
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`

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`Further, Nexus is aware, and Applicant has been placed on Notice (Exhibits E & F ), that
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`Applicant is attempting to register REAL ESTATE NEXUS where the exact same word mark
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`has been used by a third party in commerce prior to the Applicant’s registration in violation of
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`Section 2(d). As such, the issue of actual confusion (i.e. free riding) here is more than a
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`theoretical concern as there appears to be a pattern of such behavior.
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`B. lnterrogatory No. 3
`
`Please identify all
`employees and officers
`employed by Real Estate
`Nexus, Ltd. and its affiliates
`
`form January 2002 to the
`present including full
`names, dates of
`
`employment, personal and
`business e—mail addresses,
`real estate license
`
`registration numbers
`(including the state of issue
`if not Minnesota) and
`
`mortgage broker license
`numbers (including state of
`issue if not issued in
`
`Minnesota).
`
`It would be persuasive
`evidence of the likelihood
`
`of confusion if any
`individual associated with
`
`the Applicant or a principal-
`in—interest was, or is, a
`
`customer of the Opposer.
`
`Opposer is able to check its
`customer database against
`those individuals and
`
`corporate entities associated
`with the Applicant to
`determine intent to create a
`
`likelihood of confusion
`
`and/or to free ride. On the
`
`NEXUS FINANCIAL
`
`GROUP mark.
`
`Offering up token
`individuals for possible
`deposition is insufficient to
`independently determine if
`anyone associated with the
`Applicant has been a
`customer of the Opposer.
`
`Applicant Objects to this
`lnterrogatory on the basis
`that it seeks information not
`
`relevant to the pleadings I
`this matter and seeks
`
`information seeks
`
`information not reasonably
`calculated to lead to the
`
`discovery of admissible
`evidence.
`
`Subject to, and without
`waiving said objections,
`Applicant states that Mr.
`Tom Jones and Mr. Cory
`Peterson are the Officers of
`
`Real Estate Nexus, Ltd.
`Their business e—mail
`
`addresses are
`
`Tom@therealestate
`
`nexus.com and Cory@the
`realestatenexus.com. No
`
`employee or officer of Real
`Estate Nexus. Ltd. has a
`
`mortgage brokerage license.
`Applicant objects to the
`remainder of this
`
`lnterrogatory on the basis
`that employee information
`relating to support and
`administrative staff is not
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`relevant and not at issue.
`
`10
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`

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`In its arguments against providing the discovery requested, Applicant admits purposely
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`limiting its response based on an assumption as to why Nexus has asked the question. Counsel
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`for the Applicant has either made the erroneous assumption that Nexus is looking to depose a
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`knowledgeable individual only about the choice of mark; or the Applicant is attempting to inflate
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`the costs of Nexus’ discovery by requiring Nexus to pay for a first set of depositions in
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`Minnesota just to determine which other associates of the Applicant may be subsequently
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`deposed to determine if they were ever a customer of Nexus. Such a tactic also has the effect of
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`walling off those individuals that may be willing to provide information favorable to the Opposer
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`and allows the Applicant to cherry pick Opposer’s witnesses. Nexus recognizes under Varian
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`that disclosure of only those most knowledgeable concerning the adoption of the REAL
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`ESTATE NEXUS mark is required. However, that is not only the purpose of the interrogatory.
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`As discussed above, information concerning the Applicant is absolutely not available to
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`the Opposer. Nexus respectfully points out that it would be at least some admissible evidence
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`concerning the likelihood of confusion if any employee associated with the Applicant or a
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`principal—in—interest was, or is, a former customer of Nexus. Nexus is able to check its customer
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`name and e—mail databases against those individuals and corporate entities associated with the
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`Applicant to determine motive/possible intent to create a likelihood of confusion and/or to free
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`ride on the NEXUS FINANCIAL GROUP mark.
`
`Further, Applicant has stated in their registration application that they are a real estate
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`agency. Because every state requires a realtor’s license to conduct mortgage lending services,
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`obtaining information concerning licensure of employees, independent contractors and officers
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`will tend to establish the geographic market over which the Applicant is a real estate agency.
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`Applicant’s geographic market and any overlap with that of Nexus is one of the DuPont factors.
`
`ll
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`

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`Therefore, discovery concerning licensure also goes to a core issue of the likelihood of confusion
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`under DuPont.
`
`Further, it is important to note that real estate sales are closely tied to mortgage
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`financing. The Applicant is intends to become involved in mortgage financial services (Exhibit
`
`D). To allow the Applicant to register REAL ESTATE NEXUS as a “real estate agency” and
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`ignore the fact that the Applicant is also involved in mortgage lending services is also a relevant
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`fact given the natural expansion doctrine.
`
`In Applicant’s June 14, 2007 response, the Applicant denied that any employee or
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`officer was held a realtor or mortgage broker license. In Applicant’ s Memorandum in
`
`Opposition, Applicant now informs Nexus that less than two weeks after their June 14m
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`response, the Applicant obtained a mortgage brokerage license.
`
`It was not until September 19,
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`2007, after Nexus filed their Motion to Compel, that the Applicant decided that it needed to
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`fulfill its duties to supplement its discovery responses.
`
`C. Interrogatory 4
`
`
`In an inquiry into the
`Applicant objects to this
`Identify any and all agents
`likelihood of confusion, the
`interrogatory on the basis
`and independent contractors
`similarity of trade channels
`that it is irrelevant. Subject
`hired by the Applicant and
`and the similarity of goods
`to, and without waiving said
`its affiliates from January
`and service are relevant.
`objection, Applicant states
`2002 to the present date that
`that no agent or independent Opposer is trying to
`are licensed brokers of real
`contractors are licensed
`determine what the
`estate or mortgages or
`brokers of real estate or
`Applicant’s market, or
`whose principals,
`employees and or agents are mortgages.
`intended market is. To the
`licensed brokers of real
`extent that the Applicant
`estate or mortgages,
`has or does not have
`including names, real
`licensed mortgage and real
`estate/mortgage license
`estate brokers in various
`numbers, dates of contract,
`states will define the
`
`e—mail addresses and their
`state of residence.
`
`Applicant’s market and any
`overlap thereof with the
`Opposer and the degree of
`overlap of services
`
`12
`
`

`
`rendered.
`
`As discussed above in concerning Interrogatories 1-3, Nexus asserts that determining
`
`whether any associates of the Applicant are or were customers of Nexus is relevant to the issue
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`of intent to create source confusion in an effort to free ride on the NEXUS FINANCIAL GROUP
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`mark. Such evidence goes to the issue of actual confusion.
`
`It is a standard practice in the real estate business to hire individual brokers as
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`independent contractors and hang their licenses with the owner of the brokerage firm. Such a
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`practice may have practical and legal benefits. However, independent contactors are not
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`employees or officers although they are as much a part of the mortgage firm as an employee.
`
`lnterrogatory 4 has the same purpose as Interrogatory 3.
`
`lnterrogatory 4 is concerned with
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`discovering any independent contractors that are former customers of Nexus. Further, to the
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`extent that any independent contractors were aware of the reputation or even the existence of
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`Nexus, such information would go directly to the issue of dilution and whether Nexus and/or
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`Brian Peart was famous in his market. Such information is relevant to the issues before the
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`Board.
`
`D.
`
`lnterrogatory 6
`
`6. Please provide
`consolidated and
`
`consolidating annual
`revenues generated by each
`business line/operation of
`the Applicant for each year
`from fiscal year 2002 to
`2006 and identify all
`documents used to compile
`such consolidated and
`
`consolidating revenues
`
`Applicant objects to this
`lnterrogatory on the basis
`that it is vague, overbroad
`and confusing in that the
`terms “consolidated” and
`
`In an inquiry into the
`likelihood of confusion, the
`
`similarity of trade channels
`and the similarity of goods
`and service are relevant.
`
`“consolidating” are
`undefined and that it is
`
`Opposer is trying to
`determine what the
`
`irrelevant and not
`
`reasonably calculated to
`lead to the discovery of
`admissible evidence on this
`
`matter. Subject to, and
`without waiving said
`objection, Applicant states
`
`Applicant’s market, or
`intended market is. To the
`
`extent that the Applicant
`has or does not have
`
`revenues in various states
`
`the information will define
`
`the Applicant’s market and
`
`13
`
`

`
`any overlap thereof with the
`see documents produced
`Opposer and the degree of
`with Response to Request
`overlap of services
`for Production of
`
`Documents. rendered.
`
`Revenues generated by a product and/or service line are highly relevant. En Fleur
`
`Corporation v. Microsoft Corporation, 1998 WL 197595 (TTAB 1998).
`
`Applicant objects to Interrogatory 6 as being vague, overbroad and confusing because
`
`terms “consolidated” and “consolidating” are undefined. Nexus respectfully notes that
`
`adjectives “consolidated” and “consolidating”, as used with in conjunction with financial
`
`statements, are very precise and commonly used terms particularly in the legal, accounting and
`
`finance fields. To claim confusion and or ignorance concerning these terms is disingenuous.
`
`(See, e.g., Black’s Law Dictionary With Pronunciations, (Henry Campbell Black, 6th Edition
`
`(West Publishing 1991)(definition of “consolidated financial statements”). Any accountant of
`
`ordinary skill, let alone a business executive, would immediately understand these common
`
`terms. Because the adjectives “consolidating” and “consolidated” are precise and commonly
`
`used terms in finance and commerce, Interrogatory 6 is not vague, overbroad or confusing.
`
`In its discovery response on June 14, 2007 Applicant provided what they purport a
`
`general ledger, without explanation, showing checks and deposits (APP 0029-0031, 0034, also
`
`Applicant’s Exhibit C). A mere general ledger showing checks and deposits, without more, is
`
`not a set of consolidate revenues let alone consolidated or consolidating revenues. The general
`
`ledger numbers provided in Applicant’ s Exhibit C are relatively meaningless without some
`
`context.
`
`Further, Applicant has indicated in their registration application that the are in the market,
`
`or will be in the market with 1) mortgage lending services, 2) real estate brokerage services, 3)
`
`real estate listing services and 4) title insurance services. Even if Applicant’s Exhibit C may be
`
`14
`
`

`
`possibly construed as the Applicant’s consolidated revenues, it is not set of consolidating
`
`revenues as it comrr1ingles revenues from each of the four lines of Applicant’s businesses.
`
`Nexus is not asking for other than round numbers as long as the numbers provided are readily
`
`understandable in their presentation and they are consolidating (i.e. broken out by business line)
`
`as well as consolidated.
`
`E.
`
`lnterrogatory 8
`
`8. Please Identify any and
`all principals, beneficial
`owners, employees,
`Officers, agents or
`independent contractors of
`Applicant that have
`received any products or
`services from Opposer or its
`owner, Brian Peart,
`
`including but not limited to
`seminars, Owner’s
`Summits, “Top Producer”
`magazine, instructional
`tapes, or subscriptions to
`“Ask Brian Peart” and
`
`identify all documents
`supporting such
`identification.
`
`None to Applicant’s
`knowledge.
`
`Applicant’s response is at
`least negligent if not
`deceptive. Applicant’s
`response indicates that
`Applicant may have never
`made a reasonable inquiry
`of those associates listed.
`Such a response may have
`been made off hand in a
`
`matter of seconds by one
`who has made no inquiry or
`is acting with willful
`blindness.
`
`Applicant’s answer is “None to Applicant’s knowledge”. This answer is evasive and
`
`non—responsive. In its Memorandum in Opposition on this point, Applicant is implicitly
`
`conceding that his previous answer was insufficient and is now boot strapping his answer in light
`
`of Nexus’ Motion to Compel. If a meaningful inquiry of its associates occurred prior to
`
`Applicant’s June 14m response, then Applicant’s answer should have so stated or Applicant
`
`should have supplemented its response.
`
`As mentioned above, evidence that any associate, any independent contractor or any
`
`principal was or is a customer of Nexus is at least relevant evidence concerning the issue of
`
`15
`
`

`
`dilution as well as to the issue of intent to free ride by creating a likelihood of source confusion
`
`or authorization confusion. Nexus is capable of making a definitive determination in order to
`
`remove intent as an issue but is unable to do so since the Applicant is unwilling to comply with
`
`Interrogatories 2, 3 and 4.
`
`F.
`
`lnterrogatory No. l2
`
`12. Please list the states
`
`that constitute Applicant’s
`geographic markets targeted
`and/or serviced under the
`
`Applicant objects to this
`lnterrogatory on the basis
`that it is Irrelevant, and
`seeks information not
`
`REAL ESTATE NEXUS
`
`reasonable calculated tom
`
`In an inquiry into the
`likelihood of confusion, the
`
`similarity of trade channels
`and the similarity of goods
`and service are relevant.
`
`mark.
`
`lead to the discovery of
`admissible evidence.
`
`Opposer is trying to
`determine what the
`
`Subject to, and without
`waiving said objection,
`Applicant states that its
`targeted markets are all
`persons, regardless of
`geography, who are
`interested in purchasing real
`estate.
`
`Applicant’s market, or
`intended market is. To the
`
`extent that the Applicant
`does or does not offer the
`
`listed services in various
`
`states will define the
`
`Applicants goods and
`services and any overlap
`thereof with the Opposer.
`
`Applicant’s response is vague, misleading and evasi