Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA589324
`ESTTA Tracking number:
`02/25/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91173963
`Plaintiff
`Mini Melts, Inc.
`ROBERT G OAKE JR
`OAKE LAW OFFICE
`825 MARKET STREET, SUITE 250
`ALLEN, TX 75013
`UNITED STATES
`rgo@oake.com
`Other Motions/Papers
`Robert G. Oake, Jr.
`rgo@oake.com
`/Robert G. Oake Jr./
`02/25/2014
`Motion to Use Testimony.pdf(791484 bytes )
`Request to Take Judicial Notice.pdf(112513 bytes )
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`Proceeding
`Party
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`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`
`ESTTA589324
`ESTTA Tracking number:
`02/25/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91173963
`Plaintiff
`Mini Melts, Inc.
`ROBERT G OAKE JR
`OAKE LAW OFFICE
`825 MARKET STREET, SUITE 250
`ALLEN, TX 75013
`UNITED STATES
`rgo@oake.com
`Other Motions/Papers
`Robert G. Oake, Jr.
`rgo@oake.com
`/Robert G. Oake Jr./
`02/25/2014
`Motion to Use Testimony.pdf(791484 bytes )
`Request to Take Judicial Notice.pdf(112513 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
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`Mini Melts, Inc.,
`Opposer,
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`v.
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`Reckitt Benckiser LLC,
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`Applicant.
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`§
`§
`§
`§
`§ Opposition No. 91/173,963
`§
`§
`§
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`OPPOSER’S UNOPPOSED MOTION FOR LEAVE TO USE TESTIMONY
`FROM ANOTHER PROCEEDING
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`Opposer Mini Melts, Inc. files this unopposed motion for leave to use testimony from
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`another proceeding, respectfully showing as follows:
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`
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`1.
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`CERTIFICATE OF CONFERENCE - The undersigned attorney for Opposer has
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`communicated with attorney for Applicant and this Motion is unopposed.
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`2.
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`3.
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`This motion is being made during the testimony period of the moving party.
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`37 CFR § 2.122(f) entitled "Testimony from other proceedings" states "[b]y order
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`of the Trademark Trial and Appeal Board, on motion, testimony taken in another proceeding, or
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`testimony taken in a suit or action in a court, between the same parties or those in privity may be
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`used in a proceeding, so far as relevant and material, subject, however, to the right of any
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`adverse party to recall or demand the recall for examination or cross-examination of any witness
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`whose prior testimony has been offered and to rebut the testimony."
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`4.
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`Opposer moves for leave to use testimony from trial proceeding Mini Melts, Inc.
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`v. Reckitt Benckiser, Inc., Docket No. 4:07cv271, United States District Court, Eastern District of
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`Texas, Sherman Division. This trial proceeding was between the same parties that are involved
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`in this opposition. The testimony is generally relevant and material in that it involves issues
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`1
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`related to the trademark MINI MELTS for ice cream and the trademark MINI-MELTS for a drug
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`and whether they create a likelihood of confusion in the marketplace.
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`5.
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`Opposer moves for leave to use the trial testimony of Tom Mosey, owner and
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`president of Mini Melts, Inc. The attached testimony excerpts are relevant and material to the
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`issues of Mini Melts, Inc.'s common law rights in the trademark MINI MELTS, factors of
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`likelihood of confusion including strength of the marks, similarity of the marks, similarity of the
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`products and marketing, safety, actual confusion, other products in the marketplace, and effect of
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`the confusion on Mini Melts, Inc.
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`6.
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`Opposer moves for leave to use the trial testimony (with attached exhibit P418) of
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`Bill Mizzell, former employee of Mini Melts, Inc. The attached testimony excerpts and Exhibit
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`P418 (Mini Melts Customer List) are relevant and material to the issues of Mini Melts, Inc.'s
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`common law rights in the trademark MINI MELTS, and factors of likelihood of confusion
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`including strength of the mark, marketing, and safety.
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`7.
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`Opposer moves for leave to use the trial (jury and bench) testimony of James T.
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`Berger, expert witness for Applicant. The attached testimony excerpts are relevant and material
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`to the issues of Mini Melts, Inc.'s common law rights in the trademark MINI MELTS, the two
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`surveys conducted by Mr. Berger regarding the marks MINI MELTS and MINI-MELTS, and
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`factors of likelihood of confusion including strength of the marks, similarity of the marks,
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`similarity of the products and marketing, and actual confusion.
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`8.
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`Opposer moves for leave to use the trial testimony of Mathew Leung, then
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`employee of Applicant. The attached testimony excerpts are relevant and material to the issues
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`of factors of likelihood of confusion including marketing and safety.
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`2
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`9.
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`Opposer moves for leave to use the trial testimony of David John Long, then
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`employee of Applicant. The attached testimony excerpts are relevant and material to the issues
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`of factors of likelihood of confusion including marketing and safety.
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`10.
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`Applicant does not oppose this motion.
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`11.
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`For the reasons set forth above, Opposer Mini Melts moves for leave to use
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`testimony from another proceeding in the trial of this proceeding.
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`Respectfully submitted,
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`/s/ Robert G. Oake, Jr.
`Robert G. Oake, Jr.
`Texas State Bar No. 15154300
`Oake Law Office
`825 Market Street, Suite 250
`Allen, Texas 75013
`(214) 207-9066
`rgo@oake.com
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`Attorney for Opposer Mini Melts, Inc.
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`CERTIFICATE OF SERVICE
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`
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`I certify that a true and correct copy of the foregoing reply was served upon the Applicant
`via e-mail on February 25, 2014 as follows:
`
`Debra Deardourff Faulk
`Debra.Faulk@gray-robinson.com
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`/s/ Robert G. Oake, Jr.
`Attorney for Opposer Mini Melts, Inc.
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`3
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`
`
`URITED STATES DISTRICT COURT
`UNITED STATES DISTRICT COURT
`EASTERR
`DISTRICT OF TEXAS
`EASTERN DISTRICT OF TEXAS
`SHERMAN DIVISION
`SHERMAN DIVISION
`
` 1
`
`INC.
`ELTs,
`MINI MELTS, INC.
`
`VS.
`VS.
`
`RECKITT B
`RECKITT BENCKISER, INC.
`
` :
`:
`:
`:
` :
`
`DOCKET NO.
`4:07CV271
` DOCKET NO. 4:07CV271
`
`TEXAS
`SHERMAN,
` SHERMAN, TEXAS
`JUVE 22,
`2009
` JUNE 22, 2009
`8:55 A.M.
` 8:55 A.M.
`
`RANSCRI
`?T OF TRIAL
`TRANSCRIPT OF TRIAL
`4 TH
`EID'
`E HONORABLE
`MICHAEL H.
`SCHN
`BEFORE THE HONORABLE MICHAEL H. SCHNEIDER,
`AND A JU
`ED STATES DIST
`RICT JUDGE,
`UNITED STATES DISTRICT JUDGE, AND A JURY
`
`JR.
`RT G. OAKE,
`MR. ROBERT G. OAKE, JR.
`L
`OFFIC
`OAKE LAW OFFICE
`ET STR 4|
`‘ET, SUIT
`825 MARKET STREET, SUITE 250
`EXAS
`75013
`ALLEN, TEXAS 75013
`
`E E I
`
`CLYDE
`MOODY SIEBMAN
` MR. CLYDE MOODY SIEBMAN
`LAWRENCE PHILLIPS
`MR. LAWRENCE PHILLIPS
`BURG
`EBMAW, REYNOLDS,
`SIEBMAN, REYNOLDS, BURG
`3 PHILLI
`?S
`AND PHILLIPS
`T
`E'ET
`0 N.
`300 N. TRAVIS STREET
`090
`ERMAW,
`TI
`SHERMAN, TEXAS 75090
`
`EIW
`EFAN V.
`E. ST
`MR. STEFAN V. STEIN
`MS. DEBRA
`EARDOUEFF FAULK
`MS. DEBRA DEARDOURFF FAULK
`PA
`GRAY
`ROBINSON,
`GRAY ROBINSON, PA
`FRAWK STREET
`201 W.
`201 N. FRANK STREET
`SUITE
`2200
`SUITE 2200
`FLORIDA
`33602
`TAMPA,
`TAMPA, FLORIDA 33602
`
`MS.
`JAN MASON
`MS. JAN MASON
`CERTIFIED SHORTHAND R
`CERTIFIED SHORTHAND REPORTER
`221 W. F
`ERGUSON #100
`221 W. FERGUSON #100
`TYLER, TEXAS
`75702
`TYLER, TEXAS 75702
`
`A E
`
`APP
`EARANC
`S:
`APPEARANCES:
`
`PLAINTIFF:
`FOR THE
`FOR THE PLAINTIFF:
`
`FOR THE DEFENDANT:
`
`COURT R
`COURT REPORTER:
`
`ED RY M"
`PROCEEDINGS REPORT
`TRANSCRIPT
`ECHANICAL STENOGRAPHY,
`PROCEEDINGS REPORTED BY MECHANICAL STENOGRAPHY, TRANSCRIPT
`PRODUCED BY COMPUTER-AIDE) TRANSCRIPTION.
`PRODUCED BY COMPUTER-AIDED TRANSCRIPTION.
`
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`THE COURT: Nice to see you this morning. We're
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`ready to get started and I'll ask that -- we're still working
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`with a little bit of equipment here, but I'll ask the first
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`witness to take the stand, please.
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`We administered the oath before you came out, so every
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`witness that takes the stand somehow or another has been
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`sworn. Sometimes we don't get them until they get to the
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`stand, but we try to do them all together at one time if we
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`can.
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`All right. Sir, if you will, kind of work with that
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`microphone up here close.
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`THE WITNESS: Yes, Your Honor.
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`THE COURT: I actually forget myself to do that, so
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`if you'll do that.
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`Mr. Oake, are you -- how's your equipment coming on its
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`test drive here this morning? Of course it's not working.
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`I'm just joking with you. Please proceed.
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`MR. OAKE: Thank you, Your Honor. Your Honor, may I
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`proceed?
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`THE COURT: Please.
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`MR. OAKE: Thank you.
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`TOM MOSEY, PLAINTIFF'S WITNESS, SWORN,
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`D I R E C T E X A M I N A T I O N
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`24
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`BY MR. OAKE:
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`25
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`Q
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`Mr. Mosey, would you please state your name for the
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`jury?
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`A
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`Q
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`A
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`Q
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`A
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`Q
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`Tom Mosey.
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`Do you currently hold a position with Mini Melts, Inc.?
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`Yes, I do.
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`What is that position?
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`I'm the president.
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`And are you also the owner?
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`Yes, I am.
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`Are you the sole owner of Mini Melts, Inc.?
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`Yes.
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`Is that the same Mini Melts, Inc. that's the Plaintiff
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`12
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`in this lawsuit?
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`14
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`A
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`Q
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`Yes, it is.
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`Before we discuss the facts of this case, I would like
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`you to tell a little bit about yourself to the jury, okay?
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`Q
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`Okay.
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`Where were you born?
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`I was born in Cheltenham, England.
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`What year was that?
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`1965.
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`And where is Cheltenham, England?
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`It's a little bit northwest of London.
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`How old are you now?
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`Forty-three.
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`And what year were you born?
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`But the question -- I like to think of the difference,
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`and this is my own made-up version of what I think the law
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`is on it, but a yes or no question is kind of a leading
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`question and a multiple choice question would be a proper
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`question. In other words, where you say what -- well,
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`that's not a very good example, but basically you want the
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`questioner not to suggest the answer.
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`And so when I sustain these things, that's the ruling
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`in it, and I don't mean to take your time but we need to get
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`the questions answered properly, all right? In fact, I'm
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`trying to save you time.
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`Please.
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`MR. OAKE: Thank you, Your Honor.
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`14
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`BY MR. OAKE:
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`15
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`Q
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`During the general period of time that we've been
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`talking about of the claim construction, were you continuing
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`to market -- what were you continuing to do with the Mini
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`Melts product, if anything?
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`A
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`Q
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`A
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`We were continuing to try to market the product.
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`How were you trying to do that?
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`By trying to attend the trade shows, specifically IAAPA,
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`and because of everything that was going on in the
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`litigation, we wanted to attract a large distributor that
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`would be capable of defending themselves in what would
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`obviously become a more litigious situation.
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`Q
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`Were there other trade shows that you attended?
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`MR. STEIN: Objection, leading.
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`THE COURT: I'll let him direct his attention to the
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`next subject matter. All right. Did you attend some other
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`trade shows?
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`A
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`Yes, we did.
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`THE COURT: All right.
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`BY MR. OAKE:
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`Q
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`A
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`What were those?
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`The other trade show was the NRA, the National
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`Restaurant Association.
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`Q
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`A
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`And could you describe to the jury what that is?
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`That's a trade show for anybody that is associated with
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`restaurant food service and those sorts of things, so that's
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`a huge -- huge show. There's probably 50, 60,000 attendees
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`at that show.
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`Q
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`Could you describe the marketing that you did at that
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`show?
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`A
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`We had a machine that could actually make the ice cream
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`on the spot. We developed a machine that was small enough
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`to use. They call it a duer of nitrogen. It's like a
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`55-gallon drum that's filled with liquid nitrogen. We could
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`attach that to the machine and then the machine could make
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`Mini Melts right there on-site, so almost like a soft serve
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`machine.
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`Q
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`What else at the NRA?
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`We were making the ice cream there. We were handing it
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`out as samples. We had a -- had a booth that had Mini Melts
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`displayed on the back of the booth. We were giving out
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`brochures, business cards.
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`Q
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`Describe everything that Mini Melts was on.
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`We had -- we were giving out samples of these cups
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`without the lids. It was on business cards. We probably
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`had letterhead there. There would have been a logo on the
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`side of the machine. There would have been the Mini Melts
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`logo on the back of the booth. We had Mini Melts on
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`brochures. Maybe we had Mini Melts teeshirts with the logo
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`on our chest.
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`Q
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`Could I direct your attention to P-4, page eight. The
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`eight is in the circle in the upper right.
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`A
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`Q
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`A
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`Yes.
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`What is this?
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`I think this is the flyer that we were handing out at
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`the NRA show. I know it is the flyer that we were handing
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`out at the NRA show.
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`Q
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`A
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`Page nine. What is this?
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`This is an advertisement we placed in Entrepreneur
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`International Magazine in October of 1999.
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`Q
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`A
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`Where is this magazine published?
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`In the United States.
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`Q
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`A
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`Can you read the text in your advertisement?
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`It says Mini Melts logo and then it says
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`www.MiniMelts.co.UK. Mini Melts are delicious balls of ice
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`cream, an exciting product for the millennium. Interested?
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`Please contact us or visit our Website P.O. Box 15215
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`Nottingham, England NG71AJ, telephone plus 4 115-941-3491,
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`fax plus 44 115-941-3508.
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`Q
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`What is the circulation of this magazine or what was it
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`in the United States at this time? Do you know?
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`I would be guessing. I think it's in the hundred
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`thousand plus range.
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`Q
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`Why did you choose this magazine?
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`It had a good exposure, both in the United States and
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`internationally of people looking for business, plus it was
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`a lot less expensive than the regular Entrepreneur Magazine.
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`Q
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`A
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`Why did you put the U.K Website?
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`Our dot com, MiniMelts.com Website was linked to the dot
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`co UK Website.
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`Q
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`What do you mean by that?
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`If you typed in MiniMelts.com, then it went straight to
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`the dot co dot UK site.
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`Q
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`A
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`Q
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`What was the time period of this magazine?
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`It was September, October of 1999.
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`Do you have a recollection of whether the MiniMelts.com
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`Website was up during that time?
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`A
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`Q
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`When you say up, what --
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`Could the public access it?
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`They could type in MiniMelts.com and it would go to the
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`dot co dot UK Website.
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`Q
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`Okay. There's a handwritten note. Would you read what
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`that says?
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`A
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`Q
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`A
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`It says FYI, Nick, should get busy.
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`What do you mean by that?
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`That means we just placed an advertisement and this is
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`Nick's telephone number at the bottom so I expected him to
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`get some contact.
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`Q
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`Page 16, please. This is on the same exhibit, P-4.
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`What is this, please?
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`A
`
`Q
`
`A
`
`Q
`
`A
`
`Oh, sorry. That's a letterhead used by Mini Melts.
`
`And is there an address at the bottom?
`
`Yes. 919 River Road Mystic, Connecticut 06355.
`
`What, if anything, were you doing with the letterhead?
`
`I would be sending it out to people I was speaking to
`
`19
`
`about Mini Melts.
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Page 12, please. What are these?
`
`They are my business cards.
`
`Do they have an address?
`
`Yes, they do.
`
`And what is that address?
`
`919 River Road Mystic, Connecticut 06355.
`
`
`
` 1
`
`A
`
`That's a specific class of product, I guess. It's the
`
` 2
`
`class that frozen confectionary and ice cream is in.
`
` 3
`
`Q
`
`And then there's a statement, no claim is made to the
`
` 4
`
`exclusive right to use "mini" apart from the mark as shown,
`
` 132
`
` 5
`
`correct?
`
`A
`
`Q
`
`A
`
` 6
`
` 7
`
` 8
`
` 9
`
`Correct.
`
`Is that something that you had disclaimed?
`
`Yes, that was disclaimed.
`
`MR. OAKE: All right. Your Honor, could I have the
`
`10
`
`bailiff hand the jury the trademark?
`
`11
`
`12
`
`THE COURT: Yes.
`
`MR. OAKE: Thank you.
`
`13
`
`BY MR. OAKE:
`
`14
`
`Q
`
`Could you look at P-7, please, sir? That would be in
`
`15
`
`volume one. Could you -- could you describe for the jury
`
`16
`
`what this is, please?
`
`17
`
`A
`
`This is something called the Way Back Machine. It's a
`
`18
`
`Website that you can use to go look at what Websites looked
`
`19
`
`like years before.
`
`20
`
`Q
`
`And what Website URL or name on the Website does this
`
`21
`
`particular page reference?
`
`22
`
`23
`
`A
`
`Q
`
`MiniMelts.com.
`
`Okay. And if we could look at the years, now, have you
`
`24
`
`ever used this Way Back Machine?
`
`25
`
`A
`
`Yes.
`
`
`
` 1
`
`Q
`
`Do you know where this particular document came from in
`
` 133
`
` 2
`
`this case?
`
` 3
`
` 4
`
`A
`
`Q
`
`I believe it came from the Defendants.
`
`Now, this has a reference to the years across the top.
`
` 5
`
`Do you see that, sir?
`
` 6
`
` 7
`
` 8
`
` 9
`
`A
`
`Q
`
`A
`
`Q
`
`Yes.
`
`Here, this column here?
`
`Yes.
`
`So you've got headings on columns and you've got years,
`
`10
`
`and you've got 2001 and then you've got a column. What is
`
`11
`
`your personal general recollection of what was going on with
`
`12
`
`the MiniMelts.com Website in 2001?
`
`13
`
`A
`
`It was still linked to the .co.uk Website, and there
`
`14
`
`wasn't a great deal of activity going on.
`
`15
`
`16
`
`17
`
`Q
`
`A
`
`Q
`
`You received -- the trademark issued on what day?
`
`February -- February, 2001.
`
`I'm sorry. What day in -- oh, I'm sorry. P-1, third
`
`18
`
`page.
`
`19
`
`20
`
`A
`
`Q
`
`February 20th, 2001.
`
`And in 2001 is it your recollection that MiniMelts.com
`
`21
`
`Website -- what is your recollection of the MiniMelts.com
`
`22
`
`Website in 2001?
`
`23
`
`A
`
`The reference from this Way Back Machine, we had a few
`
`24
`
`sort of -- I mean, I guess this is -- it roughly corresponds
`
`25
`
`to when there were changes made to the Website, so there
`
`
`
` 134
`
` 1
`
`were half a dozen changes in 2001 or updates, different
`
` 2
`
`pages that were -- were going on in 2001.
`
` 3
`
` 4
`
` 5
`
`Q
`
`A
`
`Q
`
`Was the MiniMelts.com Website up before 2001?
`
`It was briefly I think in 1997 or 1998.
`
`And then when did it come back into existence after that
`
` 6
`
`period of time, according to your recollection?
`
` 7
`
` 8
`
`A
`
`Q
`
`The end of 2000, beginning of 2001.
`
`And if we could go to the next page in this exhibit of
`
` 9
`
`P-7, what is this?
`
`10
`
`A
`
`I guess this is the front page of the Website. It says
`
`11
`
`click here to see our Website, so I think if someone had
`
`12
`
`typed in MiniMelts.com, that would have been the first page
`
`13
`
`that came up.
`
`14
`
`Q
`
`And what would have happened if they clicked on the
`
`15
`
`link?
`
`16
`
`17
`
`A
`
`Q
`
`That would have gone to the MiniMelts.co.UK Website.
`
`So let's look at the third page of seven, and what is
`
`18
`
`this?
`
`19
`
`20
`
`21
`
`22
`
`23
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`This is another printout of the Way Back Machine.
`
`What Website is this on?
`
`That's the MiniMelts.co.UK Website.
`
`Who was maintaining the MiniMelts.co.UK?
`
`I'm not sure. I think it may have been Nick Angus. But
`
`24
`
`I'm not -- I don't recall specifically who was maintaining
`
`25
`
`it.
`
`
`
` 1
`
`Q
`
`And the year references on MiniMelts.CO.UK, what -- what
`
` 2
`
`is the first year that that picks up a page change?
`
` 135
`
` 3
`
` 4
`
`A
`
`Q
`
`1999.
`
`Is that consistent with your recollection of that
`
` 5
`
`Website?
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`Yes.
`
`And then does it pick up pages in 2000?
`
`Yes.
`
`And 2001?
`
`Yes.
`
`And 2002?
`
`Yes.
`
`All right. If we could turn then to the next page of
`
`14
`
`P-7, what is this?
`
`15
`
`A
`
`That seems to be the front page of the MiniMelts.CO.UK
`
`16
`
`Website and the dot com would link to it.
`
`17
`
`18
`
`Q
`
`A
`
`What information does this have on it?
`
`It's just a welcome page. It's got a cup of Mini Melts
`
`19
`
`ice cream on it and a little bit of information.
`
`20
`
`Q
`
`Okay. And does it have the logo Mini Melts on the cup
`
`21
`
`of Mini Melts ice cream?
`
`22
`
`23
`
`A
`
`Q
`
`Yes.
`
`All right. If we look at the next page, does it have
`
`24
`
`additional information?
`
`25
`
`A
`
`Yes. There's some more marketing information. I think
`
`
`
` 1
`
`that's a picture of a location but it's very blurry.
`
` 2
`
`Q
`
`Then is there a reference to contact information at the
`
` 136
`
` 3
`
`bottom?
`
` 4
`
` 5
`
`A
`
`Q
`
`Yes.
`
`All right. If we look at the next page, what -- what
`
` 6
`
`information is this?
`
` 7
`
`A
`
`That is the telephone number, fax, address of Nick Angus
`
` 8
`
`in England and the contact for Mini Melts.
`
` 9
`
`10
`
`11
`
`Q
`
`A
`
`Q
`
`Does it have an e-mail address for sales?
`
`Yes.
`
`And could you just again quickly read the sentences
`
`12
`
`above the information?
`
`13
`
`A
`
`If you want to talk to us, ring the telephone number
`
`14
`
`below. If you need to fax us, fax using the number below.
`
`15
`
`If you need to write us, use the address below. If you want
`
`16
`
`to e-mail us, use one of the e-mail addresses below.
`
`17
`
`Alternatively, fill out the feedback form, and then there's
`
`18
`
`telephone, fax, post code and various e-mail addresses.
`
`19
`
`Q
`
`All right. Thank you. According to your recollection,
`
`20
`
`how long did the MiniMelts.com Website link to the
`
`21
`
`MiniMelts.co.UK Website?
`
`22
`
`23
`
`24
`
`25
`
`A
`
`Q
`
`A
`
`Q
`
`Probably three years.
`
`What period of time was that?
`
`From late 1999, early 2000 to 2000 -- beginning of 2003.
`
`Okay. Did it do so continuously?
`
`
`
` 137
`
` 1
`
` 2
`
`A
`
`Q
`
`Yes.
`
`During this period of time what happened in the
`
` 3
`
`relationship between FBI and FBD?
`
` 4
`
`A
`
`It deteriorated. By the end of the first year it was
`
` 5
`
`extremely strained, and they had an arbitration to try and
`
` 6
`
`sort out some of the disagreements in the -- between the two
`
` 7
`
`parties, and eventually that was resulted in the parties
`
` 8
`
`being split up.
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Where did the binding arbitration occur?
`
`In Miami, Florida.
`
`How many times did you go down there for it?
`
`Several, two or three.
`
`And what was the result of the arbitrator's finding?
`
`They basically said that the companies couldn't work
`
`15
`
`together and they split them apart.
`
`16
`
`17
`
`Q
`
`A
`
`After the companies were split apart, what did you do?
`
`We immediately changed the name to Mini Melts and
`
`18
`
`started -- started distributing the product that we were
`
`19
`
`manufacturing.
`
`20
`
`Q
`
`Describe to the jury how you affected this change from
`
`21
`
`Frosty Bites to Mini Melts.
`
`22
`
`A
`
`Well, the manufacturing was essentially the same. It
`
`23
`
`was the same facility, same process. All of the customers
`
`24
`
`that wanted to stay with us, we rebranded all of their
`
`25
`
`equipment to Mini Melts and they became Mini Melts
`
`
`
` 141
`
` 1
`
`Q
`
`All right, sir. And could you describe the general
`
` 2
`
`business structure of Mini Melts, Inc. as of 2006? Is it
`
` 3
`
`similar today as it was in 2006?
`
` 4
`
` 5
`
`A
`
`Q
`
`Yes.
`
`And could you describe what the general business
`
` 6
`
`structure is of Mini Melts, Inc. and how you do business?
`
` 7
`
`A
`
`Yes. We are primarily a manufacturer. We manufacture
`
` 8
`
`the product at the facility address described. We have
`
` 9
`
`several hundred customers around the United States that buy
`
`10
`
`product from us. We have I guess two or three distinct
`
`11
`
`groups of customers. The -- like a business owner, small
`
`12
`
`entrepreneurs that have these chest freezers set up, vending
`
`13
`
`machines set up, and they operate their own business. They
`
`14
`
`buy their product from us and sell it retail.
`
`15
`
`Then we have what we would consider more to be like a
`
`16
`
`house account where we would provide the equipment. That
`
`17
`
`would be more at a zoo or water park or theme park or
`
`18
`
`something like that. We provide all the equipment and the
`
`19
`
`shipment and we own all the equipment and send the theme
`
`20
`
`park or the zoo or the water park the product and they will
`
`21
`
`have their employees sell the product there on location.
`
`22
`
`23
`
`24
`
`25
`
`Q
`
`A
`
`Q
`
`A
`
`Okay. Do you have a brochure?
`
`Yes.
`
`All right. P-79, what is this, sir?
`
`That's the front page of our brochure.
`
`
`
` 1
`
`Q
`
`All right. And the two people on the front page of the
`
` 142
`
` 2
`
`brochure, who are these two people?
`
` 3
`
` 4
`
` 5
`
` 6
`
`A
`
`Q
`
`A
`
`Q
`
`Those are my kids.
`
`And at the bottom we have ice cream?
`
`Yes, they're eating ice cream.
`
`And if we could go to the next page of the brochure,
`
` 7
`
`what does this depict?
`
`A
`
`Q
`
`A
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`I think that's actually the back page of the brochure.
`
`I'm sorry.
`
`And that's just some pictures of different locations.
`
`THE COURT: What exhibit number are we on?
`
`MR. OAKE: We are on P -- I believe it's 79, sir.
`
`THE COURT: P-79.
`
`MR. OAKE: P-79, yes, Your Honor.
`
`THE COURT: Thank you.
`
`16
`
`BY MR. OAKE:
`
`17
`
`18
`
`Q
`
`A
`
`These are some of the locations?
`
`Yeah, they're pictures of some of the locations and a
`
`19
`
`listing of some of the countries that we operate in.
`
`20
`
`21
`
`Q
`
`A
`
`Okay. And then looking at the next page, what is this?
`
`I think that's a different brochure. That's actually
`
`22
`
`the back page of a brochure just showing some of the
`
`23
`
`different equipment that we have.
`
`24
`
`25
`
`Q
`
`A
`
`And then the next page, what is this?
`
`That's the front page of the last page we just saw,
`
`
`
` 143
`
` 1
`
`which shows one of our vending machines.
`
` 2
`
`Q
`
`And explain to the jury the importance of the vending
`
` 3
`
`operation for Mini Melts, Inc.
`
` 4
`
`A
`
`This is a large portion of our operation. There's a
`
` 5
`
`special vending machine that inside it -- it looks from the
`
` 6
`
`outside sort of the footprint of like a Coca-Cola machine,
`
` 7
`
`but inside it has a freezer. It's not a sliding glass
`
` 8
`
`freezer. It's like a chest freezer where they lift a top to
`
` 9
`
`it, and this allows a lot of our customers to use these in
`
`10
`
`shopping malls and family fun centers and tourist -- small
`
`11
`
`tourist attractions where it doesn't justify having a person
`
`12
`
`stand behind a kiosk or a cart.
`
`13
`
`THE COURT: All right. Let's go to question and
`
`14
`
`answer and don't go in narratives. Let's move it along.
`
`15
`
`16
`
`MR. OAKE: Yes, Your Honor.
`
`Your Honor, could I have the witness step down then and
`
`17
`
`we will show the jury about the cart, the ice cream cart
`
`18
`
`with the ice cream in it?
`
`19
`
`THE COURT: Yes, sir.
`
`20
`
`BY MR. OAKE:
`
`21
`
`Q
`
`Mr. Mosey, if you would step down, please.
`
`22
`
`THE COURT: Would the attorneys from the other side
`
`23
`
`like to come over and view this?
`
`24
`
`25
`
`MR. OAKE: May I approach, Your Honor?
`
`THE COURT: Yes, sir.
`
`
`
` 149
`
` 1
`
`equipment and other accessories, and all of that is --
`
` 2
`
`there's a profit margin in there for the company.
`
` 3
`
`Q
`
`Okay. Can you tell us what it is, what the profit
`
` 4
`
`margin is?
`
` 5
`
`A
`
`It will depend on each piece of equipment. For example,
`
` 6
`
`we've got the freezer here so I'll look at that. That's --
`
` 7
`
`in this exhibit price list it's $1650, and we buy that for
`
` 8
`
`about a thousand dollars, so it would be about a $600
`
` 9
`
`markup. That's for the entire freezer.
`
`10
`
`11
`
`Q
`
`A
`
`How about on the ice cream?
`
`The -- the profit margin is difficult to determine
`
`12
`
`because we have a lot of overhead factors and those sort of
`
`13
`
`things in there, but the cost of a precup of ice cream from
`
`14
`
`this agreement is 89 cents or 90 cents. Our cost to produce
`
`15
`
`it, excluding some of the overhead factors I was talking
`
`16
`
`about, is probably, 50 -- 50, 60 cents.
`
`17
`
`Q
`
`Can you give us some sense of how many -- how many
`
`18
`
`distributors you have in the United States now?
`
`19
`
`20
`
`A
`
`Q
`
`A couple of a hundred.
`
`And what -- when you say a couple of hundred, can you
`
`21
`
`describe -- I mean, are they -- are some large? Are some
`
`22
`
`small? Give us some sense of what you're talking about.
`
`23
`
`A
`
`They will vary from a person just having one freezer
`
`24
`
`like that to one of our larger customers having a hundred,
`
`25
`
`150 vending machines in various locations.
`
`
`
` 1
`
`Q
`
`Okay. Could you please look at P-63, sir. What is
`
` 150
`
` 2
`
`P-63?
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`That's a list of our customers.
`
`And did you prepare or have this document prepared?
`
`Yes.
`
`In connection with this case?
`
`Yes.
`
`All right. And how many pages is this document?
`
`Five pages.
`
`Yes. How many pages?
`
`Five pages.
`
`Five pages, okay. And are all the entities or people
`
`13
`
`listed on this customers of Mini Melts when this document
`
`14
`
`was prepared?
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`Yes, to the best of my knowledge they are, yes.
`
`If I could get you to look at P-69, what is this, sir?
`
`It's an income statement.
`
`And can you see the year on that?
`
`No, I can't.
`
`All right. Let's go to the next -- next page. What is
`
`21
`
`that?
`
`22
`
`A
`
`It's year-to-date total ice cream sales for January
`
`23
`
`through December of 2005.
`
`24
`
`Q
`
`All right. And does that have -- the third page, does
`
`25
`
`that have a total?
`
`
`
` 1
`
` 2
`
`A
`
`Q
`
`I just have two pages.
`
`Oh, I'm sorry. The -- do you have page one of two and
`
` 3
`
`do you have page two of two?
`
` 151
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`Yes.
`
`On page two of two is there a total?
`
`Yes.
`
`What is the total?
`
`One point four -- 1,427,000.
`
`And then 2006?
`
`MR. STEIN: Objection, Your Honor, on this financial
`
`11
`
`information. We would object on the grounds of relevance.
`
`12
`
`13
`
`14
`
`15
`
`MR. OAKE: May we approach?
`
`THE COURT: Yes.
`
`(Bench conference.
`
`MR. OAKE: One of the issues under trademark
`
`16
`
`infringement is how well-known and how many sales -- how
`
`17
`
`well-known this product is, so I need to show how extensive the
`
`18
`
`sales have been in the United States.
`
`19
`
`20
`
`THE COURT: All right, sir.
`
`MR. STEIN: In view of the fact there's no damages
`
`21
`
`left in the case --
`
`22
`
`23
`
`24
`
`THE COURT: No what?
`
`MR. STEIN: No damages left in the case.
`
`THE COURT: Well, we'll wait and see. I overrule the
`
`25
`
`objection.
`
`
`
` 1
`
` 2
`
`(Bench conference concluded.
`
` 152
`
`THE COURT: All right. The objection is overruled.
`
` 3
`
`BY MR. OAKE:
`
` 4
`
`Q
`
`Sir, do you have a year-to-date total ice cream sales
`
` 5
`
`for January to December, 2006?
`
` 6
`
` 7
`
` 8
`
` 9
`
`A
`
`Q
`
`A
`
`Q
`
`Yes, I do.
`
`What is that?
`
`$2,654,000.
`
`And then do you have year-to-date total ice cream sales
`
`10
`
`January 1st through November 8th, 2007?
`
`11
`
`12
`
`13
`
`14
`
`A
`
`Q
`
`A
`
`Q
`
`Yes.
`
`And what is that total?
`
`2,725,000.
`
`All right. And do you also have data concerning
`
`15
`
`equipment sales?
`
`16
`
`17
`
`A
`
`Q
`
`Yes.
`
`And when you sell equipment, does the Mini Melts logo --
`
`18
`
`is it placed on the equipment?
`
`19
`
`A
`
`Yes, in most cases. I mean, we have some equipment that
`
`20
`
`are like buckets and those sort of things that we don't put
`
`21
`
`the logo on.
`
`22
`
`Q
`
`And so are the equipment sales also contained in this
`
`23
`
`exhibit?
`
`24
`
`25
`
`A
`
`Q
`
`Yes.
`
`The sales are documented through 2007. Are you
`
`
`
` 1
`
`Q
`
`Mr. Mosey, can you tell the jury what states in the
`
` 2
`
`United States that Mini Melts ice cream is sold in? And I'm
`
` 3
`
`not going to ask you to say every exact state, but can you
`
` 154
`
` 4
`
`give us a general idea?
`
` 5
`
`A
`
`We are in most -- most of the states in the United
`
` 6
`
`States. I would say at least 35 to 40 states.
`
` 7
`
` 8
`
` 9
`
`Q
`
`A
`
`Q
`
`And are you in Texas?
`
`Yes.
`
`And can you tell the jury some places that you sell Mini
`
`10
`
`Melts ice cream in Texas?
`
`11
`
`A
`
`Texas Motor Speedway, Texas Stadium, the -- all the
`
`12
`
`Hawaiian Falls water parks in the Dallas area. We have in
`
`13
`
`the Dallas-Ft. Worth area 15 or 20 vending machines. We're
`
`14
`
`in Houston, San Antonio, I think down in the Valley, and we
`
`15
`
`have locations -- we have quite a few locations around
`
`16
`
`Texas.
`
`17
`
`Q
`
`What type of media advertising, if any, does Mini Melts,
`
`18
`
`Inc. do?
`
`19
`
`A
`
`We have Internet advertising. We do advertising with --
`
`20
`
`with Google and we advertise in some trade magazines,
`
`21
`
`Entrepreneur Magazine, some of their affiliate magazines and
`
`22
`
`some franchise magazines.
`
`23
`
`Q
`
`Is Mini Melts, Inc. primarily a wholesaler or retailer
`
`24
`
`of ice cream?
`
`25
`
`A
`
`It is primarily a wholesaler. We have some retail units
`
`
`
` 1
`
`primarily just to see customer reaction to the product and
`
` 2
`
`to get a fair understanding of what products are selling in
`
` 155
`
` 3
`
`the marketplace.
`
` 4
`
`Q
`
`The retail distributors of Mini Melts ice cream, are you
`
` 5
`
`aware whether they do any media advertising?
`
` 6
`
` 7
`
` 8
`
`A
`
`Q
`
`A
`
`They do.
`
`Explain what.
`
`It would depend on the -- on the retailer. I mean, some
`
` 9
`
`of the larger retailers will have a bigger budget and may do
`
`10
`
`some radio advertising, some local print advertising,
`
`11
`
`creating coupons. They're free to develop their own
`
`12
`
`advertising strategies how they see fit.
`
`13
`
`Q
`
`The
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