Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA219015
`ESTTA Tracking number:
`06/19/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91177358
`Defendant
`The Coca-Cola Company
`Bruce W. Baber
`King & Spaulding, LLP
`1180 Peachtree Street
`Atlanta, GA 30305
`UNITED STATES
`Other Motions/Papers
`Emily Bienko Brown
`bbaber@kslaw.com, ebrown@kslaw.com, pguibault@na.ko.com, ip@kslaw.com
`/Emily Bienko Brown/
`06/19/2008
`Opp 91177358 Declaration.pdf ( 51 pages )(1090854 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA219015
`ESTTA Tracking number:
`06/19/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91177358
`Defendant
`The Coca-Cola Company
`Bruce W. Baber
`King & Spaulding, LLP
`1180 Peachtree Street
`Atlanta, GA 30305
`UNITED STATES
`Other Motions/Papers
`Emily Bienko Brown
`bbaber@kslaw.com, ebrown@kslaw.com, pguibault@na.ko.com, ip@kslaw.com
`/Emily Bienko Brown/
`06/19/2008
`Opp 91177358 Declaration.pdf ( 51 pages )(1090854 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`MATT EHRLICH and SHLOMO
`
`FRIED and/or MAYIM TOVIM,
`
`Opposers,
`
`V.
`
`THE COCA—COLA COMPANY,
`
`Applicant.
`
`\/\_/\./\/\/\./\/\../\../\,/
`
`OPPOSITION NO. 91177358
`
`DECLARATION OF BRUCE W. BABER
`
`Bruce W. Baber declares as follows:
`
`1.
`
`My name is Bruce W. Baber.
`
`I am a partner in the law firm of King
`
`& Spalding LLP and am counsel of record for applicant The Coca—Cola Company
`
`(“TCCC”) in the above—captioned matter.
`
`I give this declaration freely and
`
`voluntarily, in support of TCCC’s motion to dismiss this proceeding, filed
`
`concurrently herewith, and in opposition to the motion to extend testimony period
`
`filed herein on behalf of opposers Matt Ehrlich and Shlomo Fried and/or Mayim
`
`Tovim (“Opposers”) on May 30, 2008.
`
`2.
`
`On December 3, 2007, we served on Opposers’ counsel, Mr. Simon
`
`Klein of the firm of Klein and Suslovich, TCCC’s first set of interrogatories and
`
`first set of requests for production of documents and things (“TCCC’s Discovery
`
`
`
`Requests”) in this matter. True and correct copies of 'I‘CCC’s Discovery Requests,
`
`as served on December 3, 2007, are attached hereto as Exhibits A and B. TCCC’s
`
`interrogatories are attached as Exhibit A and TCCC’s requests for production are
`
`attached as Exhibit B.
`
`3.
`
`On December 3, 2007, I also forwarded to Mr. Klein by e—mail
`
`courtesy copies of TCCC’s Discovery Requests. A true and correct copy of my
`
`December 3, 2007 e—mail message to Mr. Klein is attached hereto as Exhibit C.
`
`4.
`
`TCCC’s Discovery Requests were served on Mr. Klein by certified
`
`US. Mail, return receipt requested. A true and correct copy ofthe “domestic
`
`return receipt” postcard that I received back from the US. Postal Service, which
`
`shows that TCCC’s Discovery Requests were received by Mr. Klein’s office on
`
`December 5, 2007, is attached hereto as Exhibit D.
`
`5.
`
`I did not receive any responses from Opposers to TCCC’s Discovery
`
`Requests on or in the days following January 7, 2008, the date by which such
`
`responses were due to be served.
`
`6.
`
`On February 14, 2008, I sent to Opposers’ counsel Mr. Klein an
`
`e—mail message in which I inquired whether Opposers had served responses to
`
`TCCC’s Discovery Requests. A true and correct copy of my February 14 message
`
`to Mr. Klein is attached as Exhibit E.
`
`
`
`7.
`
`I received no response from Mr. Klein to my February 14 e—mail
`
`message.
`
`8.
`
`On March 6, 2008, at approximately 4:00 p.m., I telephoned l\/Ir.
`
`Klein and left a voice mail message for him, asking him to call me regarding this
`
`matter at his earliest convenience.
`
`9.
`
`I received no response from Mr. Klein to my March 6 voice mail
`
`message.
`
`10.
`
`On March 7, at approximately 1:30 p.m., I telephoned Mr. Klein again
`
`and left another voice mail message, asking him to call me regarding this matter.
`
`I l.
`
`I received no response from Mr. Klein to my March 7 voice mail
`
`message.
`
`12.
`
`On March ll, at approximately 4:40 p.m., I telephoned Mr. Klein
`
`again and spoke with him. He acknowledged that he had received my earlier
`
`messages, and apologized for not responding to them.
`
`I asked Mr. Klein whether
`
`Opposers intended to respond to TCCC’s Discovery Requests, and Mr. Klein
`
`stated that he did not know the status of this matter and needed to check with
`
`“someone else” who was working on this case. Mr. Klein indicated that he would
`
`be back to me in the near future and hoped to be able to provide me with a
`
`response by late the next day.
`
`
`
`13.
`
`I did not hear back from Mr. Klein regarding Opposers’ responses to
`
`TCCC’s Discovery Requests on March 12 or any time thereafter.
`
`14.
`
`On March 20, I telephoned Mr. Klein again and left him a voice mail
`
`message to the effect that I was following up on our conversation of March I I and
`
`asked that he let me know whether Opposers intended to respond to TCCC’s
`
`Discovery Requests and, if so, when Opposers intended to respond.
`
`15.
`
`As ofthe date hereof, I have not heard back from Mr. Klein in
`
`response to my March 20 message, nor have I received any communication of any
`
`kind from him since he and I spoke on March 1 I, 2008.
`
`16.
`
`On the afternoon of May 30, 2008, I received a voice mail message
`
`from an individual who identified himself as Steven Horowitz. Mr. Horowitz’s
`
`message indicated that he had been retained by Opposers, was calling about this
`
`matter and needed urgently to speak with me that day if at all possible regarding a
`
`possible extension of Opposers’ testimony period. At approximately 3:40 p.m. on
`
`May 30, I returned Mr. Horowitz’s call and spoke with him about this matter.
`
`17.
`
`In our conversation on May 30, Mr. Horowitz asked if I would
`
`consent, on behalf of TCCC, to an extension of Opposers’ testimony period.
`
`I
`
`advised Mr. Horowitz that I would not consent to such an extension and further
`
`advised him that I planned to file a motion on behalf of TCCC to dismiss the
`
`Opposition.
`
`I advised Mr. Horowitz in our conversation that we had served
`
`
`
`discovery requests on Opposers during the discovery period, that we had never
`
`received responses to the requests, and that I had followed up unsuccessfully with
`
`Opposers’ counsel Mr. Klein on several occasions regarding the discovery
`
`responses, both by e—mail and by telephone.
`
`18.
`
`As of the date hereof, I have not received responses to TCCC’s
`
`Discovery Requests from either Mr. Klein or Mr. Horowitz or any indication from
`
`either of them that Opposers intend to provide any responses.
`
`In accordance with 28 U.S.C. § 1746, I declare under penalty of perjury
`
`under the laws of the United States of America that the foregoing is true and
`
`correct.
`
`Executed on June if, 2008.
`
`
`
`
`
`EXHIBIT A
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`)
`
`) )
`
`MATT EHRLICH and SHLOMO
`FRIED and/or MAYIM TOVIM,
`
`) OPPOSITION NO. 91177358
`)
`
`) )
`
`) )
`
`)
`
`Opposers,
`
`V.
`
`THE COCA—COLA COMPANY,
`
`Applicant.
`
`APPLICANT’S FIRST SET OF INTERROGATORIES TO OPPOSERS
`
`Pursuant to the Trademark Rules of Practice and Rule 33 of the Federal
`
`Rules of Civil Procedure, Applicant The Coca—Cola Company (“Applicant” or
`
`“TCCC”) hereby requests that Opposers Matt Ehrlich and Shlomo Fried and/or
`
`Mayim Tovim (“Opposers”) serve upon Applicant sworn answers to the
`
`Interrogatories set forth herein within thirty (30) days after the service hereof.
`
`These Interrogatories are continuing, such that any information which may
`
`be discovered subsequent to the service and filing of the answers to these
`
`Interrogatories should be brought to the attention of Applicant, through
`
`supplemental answers, within a reasonable time following such discovery, pursuant
`
`to Rule 26 of the Federal Rules of Civil Procedure.
`
`
`
`DEFINITIONS
`
`1.
`
`The terms “you,” “your,” and/or “Opposers” when used herein shall
`
`mean and refer to Opposers Matt Ehrlich, Shlomo Fried and/or Mayim Tovim, as
`
`well as Opposers’ officers, directors, employees, attorneys, agents or
`
`representatives or any other persons or entities acting or purporting to act on behalf
`
`of Opposers.
`
`2.
`
`“Applicant” or “TCCC” shall refer to Applicant The Coca-Cola
`
`Company and any persons or entities acting or purporting to act on behalf of
`
`Applicant.
`
`3.
`
`As used herein, “person” means an individual, firm, partnership,
`
`corporation, proprietorship, association, or any other organization or entity.
`
`4.
`
`As used herein, the term “identify” shall mean:
`
`(a)
`
`in connection with natural persons, to state their full names,
`
`titles, and job descriptions, if applicable, and their present or
`
`last known business and home addresses and telephone
`
`numbers;
`
`(b)
`
`in connection with firms, partnerships, corporations,
`
`proprietorships, associations, or other entities, to state their
`
`name, and each of their present or last known addresses and
`
`telephone numbers;
`
`
`
`(c)
`
`in connection with documents (which includes both documents
`
`in your possession, custody, and control, and all other
`
`documents of which you have knowledge), to describe the
`
`documents, setting forth their dates, titles, authors, addressees,
`
`parties thereto and the substance thereof, with such reasonable
`
`particularity as would be sufficient to permit them to be sought
`
`by subpoenas duces tecum or under the provisions of Rule 34 of
`
`the Federal Rules of Civil Procedure;
`
`((1)
`
`in connection with oral statements and communications, to
`
`(i) state when and where they were made; (ii) identify each of
`
`the makers and recipients thereof, in addition to all others
`
`present; (iii) indicate the medium of communication; and
`
`(iv) state their substance.
`
`5.
`
`The term “document” includes all “writings and recordings” as
`
`defined by Rule 1001 of the Federal Rules of Evidence and includes, without
`
`limitation, any kind of written, typewritten, printed, graphic, or recorded material
`
`whatsoever, including without limitation notes, memoranda, letters, reports,
`
`studies, e-mail, telegrams, publications, contracts, manuals, business plans,
`
`proposals, licenses, drawings, designs, data sheets, diaries, logs, specifications,
`
`brochures, product or service descriptions, periodicals, schematics, blueprints,
`
`
`
`recordings, summaries, pamphlets, books, prospectuses,interoffice and intra-office
`
`communications, offers, notations of any sort of conversations, working papers,
`
`applications, permits, surveys, indices, telephone calls, meeting minutes, databases,
`
`electronic files, sofiware, transcriptions of recordings, computer tapes, diskettes, or
`
`other magnetic media, bank checks, vouchers, charge slips, invoices, expense
`
`account reports, hotel charges, receipts, freight bills, agreements, corporate
`
`resolutions, minutes, books, binders, accounts, photographs, and business records.
`
`This shall include all file copies; all other non-identical copies, no matter how
`
`prepared; all drafts prepared in connection with such documents, whether used or
`
`not; and any deleted or erased documents that may be retrieved from hard drives,
`
`floppy disks, electronic back—up files, or any other back-up systems.
`
`6.
`
`The term “Opposers’ Marks” shall mean and refer to Opposers’
`
`alleged trademarks “ZERO COLA” and “ZERO CAL,” and each of them.
`
`7.
`
`The term “ZERO CAL Registration” shall mean and refer to
`
`registration number 3,156,317 issued by the U.S. Patent and Trademark Office on
`
`October 17, 2006 for the mark “Zer0 Cal” in a stylized form.
`
`8.
`
`The term “Applicant’s Mark” shall mean and refer to Applicant’s
`
`mark “COCA-COLA ZERO” as shown in U.S. Trademark Application Serial
`
`No. 78—580,598.
`
`
`
`9.
`
`The term “Applicant’s Other Zero Marks” shall mean and include any
`
`mark other than COCA-COLA ZERO that has been used or for which an
`
`application for registration has been filed by Applicant, including but not limited to
`
`the marks SPRITE ZERO, COKE ZERO, PIBB ZERO and VAULT ZERO.
`
`10.
`
`The term “Applicant’s Application” shall mean and refer to U.S.
`
`Trademark Application Serial No. 7 8-5 80,5 98 filed by Applicant for registration of
`
`the mark COCA-COLA ZERO.
`
`11. With regard to the terms defined herein, all terms used in the singular
`
`shall include the plural, and all terms used in the plural shall include the singular.
`
`12.
`
`The use of the word “or” shall mean “and” as well as “or.”
`
`INSTRUCTIONS
`
`1.
`
`In each instance where an Interrogatory is answered on information
`
`and belief, it is requested that Opposers set forth the basis for such information and
`
`belief.
`
`2.
`
`In each instance where Opposers deny knowledge or information
`
`sufficient to answer the Interrogatory, it is requested that Opposers set forth the
`
`name and address of each person, if any, known to have such knowledge or
`
`information.
`
`3.
`
`In each instance where the existence of a document is disclosed,
`
`Opposers are requested to attach a copy of such document to its Answer. If such
`
`
`
`document is not in Opposers’ possession, custody or control, it is requested that
`
`Opposers state the name and address of each person known to Opposers to have
`
`such possession, custody or control, and identify which documents are in such
`
`person’s possession, custody or control.
`
`4.
`
`In any instance in which an Interrogatory is objected to for any
`
`reason, including privilege, it is requested that all of the grounds for such objection
`
`be stated in detail and that the following information be provided:
`
`(a)
`
`for documents, state: (i) the type of document; (ii) the general
`
`subject matter of the document; (iii) the date of the document;
`
`and (iv) such other information as is sufficient to identify the
`
`document, including, where appropriate, the author of the
`
`document, the addressee of the document, and, where not
`
`apparent, the relationship of the author and addressee to each
`
`other;
`
`(b)
`
`for oral communications, state (i) the name of the person
`
`making the communication; (ii) the names of persons present
`
`while the communication was made and, where not apparent,
`
`the relationship of the persons present to the person making the
`
`communication; (iii) the date and place of communications; and
`
`(iv) the general subject matter of the communication.
`
`
`
`INTERROGATORIES
`
`INTERROGATORY NO. 1
`
`Identify all products and services on or in connection with which Opposers
`
`have used or intend to use each of Opposers’ Marks.
`
`INTERROGATORY NO. 2
`
`For each product and/or service identified in your answer to Interrogatory
`
`No. 1, state whether such product or service has been offered, sold or rendered in
`
`interstate commerce and, if so, (a) state the date on which such product or service
`
`was first provided to a customer; (b) identify the nature and extent of the products
`
`or services on or in connection with which Opposers’ Marks were used on such
`
`date; (c) state the price(s) charged for such product(s) or service(s); (d) describe the
`
`manner in which such products and/or services are provided to consumers; and (e)
`
`identify the geographic areas of the United States in which Opposers’ products or
`
`services have been offered or provided since the date of first use of Opposers’
`
`Marks.
`
`INTERROGATORY NO. 3
`
`State the date(s) of Opposers’ first use and first use in commerce of each of
`
`Opposers’ Marks, and for each such date, identify the type of products and/or
`
`services for which each of Opposers’ Marks was used. If Opposers have used any
`
`
`
`form of Opposers’ Marks other than the form shown in Opposers’ Registration,
`
`identify each such different form and provide the information requested above for
`
`each such form.
`
`INTERROGATORY NO. 4
`
`Describe the facts and circumstances surrounding Opposers’ selection,
`
`adoption, and use of each of Opposers’ Marks, including but not limited to:
`
`(3)
`
`describe the reasoning and rationale behind Opposers’ adoption of
`
`each of Opposers’ Marks;
`
`(b)
`
`identify each person who originally conceived of and/or suggested use
`
`of each of Opposers’ Marks, including each person’s name, address,
`
`and title or position;
`
`(C)
`
`identify each person involved in the selection and adoption of each of
`
`Opposers’ Marks; and
`
`(d)
`
`state whether Opposers had knowledge, prior to Opposers’ selection,
`
`adoption, and use of Opposers’ Marks, of Applicant’s Mark,
`
`Applicant’s use of Applicant’s Mark, Applicant’s products on or in
`
`connection with which Applicant’s Mark is used, any use by
`
`Applicant of any of Applicant’s Other Zero Marks, or any application
`
`filed by Applicant to register any of Applicant’s Other Zero Marks.
`
`
`
`INTERROGATORY NO. 5
`
`State whether you conducted or caused to be conducted a search, study, or
`
`any other investigation, whether formal or informal, in connection with Opposers’
`
`adoption of either of Opposers’ Marks. If so, describe the results or conclusions of
`
`such search, study, or investigation; identify all uses of, registrations of or
`
`applications to register any marks identified in such search, study or investigation;
`
`and identify each and every person involved in or having knowledge of the results
`
`of such search, study, or investigation.
`
`INTERROGATORY NO. 6
`
`For each product or service identified in your answer to lnterrogatory No. 1,
`
`identify all advertisements and/or promotional materials for such product or
`
`service which have been, or are intended to be, published, broadcast, displayed, or
`
`distributed, and for each such advertisement or promotional material:
`
`(a)
`
`state the date on which it was or will be published, broadcast,
`
`displayed, or distributed;
`
`(b)
`
`if a print media advertisement, identify the publication in which such
`
`advertisement appeared or will appear by name, date, and page
`
`number;
`
`
`
`(C)
`
`if a broadcast advertisement, identify the radio or television station or
`
`network over which such advertisement was or will be broadcast and
`
`state the length of the commercial and the date and time of broadcast;
`
`(d)
`
`if an Internet advertisement, identify the web site upon which such
`
`advertisement appeared or was displayed by name, date, and URL
`
`address; and
`
`(6)
`
`state the total amount of money spent or budgeted for such
`
`advertisement or commercial.
`
`INTERROGATORY NO. 7
`
`For each product or service identified in your answer to Interrogatory No. 1,
`
`identify all press releases, catalogs, circulars, leaflets, sales or promotional
`
`literature, brochures, bulletins, flyers, signs, sales displays, posters, point of
`
`purchase displays, and other promotional material for such product or service that
`
`have been, are, or are intended to be distributed or displayed in the United States
`
`by or on behalf of Opposers, and for each such item:
`
`(3)
`
`state each date on which, or the inclusive dates during which, said
`
`item was or is to be distributed and the manner in which said item
`
`was or is to be distributed; and
`
`(13)
`
`state the geographic area (by city and state) in which said item or
`
`copies thereof were or will be distributed or displayed.
`
`-10..
`
`
`
`INTERROGATORY NO. 8
`
`For each product or service identified in your answer to Interrogatory No. 1,
`
`state whether you have promoted such product or service at any conventions, trade
`
`shows, or exhibitions, or have any plans to do so, and if so, state the name, dates,
`
`and locations of each such convention, trade show, or exhibition.
`
`INTERROGATORY NO. 9
`
`Describe in detail the channels of trade, including the types of retail stores
`
`and other outlets, through which Opposers have sold or intend to sell products or
`
`services in connection with which Opposers have used or intend to use each of
`
`Opposers’ Marks, and describe by region or state the geographic area in which
`
`such products or services are offered for sale or sold.
`
`INTERROGATORY NO. 10
`
`For each product or service identified in your answer to Interrogatory No. 1,
`
`state the total dollar volume of sales in the United States for such products and/or
`
`services and the income derived therefrom, on a monthly and annual basis, from
`
`the date of first use of each of Opposers’ Marks to the present.
`
`INTERROGATORY NO. 1 1
`
`State Opposers’ total dollar value of advertising and promotional
`
`expenditures in connection with each of Opposers’ Marks and/or the products or
`
`services identified in your answer to Interrogatory No. l, on a monthly and annual
`
`basis, from the first date of such expenditures to the present.
`
`-11-
`
`
`
`INTERROGATORY NO. 12
`
`Identify all tags, labels, invoices, decals, packaging, cartons, point of
`
`purchase displays, web sites, and other written materials which show Opposers’
`
`use of each of Opposers’ Marks in the United States in connection with Opposers’
`
`products or services from the date of first use of such marks to the present, and
`
`specify the periods during which each identified item was allegedly used. In lieu
`
`of identifying each such document and/or item, an actual sample of each may be
`
`attached to your answers to these Interrogatories, with dates and duration of use
`
`indicated.
`
`INTERROGATORY NO. 13
`
`State the date on which Opposers first learned of Applicant’s use of
`
`Applicant’s Mark, Applicant’s use of any of Applicant’s Other Zero Marks, or any
`
`application filed by Applicant to register any of Applicant’s Other Zero Marks;
`
`identify all persons involved in the acquisition of such knowledge by Opposers;
`
`and describe the circumstances through which Opposers acquired such knowledge.
`
`INTERROGATORY NO. 14
`
`State whether you, or any individual(s) or other company(s) or
`
`organization(s) acting on your behalf, have conducted or intend to conduct a
`
`survey, investigation, study, or market test (collectively, “Survey”) relating to
`
`Applicant’s Mark, Applicant’s Other Zero Marks or either of Opposers’ Marks,
`
`-12..
`
`
`
`including but not limited to surveys relating to public recognition, consumer
`
`acceptance, secondary meaning, or confusion, and if so, identify:
`
`(a)
`
`each individual or entity who was or is in charge of conducting each
`
`such Survey;
`
`(b)
`
`each report or summary of the results thereof, whether written or oral
`
`and, if oral, state the contents thereof and identify the persons
`
`making and receiving such report or summary and each person
`
`having knowledge thereof; and
`
`(c)
`
`each document relating to, reflecting, supporting, or generated in the
`
`consideration, planning, conduct, or reporting of each such Survey,
`
`or the results or substance thereof.
`
`INTERROGATORY NO. l5
`
`Identify each person employed by or otherwise associated or affiliated with
`
`Opposers who is knowledgeable regarding and, if applicable, has day-to-day
`
`operational responsibility for each of the following:
`
`(a)
`
`the history and business operations of Opposers;
`
`(b)
`
`the marketing, advertising and promotional activities of Opposers,
`
`including but not limited to marketing, advertising and promotional
`
`activities relating to use of either of Opposers’ Marks;
`
`(c)
`
`Opposers’ use of each of Opposers’ Marks;
`
`-13-
`
`
`
`(d)
`
`the channels of trade and distribution methods used by Opposers for
`
`its products;
`
`(e)
`
`the unit and dollar volume of sales of any products or services by
`
`Opposers since the time Opposers began use of Opposers’ Marks;
`
`(f)
`
`the selection and adoption of each of Opposers’ Marks; and
`
`(g)
`
`Opposers’ first knowledge of Applicant’s use of App1icant’s Mark,
`
`App1icant’s Application, App1icant’s use of any of Applicant’s Other
`
`Zero Marks, or any applications filed by Applicant for registration of
`
`any of Applicant’s Other Zero Marks.
`
`INTERROGATORY NO. 16
`
`Identify each fact witness whose testimony you may or will rely upon in
`
`connection with any issue in this proceeding, and with respect to each such witness
`
`state:
`
`(a)
`
`the subject matter on which he or she is expected to testify; and
`
`(b)
`
`a summary of the testimony of each such witness.
`
`INTERROGATORY NO. 17
`
`Identify each expert witness whose testimony you may or will rely upon in
`
`connection with any issue in this proceeding, and with respect to each such witness
`
`state:
`
`(a)
`
`the subject matter on which he or she is expected to testify; and
`
`-14-
`
`
`
`(b)
`
`the substance of the facts and opinions on which the expert is
`
`expected to testify, and a summary of the grounds for each opinion.
`
`INTERROGATORY NO. 18
`
`If Opposers, or any of Opposers’ agents, representatives, or customers, have
`
`received a written or verbal order, inquiry, complaint, or other communication that
`
`was intended for Applicant, or that inquired whether Opposers or any products or
`
`services sold or distributed by Opposers is connected, affiliated, associated, or
`
`sponsored by Applicant, identify:
`
`(a)
`
`by whom it was communicated;
`
`(b)
`
`the date and place thereof;
`
`(C)
`
`the nature and substance thereof;
`
`(d)
`
`the manner in which the incident came to Opposers’ attention,
`
`including, without limitation, the method of communication; and
`
`(c)
`
`any and all documents embodying, relating to, arising out of, or
`
`connected with the communication.
`
`INTERROGATORY NO. 19
`
`Identify any misdirected mail, telephone calls, orders, inquiries, or
`
`complaints that have been received by Opposers and were intended for Applicant,
`
`and identify the person from whom the mail, call, order, inquiry, or complaint was
`
`-15-
`
`
`
`received; identify such person’s name and address, if known; and describe the
`
`contents of the misdirected communication.
`
`INTERROGATORY NO. 20
`
`Identify any and all grants, licenses, and assignments concerning either of
`
`Opposers’ Marks and all documents referring or relating to each such grant,
`
`license, and assignment and any amendment or modification thereof.
`
`INTERROGATORY NO. 21
`
`Identify all domain names that are registered or owned by Opposers, and, for
`
`each domain name identified, provide the date such ownership or registration
`
`commenced.
`
`INTERROGATORY NO. 22
`
`Identify all persons or entities with whom Opposers, or any entity controlled
`
`by or associated with Opposers, have had any intellectual property dispute of any
`
`kind, including but not limited to disputes involving claims of trademark
`
`infringement, copyright infringement, and/or patent infringement.
`
`INTERROGATORY NO. 23
`
`Identify by complete legal name the person or entity that you contend is the
`
`owner of the ZERO CAL Registration and, if any such owner is an entity that is not
`
`an individual, identify the nature of the entity (i.e., whether it is a corporation,
`
`limited liability company, partnership, proprietorship or some other form of entity),
`
`identify the state under the laws of which such entity was formed, state the date the
`
`-16..
`
`
`
`entity was formed, and identify all documents that relate to the formation of the
`
`entity.
`
`INTERROGATORY NO. 24
`
`State whether a partnership or other legal entity exists that is named either
`
`“Matt Ehrlich/Shlomo Fried” or “Ehrlich & Fried,” and, if so, identify the nature of
`
`the entity (i.e., whether it is corporation, limited liability company, partnership,
`
`proprietorship or some other form of entity), identify the state under the laws of
`
`which such entity was formed, state the date the entity was formed, and identify all
`
`documents that relate to the formation of the entity
`
`INTERROGATORY NO. 25
`
`Identify by complete legal name the person(s), entity or entities that you
`
`contend are the opposer(s) in this proceeding and, if any such opposer is an entity
`
`that is not an individual, identify the nature of the entity (i.e., whether it is a
`
`corporation, limited liability company, partnership, proprietorship or some other
`
`form of entity), identify the state under the laws of which such entity was formed,
`
`state the date the entity was formed, and identify all documents that relate to the
`
`formation of the entity.
`
`INTERROGATORY NO. 26
`
`Identify by complete legal name any entity with which any of Opposers is
`
`associated that uses the name “Mayim Tovim,” identify the nature of the entity
`
`(i.e., whether it is a corporation, limited liability company, partnership,
`
`-17-
`
`
`
`proprietorship or some other form of entity), identify the state under the laws of
`
`which such entity was formed, state the date the entity was formed, identify all
`
`documents that relate to the formation of the entity, and describe in detail the ways
`
`in which Opposers are associated with such entity and the ways in which such
`
`entity is or has been involved in the manufacture, distribution and sale of products
`
`in connection with which either of Opposers’ Marks is or has been used.
`
`INTERROGATORY NO. 27
`
`Identify all persons and legal entities that are or have been involved in any
`
`way in the manufacture, distribution and sale of products in connection with which
`
`either of Opposers’ Marks is or has been used, and, for each such person or entity,
`
`describe the nature of the person’s or entity’s involvement, state the date on which
`
`such involvement began, and identify the persons most knowledgeable regarding
`
`the person’s or entity’s involvement.
`
`INTERROGATORY NO. 28
`
`State whether any person associated with or acting on behalf of any of
`
`Opposers communicated with the U.S. Patent and Trademark Office at any time
`
`between December 1, 2005 and July 12, 2006 regarding the application, Serial
`
`Number 78—524,77l , on which the ZERO CAL Registration was based and, if any
`
`such communications occurred, identify each such communication, identify all
`
`-13-
`
`
`
`persons who participated in each such communication and describe the substance
`
`of each such communication.
`
`INTERROGATORY NO. 29
`
`Other than uses of Opposers’ Marks that are identified in response to the
`
`interrogatories above, identify any other marks used by Opposers that include the
`
`word “zero” and, for each such mark, identify the type of product on or in
`
`connection with which such mark has been used, the dates of use of such mark, and
`
`all packaging, promotional and advertising materials that reflect or relate to use of
`
`such mark.
`
`INTERROGATORY NO. 30
`
`Identify with particularity any and all uses known to Opposers, other than
`
`uses by Opposers and uses by Applicant, of any mark for food or beverage
`
`products that includes the word “zero.”
`
`INTERROGATORY NO. 31
`
`With respect to each of the foregoing Interrogatories and the subparts
`
`thereof:
`
`(a)
`
`identify each person from whom information was obtained to answer
`
`each Interrogatory;
`
`(b)
`
`identify the person(s) who gathered the information used in preparing
`
`Opposers’ Answers to these Interrogatories;
`
`-19-
`
`
`
`(c)
`
`identify the person who prepared and/or participated in the
`
`preparation of the Answer to each Interrogatory;
`
`(d)
`
`identify the person(s) having responsibility for verifying the accuracy
`
`of Opposers’ Answers to these Interrogatoriesg
`
`(e)
`
`identify the documents and records consulted to obtain such
`
`information; and
`
`(f)
`
`where no information or only partial information is given in such
`
`Answer, describe the efforts made to locate information responsive to
`
`such Interrogatory.
`
`Dated: December 3, 2007
`
`1180 Peachtree Street, N.E.
`Atlanta, Georgia 30309
`Telephone: (404) 572—460O
`Facsimile: (404) 572-5145
`
`KING & SPALDING LP
`
` .
`
`er
`
`Emily Bienko Brown
`
`Attorneys for Applicant
`THE COCA-COLA COMPANY
`
`-20-
`
`
`
`CERTIFICATE OF SERVICE
`
`This is to certify that I have this day served the foregoing Applicant’s First
`
`Set Of Interrogatories To Opposers on Opposers, by causing a true and correct
`
`copy thereof to be deposited in the United States Mail, postage prepaid, addressed
`
`to Opposers’ counsel of record as follows:
`
`Mr. Simon Klein
`
`Suslovich & Klein LLP
`
`1507 Avenue M
`
`Brooklyn, New York 11230
`
`This 3rd day of December, 2007.
`
`Bruc
`
`.
`
`er
`
`
`
`EXHIBIT B
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`MATT EHRLICH and SHLOMO
`
`FRIED and/or MAYIM TOVIM,
`
`Opposers,
`
`OPPOSITION NO. 91 177358
`
`V.
`
`THE COCA-COLA COMPANY,
`
`Applicant.
`
`APPLICANT’S FIRST SET OF REQUESTS FOR
`PRODUCTION OF DOCUMENTS AND THINGS TO OPPOSERS
`
`Pursuant to the Trademark Rules of Practice and Rule 34 of the Federal
`
`Rules of Civil Procedure, Applicant The Coca—Cola Company (“Opposer” or
`
`“TCCC”) hereby requests that Opposers Matt Ehrlich and Shlomo Fried and/or
`
`Mayim Tovim (“Opposers”) produce for the purpose of inspection and copying at
`
`the office of King & Spalding, l 185 Avenue of the Americas, New York, New
`
`York 10036, or at such other time and place as may be agreed to by the parties in
`
`writing, within thirty (30) days after the service hereof, the documents and/or
`
`things described below that are in the possession, custody, or control of Opposers
`
`or Opposers’ agents or attorneys.
`
`
`
`DEFINITIONS
`
`1.
`
`The terms “you,” “your,” and/or “Opposers” when used herein shall
`
`mean and refer to Opposers Matt Ehrlich, Shlomo Fried and/or Mayim Tovim, as
`
`well as Opposers’ officers, directors, employees, attorneys, agents or
`
`representatives or any other persons or entities acting or purporting to act on behalf
`
`of Opposers.
`
`2.
`
`“Applicant” or “TCCC” shall refer to Applicant The Coca-Cola
`
`Company and any persons or entities acting or purporting to act on behalf of
`
`Opposer.
`
`3.
`
`The term “document” includes all “writings and recordings” as
`
`defined by Rule 1001 of the Federal Rules of Evidence and includes, without
`
`limitation, any kind of written, typ
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