Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA184689
`ESTTA Tracking number:
`01/04/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91176044
`Plaintiff
`iKno, inc.
`Joseph Garrity
`Leiby, Stearns & Roberts, P.A.
`1000 Sawgrass Corporate Parkway, Suite 552
`Fort Lauderdale, FL 33323
`UNITED STATES
`jdg@leibylaw.com, ahertz@ikno.com
`Plaintiff's Notice of Reliance
`Joseph D. Garrity
`jdg@leibylaw.com
`/jgarrity/
`01/04/2008
`notice of filing and service w attcmt.pdf ( 64 pages )(3869553 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA184689
`ESTTA Tracking number:
`01/04/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91176044
`Plaintiff
`iKno, inc.
`Joseph Garrity
`Leiby, Stearns & Roberts, P.A.
`1000 Sawgrass Corporate Parkway, Suite 552
`Fort Lauderdale, FL 33323
`UNITED STATES
`jdg@leibylaw.com, ahertz@ikno.com
`Plaintiff's Notice of Reliance
`Joseph D. Garrity
`jdg@leibylaw.com
`/jgarrity/
`01/04/2008
`notice of filing and service w attcmt.pdf ( 64 pages )(3869553 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`United States Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Opposition No 91176044
`Serial No. 78766463
`
`NOTICE OF SERVICE AND FILING OF DEPOSITION
`
`TRANSCRIPT OF ALLEN HERTZ
`
`OPPOSER, by and through its undersigned counsel, hereby files this
`
`notice of service and filing of the transcript of Allen Hertz on Applicant and in
`
`support of its opposition on the date indicated herein.
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that a true and correct copy of the foregoing has
`
`been sent via e-mail to DEE:riich@I‘mss2eEnick.,com and U.S. Mail to:
`
`DAVID EHRLICH
`
`FROSS ZELNICK LEHRMAN & ZISSU, P.C.
`866 UNITED NATIONS PLZ,
`
`NEW YORK, NY 10017-1822 UNITED STATES
`
`On this 4"‘ day of January, 2008.
`
`LEIBY STEARNS & ROBERTS, P.A.
`Attorneys for Respondent
`
`
`
`JOSEPH P. GARRITY, ESQ.
`Florida Bar No. 87531
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of trademark application
`
`Serial No.: 78766463,
`
`A
`INNO
`For the mark:
`Published in the Official Gazett on
`
`iKno,
`
`Inc.
`
`memszemdl.i!?ti!€fe?!~fii?li<iSii%!€E$E$5€5¢!§E$E§!¢E§€$E3e-'E3
`
`
`
`-we-v2m4§m6wimam?amum:m22:
`
`Pioneer Kabushiki Kaisha TA Pioneer Corporation
`
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`
`
`
`
`
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`
`
`Sunrise, Florida
`
`December 24, 2007
`
`9:17 a.m.
`
`DEPOSITION
`
`OF
`
`ALLEN D. HERTZ
`
`W m
`.-
`
`
`ING, INC.
`(954) 525 — 2221
`
`-.-:
`
`
`
`APPEARANCES:
`
`LEIBY, STEARNS & ROBERTS, P.A.
`
`By:
`
`JOSEPH D. GARRITY, ESQ.,
`
`Appearing on behalf of the Respondent.
`
`Deposition of ALLEN D. HERTZ,
`
`a witness of
`
`§
`
`‘-a---------u--:1-an-amasaumma:anaaa:ama;sauma:ama:ma-
`
`lawful age,
`
`taken by the Respondent for the purpose of
`
`
`
`discovery and for use as evidence in the above—entitled vzeamamswssémsz-éasamag-ssm-
`
`
`
`cause, pursuant
`
`to notice heretofore filed, before
`
`LAURIE SUSSKIND, Registered Professional Reporter and
`
`Notary Public,
`
`in and for the State of Florida at
`
`Large, at 1000 Sawgrass Corporate Parkway, Sunrise,
`
`Florida.
`
`WITNESS:
`
`ALLEN D. HERTZ
`
`Direct Examination by Mr. Garrity
`
`RESPONDENT
`
`DESCRIPTION
`
`documents
`
`document
`
`document
`
`document
`
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`
`UNITED REPORTING, INC.
`(954) 525 - 2221
`
`21
`
`22
`
`23
`
`24
`
`25
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`
`(Thereupon,
`
`the documents referred to were
`
`Page 3
`
`marked for Identification as Respondent's
`
`Exhibits 1
`
`through 8, respectively.)
`
`MR. GARRITY:
`
`On the record.
`
`Prior to swearing in the witness for a
`
`deposition in the opposition trademark having
`
`Opposition Number 9117604 for my client's mark,
`
`i'KNO, spelled I—K—N—O, versus registrant mark
`
`of Inno, spelled I—N—N—O, owned by Pioneer
`
`Kabushiki Kaisha TA Pioneer Corporation,
`
`the
`
`deposition was noticed for 9:00 a.m.
`
`It is now
`
`9:18, and I'm going to call the opposing
`
`counsel, David Ehrlich, at Fross, Zelnick,
`
`Lehrman & Zissu, Z—I—S—S—U,
`
`law firm in New
`
`York representing the registrant.
`
`Opposing counsel was called, and we got a
`
`voice mail, left a message regarding the
`
`deposition going forward as scheduled.
`
`It had
`
`been previously discussed that Mr. Ehrlich
`
`refused and would not attend the deposition.
`
`will make my client available for
`
`cross—examination on receipt of the transcript
`
`of this deposition if Mr. Ehrlich desires to do
`
`SO.
`
`
`
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`
`UNITED REPORTING, INC.
`(954) 525 — 2221
`
`10
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`witness to be sworn in.
`
`Thereupon:
`
`ALLEN D. HERTZ,
`
`a witness,
`
`being first duly sworn in the
`
`
`above—entitled cause,
`
`testified under oath as follows:
`
`DIRECT EXAMINATION
`
`Q.
`
`(By Mr. Garrity) Could you please state your
`
`name for the record?
`
`
`
`
`
`
`
`
`
`a designer of §mmm§!¢at4-!:.iét2€z§§£x¥§ma-s-an-Q-.-'9-.-a-.mmesssswm:s2cm"-nrmrv--ev-xv!aa2mmMm--Mm6--t:-65----:4?»-5-.'-.9-.-':r5-rmrumamzm:2!3!‘;f3!’:iXifti£§1(fl‘i¥.t¥§i22fi¥§¥E¥e2...-anqggfigfiqggaegfigggmgguggugfiafigg.5ag.......,.,.m,.,,.m.m,,,,m,,,,.N,
`
`
`
`
`
`
`
`
`
`A.
`
`Q.
`
`Allen, A—L—L—E—N, Hertz, H-E-R—T-Z.
`
`Mr. Hertz, are you aware of an opposition
`
`filed regarding the mark Inno?
`
`A.
`
`Yes.
`
`Do you know how that opposition was filed?
`
`Filed it through the company,
`
`I-K-N-O,
`
`Q.
`
`You filed it yourself?
`
`A.
`
`Yes.
`
`Q.
`
`How did you learn about the
`
`registration -- pending registration of the mark for
`
`which you oppose?
`
`A.
`
`Through Michael Hartigan,
`
`the product.
`
`Q.
`
`Who is Mr. Hartigan? Who does he work
`
`Michael Hartigan works for XM radio.
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`
`UNITED REPORTING, INC.
`(954) 525 — 2221
`
`10
`
`ll
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`13
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`15
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`16
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`17
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`18
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`20
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`22
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`25
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`
`
`Q.
`
`How did Mr. Hartigan know about the
`
`registration of the mark?
`
`A.
`
`He had it on the product that showed the
`
`prototype product he developed.
`
`Q.
`
`And when you saw the prototype product,
`
`did you do some research to determine whether or not
`
`the mark was being registered?
`
`A.
`
`Yes,
`
`I did a search on USPQ Trademark
`
`Search
`
`site.
`
`Q.
`
`And when you were shown this device by
`
`Mr. Hartigan, did he tell you the name of the
`
`device?
`
`A.
`
`No.
`
`It was marked on there.
`
`Q.
`
`Did you have a discussion with him
`
`regarding this?
`
`A.
`
`Not about
`
`the name.
`
`Q.
`
`What was the purpose of him showing you
`
`the device?
`
`A.
`
`I knew he was developing it,
`
`and when the
`
`finished product was done,
`
`he showed it to me.
`
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`
`
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`
`
`
`How did you know him?
`
`Q.
`
`A.
`
`I knew him from my days at Motorola in the
`
`Yes. Became very good friends.
`
`early
`
`'90s.
`
`Q.
`
`Did you work together?
`
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`
`
`UNITED REPORTING, INC.
`(954) 525 - 2221
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`ll
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`'-rfimeier
`Page 6 1a
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`
`
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`
`
`
`
`
`
`Q.
`
`Did you have any conversations with him
`
`about the name of the product he was developing?
`
`A.
`
`Not —— the name of the product he was
`
`developing was originally a code name.
`
`I don't
`
`remember the code name, but
`
`I did know I had
`
`conversations with him about my companies, my
`
`company names before that.
`
`Q. What were those conversations?
`
`A.
`
`He knew I developed products, various
`
`products, and one of my products is a newspaper
`
`monitoring system, and it goes by the name of i'Kno,
`
`I*K-N—O.
`
`Q.
`
`And you had discussions with him prior to
`
`his developing this product for Pioneer?
`
`A.
`
`Yes.
`
`Q.
`
`I'm sorry.
`
`Do you have any idea who he
`
`was developing the product for?
`
`A.
`
`No. Actually, my understanding, he was
`
`developing it for XM radio.
`
`It was a surprise when
`
`it came out on Pioneer's name.
`
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`2::zzmmzgammam:zsmsasasasas-=aa-sa-32araen--4---X-E4:1fr!!!‘-ifiii.)$!.i:i'i'ifiifiliiliiiiiiiiiiiifiiiiiiflii
`
`Q.
`
`And did you have any discussions with
`
`anyone prior to filing your opposition regarding the
`
`.x»9r9';r:»:r:vevx=a=.m:mxss
`
`name Inno?
`
`A.
`
`Not that I remember.
`
`Can you explain to me your use of the mark
`Q.
`
` ‘ =m......................~.. ._.,._ ~ -- -;-‘_;_;‘_;‘ __ mm-.-..
`
`UNITED REPORTING, INC.
`(954)525-2221
`
`
`
`
`
`
`
`
`
`5--an'z“Nt‘an'i'rMs2?e1'e-15:2?!-nixassaamsamgram:--my'm-m!5€3z!é!.$!ii.§i£€§€£Esiéf§£§6§££23-f€5§i§.£§§l-€§£--9;~-"sW‘Vy‘1¢*'32'»,m(-vmnIrznxxszmx2-am2::ms?Ammasssaasazasamszasssssasa-as§m&§!9ms-a--'?»a-s--4-«-5-mewmnmm
`
`
`
`A.
`
`Yes. We used it for any type of
`
`radio—type products, any wireless products.
`
`Q.
`
`And what type of products would that
`
`comprise of?
`
`A.
`
`Initially, what we did, we came up with a
`
`way to monitor newspaper racks where —— what we do
`
`is we can do, by directional transmissions,
`
`to and
`
`from the newspaper rack for communication to the
`
`rack as well as to the general public.
`
`Q.
`
`When you say initially, do you have any
`
`idea what kind of time frame you are talking about
`
`when you developed the product under that mark iKno?
`
`A.
`
`The conception of the product was in 1999.
`
`The product was deployed on August of 2003 with the
`
`first deployment being in South Florida, and we
`
`currently have products on both coasts of the United
`
`States.
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`Q.
`
`Since you became aware of the fact that XM
`
`radio was using the mark Inno, have you seen any
`
`advertising for the product associated with that
`
`mark?
`
`A.
`
`Lots of advertising all over the place as
`
`well as the actual product in retail outlets.
`
`
`
`
`
`
`
`
`
`
`
`Have you ever had a discussion with anyone
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`(954) 525 — 2221 a
`
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`
`Q.
`Okay.
`Do you mm same question.
`Do you
`see the product that we were talking about today
`
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`
`
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`
`regarding the product and wherein you identified it
`
`Page 8
`
`as the Inno product?
`
`A.
`
`My product or theirs?
`
`Q.
`
`No, their product.
`
`Their product?
`
`The only persons that I talked to is my
`
`attorney and my business partner and my wife.
`
`Q.
`
`And I'm going to show you what has been
`
`previously marked as Exhibit 1 to this deposition.
`
`Do you recognize that document?
`
`A.
`
`Yeah.
`
`It's an advertisement
`
`from the XM
`
`Online Store.
`
`Q.
`
`Do you see the particular product that we
`
`are having discussions about today?
`
`MR. GARRITY: Off the record.
`
`(Discussion off the record.)
`
`marked Inno?
`
`A.
`
`Yes, and accessories.
`
`Q.
`
`Can you describe the use as it is used on
`
`Exhibit 1?
`
`A.
`
`There is -- it looks like a regular MP3
`
`player and with an antenna or a radio.
`
`It's also
`
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`It's all noted as
`got a lot of accessories with it.
`;.4.
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`(954)525-2221
`
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`
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`lower case Inno with circle R after it in one,
`
`three,
`
`four, five locations.
`
`It does have Inno
`
`two,
`
`battery, a case, a holster, an armband case and a
`
`Page 9%
`
`
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`home adapter kit with lots of wires.
`
`Q.
`
`And is it your testimony that they're
`
`holding the mark Inno out as a registered mark?
`
`A.
`
`From my understanding, yes.
`
`It's got
`
`circle R after each instance.
`
`Q.
`
`Do you know whether or not the mark is
`
`registered?
`
`A.
`
`As far as I know,
`
`including all the
`
`research on the USPQ websites, it's not registered
`
`in this application.
`
`Q.
`
`In fact, it is a subject of your
`
`opposition; correct?
`
`A.
`
`Correct.
`
`Q.
`
`Can you describe, if you can, any
`
`similarities between the product line that you are
`
`looking at on that advertising, Exhibit 1, and the
`
`products that you market it under the mark iKno?
`
`A.
`
`They're two—way radios or at least
`
`receiving —— radio receiver.
`
`Q.
`
`So you have a radio receiver as being one
`
`category of items that are sold under the same
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`UNITED REPORTING, INC.
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`A.
`Batteries.
` Batteries is another one. Any others?
`
`
`
`
`Those plans going forward, are those
`products that stem from your initial use of this
`
`for other devices such as headsets, et cetera.
`
`Q.
`
`:32
`
`
`
`Q.
`
`A.
`
`Antennas, and we have plans going forward
`
` mark iKno?
`
`A.
`
`Yeah.
`
`2xz.x;mz.i;xx2s%s&---s‘-‘-hw.
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`
`
`
`what we are doing. That's the concept of the
` company.
`macaw-<.-hm:-1:‘:-xi‘
`
`
`
`Q.
`I'm going to show you a document that has
`been previously marked Exhibit 2 and ask you if you
`
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`
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`
`
`zen‘mirm?£{é3x§§:€£§%‘§'
`
`know what that document is.
`
`
`
` It was deployed on the first day of deployment.
`
`
`Do you know what the first day —- I'm
`Q.
` sorry. When you say Rack Number 3 --
` A.
`
`A.
`
`Yes.
`
`It is a picture of Rack Number 3.
`
`There were three racks that were built to
`
`
`
`
` The first trial run of the monitoring
`
`
`
`Tested -- what kit are we talking about?
`
`be tested in the first kit.
`
`
`
`Using the iKno product line?
`
`Yes.
`
`
`
`-mart2:2k§‘:1§§-!-5’uH6iE£€€£€H
`
`
`
`And that was sold to someone or --
`A-" ‘ ..ur-
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`
`UNITED REPORTING, INC.
`(954) 525 — 2221
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`Yes,
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`they were sold to Sun-Sentinel
`
`Newspaper Company owned by Tribune.
`
`I believe they
`
`Page 11
`
`were deployed on August
`
`6 of 2003.
`
`Q.
`
`Okay. And I'm going to show you what has
`
`been marked Composite Exhibit 3 and ask you if that
`
`is a description of the system that you just talked
`
`about within that newspaper rack system.
`
`A.
`
`Yes. That's our —— looks like our
`
`Internet website for one page; our sales and
`
`marketing product as well as our general labeling of
`
`the product on the second one, which includes the
`
`mark iKno; and the third one is a picture of our
`
`marketing portable demo unit.
`
`Q.
`
`So is the third a natural photograph of
`
`the demo unit that you were using in commerce to go
`
`around to show your product to various customers?
`
`Correct.
`
`Clearly marked with your mark iKno?
`
`Yes.
`
`The first page is a description from your
`
`Is that what you said?
`
`Yes.
`
`mtrimI1miszéatrf4-:€~a¢m'nmm921-I-m<miz:§m9izm-3mmsemeéssaxscmsmsmssyam-cams-azsvmvaaemmxai
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`
`
`
`
`
`
`
`
`
`
`2-cmmszmm»zmemzazwanna;umrmmu-1xzanxgwnnxsxiz’£24;,.z‘..R.‘=%.IN.-fin.=¢=r='='=
`
`Q.
`
`And can you tell me what it says regarding
`
`what the iKno does and its various uses, how it
`
`interfaces with the general public?
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`
`
`
`UNITED REPORTING, INC.
`(954) 525 - 2221
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`A.
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`It interfaces via Internet, e—mail, cell
`
`phone, paging wireless. What it is, it is a full
`
`Page 12
`
`wireless communicating device.
`
`Q.
`
`This is wireless PDA. What type of
`
`communication would have been via wireless PDA
`
`system?
`
`A.
`
`What we do is we do blackberry
`
`communication direct to blackberry. We put our data
`
`on the Internet so you can access on the Internet.
`
`We send text messages to cell phones,
`
`text messages
`
`‘:9.1"
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`-H.‘
`
`
`
`to pagers, any way to communicate with someone.
`
`Q.
`
`Was there ever any contemplation about
`
`using a satellite radio network to transmit
`
`information?
`
`A.
`
`Satellite specifically only through
`
`whatever the cellular system uses.
`
`Q.
`
`And when you are transmitting, what type
`
`of information are you transmitting?
`
`A.
`
`We are transmitting data. We are also
`
`transmitting audio. What we can do is we can send a
`
`message from our home system to the racks, which
`
`gets recorded in the racks and gets played back to
`
`the consumer. We can also send video information to
`
`the rack which can be displayed for your storefront
`
`§
`
`..
`
`applications or racks.
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`UNITED REPORTING, INC.
`(954)525-2221
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`
` Q.
`Explain to me about your storefront
` applications.
`
`A.
`If they have a display that goes on their
`
`
`storefront, because of the power situation, and then muamuzaxaii
`
`you can send a visual message or information to it
` and then it can be displayed on the front.
` mszamssmmsa--
`
`
`
`Q.
` holding newspapers?
`
`
`
`You are talking about a display for
`
`
`
`fimésxamamasmsaaamza-a-I:=a-sewmmmm
`
`A. Advertising, yeah.
`
`
`
`Q.
`
`The display does advertising, and that's
`
`
`
`built into a newspaper rack system --
`
`A.
`
`YES.
`
`
`Q.
`
`—— in the store?
`
`Was there ever any intent to transmit
`
`
`
`
`
`
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`
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`advertising to the general public through this
`
`
` wireless system?
`n§<é%"":
`
`
`Yes. There are plans right now to
` mm-ma
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`boxes that are out in the field.
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`
` given to the general public in order to receive
` these messages?
`"-i€i¥.$€E£$<éc1‘s
`
`A.
`
`transmit out from the box to people walking by using
`
`their blue tooth. And there is understanding of
`
`advertising revenue for that.
`
`The whole concept is
`
`how you build advertisement revenue from these dumb
`
`Q. Would there be a similar iKno product
`
`-‘ -‘
`
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`UNITED REPORTING, INC.
`(954) 525 — 2221
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`,......
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`A.
`
`Yeah.
`
`It would be —- there is a blue
`
`Page 14
`
`tooth headset that we got
`
`in the works that we will
`
`go ahead.
`
`You can walk around with it.
`
`You can
`
`record anything.
`
`It can tie into any blue
`
`tooth—type device,
`
`such as a radio,
`
`a cell phone, or
`
`anything else.
`
`And this was actually discussed with
`
`Mike Hartigan.
`
`I don't know if it ever went to
`
`Stell Patsikios,
`
`who is the vice president of
`
`engineering at XM Radio.
`
`Q.
`
`A.
`
`He's vice president at XM radio?
`
`Vice president of development
`
`in XM radio.
`
`Q.
`
`You had discussions with him regarding
`
`those plans?
`
`A.
`
`And discussions with Michael Hartigan, and
`
`Mike was supposed --
`
`Q.
`
`Was that prior to your finding about the
`
`Inno?
`
`A.
`
`YES.
`
`—- Inno
`
`product?
`
`YES.
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`Q.
`
`Do you believe there is going to be
`
`confusion in the marketplace between the mark iKno
`
`and Inno should the registration be allowed for?
`
`A.
`
`My understanding is yes.
`
`I
`
`talked to that I have been dealing with, my
`- "‘-L mw
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`
`UNITED REPORTING, INC.
`(954) 525 — 2221
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`
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`
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`Page 15 swasmmms
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`:
`
`customer base,
`
`they know my system as the iKno
`
`radio, and that's basically by pronunciation.
`
`Anything with lower case iKno is considered as iKno.
`
`Q.
`
`And your customers consider your product
`
`and its combinations to be the iKno radio?
`
`A.
`
`Yes.
`
`And do you think that would be —— Strike
`
`I'm going to show you what has been
`
`previously marked as Exhibit 4 and ask you if you
`
`can identify that.
`
`A.
`
`This was the initial proposal to the
`
`Sun—Sentinel for our deployment, and it was in the
`
`middle of 2003.
`
`Q.
`
`In the middle of 2003,
`
`the Sun—Sentinel
`
`was purchasing what was known to them as the iKno
`
`radio product?
`
`A.
`
`Yeah. This was actually our —— this was
`
`for your second order of units.
`
`It was dated
`
`September, right after our August deployment.
`
`I
`
`Q.
`
`Okay.
`
`A.
`
`We got a purchase order end of September,
`
`early October.
`
`Q.
`
`And I show you an exhibit marked as
`
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`Exhibit 5 and ask if that was a payment received for
` ' w M---v--=
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`UNITED REPORTING, INC.
`(954) 525 — 2221
`
`
`
`
`
`Q.
`
`Was that part of the three units that we
`
`saw in this initial photograph that was marked
`
`Exhibit 2?
`
`A.
`
`Yes.
`
`Q.
`
`Again, was the Tribune buying the iKno
`
`radio product?
`
`A.
`
`Yes.
`
`Q.
`
`I show you what was previously marked as
`
`Exhibit 6 and ask you if you can identify it.
`
`A.
`
`That is an invoice for monthly service for
`
`three systems.
`
`That was our first month service
`
`from August
`
`6 to September 6.
`
`The invoice was dated
`
`September 22, 2003.
`
`Q.
`
`And I have another previously marked
`
`exhibit, Exhibit 7. Have you ever seen that
`
`document before?
`
`A.
`
`Yeah.
`
`It is the introduction of the Inno
`
`product
`
`from Pioneer Electronics.
`
`It is their
`
`website page.
`
`.........M...~..
`
`_._ _
`
`_
`
`Q.
`_ _._ __ _
`
`Do they identify their product as being an
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`UNITED REPORTING, INC.
`(954) 525 — 2221
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`
`that purchase order?
`
`A.
`
`This is —— this was our payment for our
`
`first -— our first deployment.
`
`The payment was
`
`dated 9/26/03 for deployment of three units by
`
`Tribune Corporation.
`
`Page 16 amimam-imsméas
`‘int’1:21‘:3Hi
`
`xéttsqzaz:;x:.x!;ms3<¥i:zé.5
`
`
`
`
`
`
`Inno radio product?
`
`
`
`
`
`
`
`
`brought their collaborative forces together to bring
` you Inno,
`
`
`
`
`deposition that you had previously disclosed your -mmamw¢-¢-'-
`ram;-.}a\.l.;'5“;
` A.
`E-W-‘-'-maamosan
`
`Q.
`So XM radio had knowledge of your use of
`
`the market Inno and now is involved in the ‘cs'<ass€.;-
`z:s:.evm-:.m-6-‘
` A.
`
`Correct.
`
`
` 1'.'-1»esxe--msmwséztg‘et’-e$§fi;§:as:§z£zt»x€£i&ti1i¥¢:
`
`
`Q.
`And then I want to show you what has been
` previously marked Exhibit 8.
` I'm going to ask one more question about
`H.'=x»sex:6!|§.!§$?3$K-§5.§i-§i§--=-=am»:ms=a.uaumm5:
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`Page 17
`
`A.
`
`"Introducing the Inno library, download
`
`music to one tiny gadget.
`
`Two of the biggest names
`
`in the electronics industry, Pioneer and XM Radio,
`
`I—N—N—O."
`
`Q.
`
`And you've testified during this
`
`company name, your product name to XM radio;
`
`
`correct?
`
`
`
`Correct.
`
`subsequent use of the mark for radio Inno?
`
`
`
`
`I know we were looking at Exhibit 1 where
`
`we talked about the use of the mark Inno with a
`
`
`
`circle R after it; and I want to direct you to a
`
`specific line in Exhibit Number 7, and tell me if
`
`Exhibit 7.
`
`11'
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` they are using the circle R in designating Inno in this document?
`
`-M-s-u;:;mw 3,,
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`
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`
`
`UNITED REPORTING, INC.
`(954) 525 — 2221 2
`
`
`
`
`
`
`
`
`
`xv:z:s:§x;:;ixx::x:xe2-scaxtcswmmzm':m:§£ziz-s1?):2»:xsza=x§xzcmm:9t¢$$¥~e‘032kmsommsssasama---.fiii3<
`
`
`
` A.
`No.
`It is all TM.
`
`
`
` auaxu1*2'<:$mm:m:ss=.:asaawe-‘.
`
`TM throughout.
`
`
`Do you have any idea -- §rmm2?-mamas
`
`
`
`
`the bottom, it says Inno is a trademark t-isms:-m§43:‘
`A.
`At
` of Pioneer, not a registered trademark, and it is
`
`copyright 2007 at the bottom by Pioneer Electronics.
`
`But their products are marked with Inno circle R,
`
`copyright 2006 that are in retail stores throughout.
`
`
`
`tzxmxcxszxmaenzézsi‘tr:ms:z
`
`
`
`hasme»asmaesasa.3:
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`swwwfiw-1*
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`The product itself that you see in the
` z§i§ii§<§i}4§€‘“'&w§tm23§!§§££€i-§%£i£€s?‘-‘-'s~3nmm'.'.;e
`
` stores have been marked with a circle R?
`
`
`
`A.
`Yes, and copyright 2006.
` Q.
`
`designation in this case; you're just concerned with
`
`just trademark; right?
` '9:<M:m:A:.tm5§z§M3&--=---a
`
`
`A.
`But what that does is that establishes the
`date that the item was printed was 2006, which had a
`onam-;2m$;m3&'50'
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`
`_-5..v..
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` seen that before.
`
` ssmssmxcKi1>I:I>i1§i
`
`
`A. Yeah. That's C/net Review from C/net dot
` com of the Pioneer Inno products.
`'--'esmz:sassmma-sts---'-'-
`
`
`Q.
`
`That's fine.
`
`But there is no claim about copyright
`
`.won:
`
`
`
`Q.
`
`I got it.
`And then the last previously marked
`
`circle R, and now it is December 2007.
`
`exhibit is Exhibit Number 8, and I ask if you have
`
`
`
`Is this a document that you found in your
`....»
`......,~..m.... .v -- -
`-
`...
`..._.....,..»w~ »« -- .w.__w..»vwJrw'e-V w
`- _._,_2i,.a _5.....m,,,m.,»m.
`
`
`~
`
`UNITED REPORTING, INC.
`(954) 525 — 2221
`
`11
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`
`
`uses:
` research regarding the use of this mark?
`
`
`
`how the Inno mark is used in comparison to other
`
` products of the market?
`
`
`A.
` Ipod,
`same shape and very
`I—P—O—D,
`same size,
`
`similar functions.
`
`
`
`Q.
`And in that comparison, it is comparing
`
`
`Inno with
` ->@$-e=m<.azmmmtaH--“ra--i.flSb§fl'!-..=i
`
`
` the Ipod?
`
`
`
`
` C/net, what
`xsmsxatxzszxxexéxuxééez
`
`is typed as capital I,
`lower case N—N—O, and Ipod is
`
`spelled as lower case I, capital P—O—D. All of the
`‘<1Es§R‘z¥z:'*:stx§%i:§;é2§;9¥A!W>5,$0!sirsuszgzzagtsezmmsasesa‘-
`
`
` other products are presentations from XM and/or
` Pioneer. This lower case i,
`lower case N-N-O
` throughout everything, which I believe is their
`
`
`aw;;c;::z:ai5m§i§i5i'r9Nm1fi1bz!a€Je!€é§5éE§.-£€é§-3
`
` ‘hamagma‘m::zs:2..>sasasasm.-em
`
`
`
`A.
`
`Yeah,
`
`I found it early this morning.
`
`Q.
`
`Okay. And are there any indications of
`
`They have it sitting right next to an
`
` XM or Pioneer.
`
`
`in*.mm.~=-m-.- '
`
`
`"
`
`V * mmm m.. «WW»
`
`
`UNITED REPORTING, INC.
`(954) 525 - 2221
`
`the capital Inno to the capital I—P—0-D,
`
`a-amauxum
`
`
`
`A.
`
`Actually,
`
`in this particular thing from
`
`they are doing is they are stating or it
`
`a capital I when they put it right next to the mark
`
`they changed it to
`
`proper spelling.
`
`
`Q.
`Okay. For some reason,
`
`
`Ipod?
`
`A.
`
`
`But this was from C/net. This wasn't from
`
`
`Q.
`
`I got it.
`
`
`
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`
`
`''mzsunz.zs~zmmms1-iv:{4W:u-smsm-:am;ex:;ezs;$‘:4;5:1¢;%ms:«:xz4:ssszasasasa<esa;a--mam«amamanm
`
`
`
`
`
`
` Sunwas:wPage 20
`
` And was there anything else of interest in
`
` this article that you printed up this morning
`
`
` regarding their use of the mark Inno?
`
`A.
`
`All
`
`the accessories that they are claiming
`
`
`
` ‘imam-amsscw-byM-.-»MslMi3»1%.'n':E-§.*.-e--
`
`
`
`1;:ma.:é'I.R.0-'9-1---an-samamambmvamnmnia
`
`
` heading.
`
`
`
`
`Q.
`In selling accessories to your system
` wimxrssmass-saw!‘‘‘zwsm. A.
` known as the iKno?
`mama:HU'"
`
`
` *-em»u-mxasmassrux-M=‘.-’m:a'.s'a'.-.I>a
` A. Batteries we are already selling; wiring
`
`antennas and going forward -- they have the ear
`
`;a'-.inl€éi~€Ri9fi3€7--B:
`
`
`buds, and I was going to —— we have plans for a
`headset can record, you can take it with you and you :mm-:-sesaams:=s--m=ra
`
`don't have to have the bulky unit with you.
`
`
`mm::z2.:te;:xs§¢Ww€''
`Do you know if this product Inno is a
`
`product that was made to record also?
`
`
`'-'-‘hetea:2::we-mm--'v‘a-‘-..-.s
`Yes.
`A.
`
` Q.
`
`
`there is a big lawsuit that was
` 1:52:23:-515151I-f'-
`
`A.
`Actually,
`mm m~
`
`
`
`
`under bundle and tying to their mark.
`
`
`xaraxasistwr'-'r9
`Let's talk about those accessories. Why
`was that of importance to you?
`
`Q.
`
`A.
`
`Because that's where our target market was
`
`Yes.
`
`
`
`Q.
`
`
`Can you just go through an item—by—item
`
`basis which ones would be the same?
`
`
`
`wireless headset, and the reason the wireless
`
`
`
`Q.
`
`
`
`How?
`
`.‘.'T‘S“‘
`
`~«-we WW
`
`,.,...._.,..,.,...m.~
`
`
`__.............»»-~
`
`UNITED REPORTING, INC.
`(954) 525 — 2221
`
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`25
`
`
`
`
` Page 21
`mamm;365%=£'re'-ewmilmwvsmne-2-team
`
`
` just settled because XM Radio elected not to go
` ahead and file proper copyright procedures and
`'='-ea'auim:scamsszsznsassz-as:-zaawsa«-1--14-=mvivzasa-amasaiafaia
`
`
`
`
`Press release was December 17, 2007.
`settled.
`
`
`Q.
`And I'm going to mark this document and
` ask you if you could, is that another document that
`
` nwfikwnnt
`
`
`
`
`rem‘:2;-mesmm;
`
`
`"XM Radio said on Monday it settled a
`mt-icihvm-i..3§é!$e!M3&3&W‘‘-a:e Groups and hopes to reach deals with other music
` patent infringement lawsuit filed by Universal Music
`
`
`The dispute centers around XM's portable
`companies.
` Inno" —~ and they have it as capital I,
`
`N—N~O device -~ "which can store record music from
` satellite radio."
`
`MR. GARRITY: We're going to mark that as
` Exhibit 9.
`
`the document referred to was
`(Thereupon,
`mama".-1.-;-1-
`
`
`marked for Identification as Respondent's
` Exhibit 9.)
`
`
`
`Q.
`
`
`
`licensing, and Universal Music had sued them.
`
`It
`
`you,
`
`through your research, printed out?
`
`A.
`
`Yes.
`
`I found it early this morning,
`
`updated 5:03 p.m., Monday,
`
`December 17, 2007.
`
`lower case
`
`.'=ia---zsm-;:msmam;a.ss.r:.am--9:-'-'-'-‘v-‘.-
`
`
` c.1%:avmnvammzmmasaazmsxz
`
`‘<9-3-«mia<!H!5§£!.5§A!B§§i53&a§%5€-"€-s
` document and see if you have any recollection of
`
` that document.
`
`
`
`
`Yeah.
`A.
`This is a partial print of a blog
`
`
`
`m,,,,,W,.W,,.,,
`.... mt«N4‘A\/»‘O0W‘V‘ - w-- -- -‘
`
`
`
`
`
`wagfi
`.._......\....w....W. V, vs -
`_
`g_
`_
`=54-.'
`
`UNITED REPORTING, INC.
`(954) 525 — 2221
`
`Finally, I'm going to show you one more
`
`1O
`
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`
`
`
` Page 22
`
`
`
`from Satellite Radio Techworld, whatever that is.
`
`Q.
`
`
`
`morning.
`
`
`
`
`umsrz-am:9:369:-J-uMia-9-'&+5-3-5-
`
`
`
` Inno Meets Opposition.
`ruiaémux
` an'
`And have you ever seen this document Hi»15
`before?
`méimtél-s5iA!53A3&§m<1B3--a«-‘-w-a-r:mamaxammuzaazixaum
`
`
`A. I found it late last night, early this
`
` Q.
`You printed it out yourself?
`
`
`A.
`I printed it out myself.
`
` '&-sssxxvsssmassvzrterrumzcmcarcmm-=-q-.-J.1-.-"-i‘Hmmv
`
`
`Q.
`And as part of your duties as an officer
` of the corporation,
`iKno, Inc., do you typically research uses of other marks or identification of
` your company and print out and save it as a business
`record?
` xaxaumszsma?mammzzaA2;333---‘-
`
`
`
`A.
`I have to keep all that stuff.
`I have to
`protect my company, whatever it takes to protect the
`
`
` 513'
`''
`company's assets.
`One of the company assets is the
`
` name .
`
`
`ammuva.-nu»zex€ae:€&23z£u§é:émz3<a‘IA-’-"‘---'-2ram-amammmaaammu
`
`
`
`of your company name or product?
`
`
`,.._._..
`
`I.11.A,..r._,._.....,__._._._._...,._,.........ri.i.:i__..,,__..r....-..
`
`Q.
`
`Is there in this blog any identification
`
`
`
`
`
`Yeah. There is both,A. the company's name
` iKno, its product or brand, which is spelled wrong,
`
`iKno.
`
`
`Q.
`And is there any indication that they
` found a registered use of I—K—N—0?
` A.
`
`It is not printed here, but they did
`
`
`- ' *.'-.‘::"'mmw
`
`
`" '-'°-W-=~*=-M-r-"° ‘ ' "
`MMWWW
`
`
`
`'"W’ V “ '
`
`.._v-~«-«WWW
`
`UNITED REPORTING, INC.
`(954) 525 — 2221
`
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`
`
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