Gonnou, HERLANDS,
`RANDOLPH & Cox LLP
`
`ATTORNEYS AT LAW
`
`December 18, 2008
`
`BOX TTAB NO FEE
`
`Commissioner for Trademarks
`
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`Re:
`
`GTFM, Inc. v. Stephanie Seems
`Opposition No. 91179611
`:3; 7’l0‘7*€0éi}&
`
`Dear Madam or Sir:
`
`We are counsel to the Opposer in this trademark opposition proceeding.
`Enclosed is a certified copy of the testimony deposition transcript of Lawrence Blenden,
`Esq. dated December 3, 2008, the exhibits thereto, a certificate by the officer before
`whom the deposition was taken, a certificate of service of a copy of such deposition
`transcript and exhibits upon Applicant, a notice of filing and a certificate of service of
`such notice of filing.
`
`The court reporter sent the deposition transcript to our office rather than to the
`TTAB. Accordingly, we obtained the witness’s signature, served a copy upon adverse
`counsel and are now filing the original documents with the TTAB.
`
`We trust the testimony deposition is acceptable. Please call the undersigned
`with any questions concerning the foregoing.
`
`Sincerely,
`
`DvLM1r,Vl/GA/\
`
`Pete’ J- V'a“”'“
`
`Illllllllllllllllllllllllll||ll|ll|||lll|ll||lllll
`
`12-23-2008
`
`355 LEXINGTON AVENUE / 10TH FLOOR ° NEW YORK, NY 10017 ' PHONE (212) 986-1200 ° FAX (212) 983-0772
`
`

`
`Certificate Pursuant to 37 CFR §2.123(fl
`
`ss.:
`
`) )
`
`)
`
`STATE OF NEW YORK
`
`COUNTY OF NEW YORK
`
`l, Linda Salzman, a Notary Public within and for the State of New York do hereby
`
`certify:
`
`That Lawrence Blenden, the witness whose deposition is hereinbefore set forth,
`
`was duly sworn by me, that such deposition is a true record of the testimony given by
`
`such witness and taken down by me and that I am not disqualified as specified in Rule
`
`28 of the Federal Rules of Civil Procedure.
`
`That none of the adverse parties were present at such deposition.
`
`That the deposition took place on December 3, 2008, commencing at 10:30 a.m.
`
`at the offices of Gordon, Herlands, Randolph & Cox, LLP, 355 Lexington Avenue, New
`
`York, New York 10017.
`
`IN WITNESS WHEREOF, I have hereunto set my hand this 3”’ day of
`
`December, 2008.
`
`§(~Kg:/‘r7/\?.*‘--\-I
`
`inda Salzman
`
`

`
`Original Transcript
`
`IN THE UNITED STATES
`PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`GTFM, INC.,
`
`Opposer,
`
`vs.
`
`STEPHANIE SEEMS,
`
`Applicant.
`
`Opposition No.
`91 179611
`
`DEPOSITION OF
`
`LAWRENCE PHILIP BLENDEN
`
`New York, New York
`
`Wednesday, December 3, 2008
`
`Reported by:
`Linda Salzman
`
`6‘
`
`ESQUIRE
`
`DEPOSITION SERVICES‘-
`
`%).WLEl&§ALE2
`
`Telephone:
`Toll Free:
`Facsimile:
`
`212.687.8010
`800.944.9454
`212.557.5972
`
`One Penn Plaza
`Suite 4715
`New York, N.Y.10119
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`December 3, 2008
`
`10:53 a.m.
`
`Deposition of LAWRENCE BLENDEN,
`
`the
`
`witness herein, held at
`
`the offices of
`
`GORDON, HERLANDS, RANDOLPH & COX, LLP,
`
`355 Lexington Avenue, New York, New York,
`
`pursuant
`
`to Notice of Testimony
`
`Deposition, before Linda Salzman,
`
`a
`
`Notary Public of
`
`the State of New York.
`
`$
`E s Q U I R E
`
`DEPOSITION ssavxcasw
`
`Bg>.vm&<3_AL_Q
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneiififi 373:?
`
`NeWY0|'k,NY10119
`www.brownga||o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`A P
`
`P E A R A N C E S:
`
`GORDON, HERLANDS, RANDOLPH & COX,
`
`LLP
`
`Attorneys for Opposer
`
`355 Lexington Avenue
`
`New York, New York 10017
`
`PETER J. VRANUM, ESQ.
`
`E
`DEPOSITION SERVICES‘ BROWN&GALLO
`ESQUIRE
`
`Toll Free: 800.944.9454
`Facsimile: 212.557.5972
`
`Suite 4715
`One Penn Plaza
`New York, NY 10119
`www.brownga|lo.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`IT IS HEREBY STIPULATED AND AGREED,
`
`by and between the attorneys for the
`
`respective parties herein,
`
`that filing
`
`and sealing be and the same are hereby
`
`waived.
`
`IT IS FURTHER STIPULATED AND AGREED
`
`that all objections, except as to the
`
`form of
`
`the question, shall be reserved
`
`to the time of
`
`the trial.
`
`IT IS FURTHER STIPULATED AND AGREED
`
`that
`
`the within deposition may be sworn
`
`to and signed before any officer
`
`.
`
`authorized to administer an oath, with
`
`the same force and effect as if signed
`
`and sworn to before the Court.
`
`0
`
`E
`E s Q u I R E
`
`DEPOSITION SERVICES‘
`
`BR<iI&§A~_L2
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneiziffi 33;?
`
`NeWY0|'k.NY10119
`www.brownga|lo.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`0
`
`L A W R E N C E
`
`B L E N D E N,
`
`called as a witness, having been duly
`
`affirmed by a Notary Public, was examined
`
`and testified as follows:
`
`MR. VRANUM:
`
`I would like to mark
`
`this Plaintiff's Exhibit 1.
`
`(Plaintiff's Exhibit 1, Notice of
`
`Testimony Deposition dated 11/19/08,
`
`marked for identification, as of
`
`this
`
`date.)
`
`MR. VRANUM: Plaintiff's Exhibit
`
`1
`
`is the Opposer's Notice of Testimony
`
`Deposition dated November 19, 2008.
`
`The
`
`document
`
`includes a certificate of
`
`service that
`
`the document was served
`
`upon the applicant by Express Mail on
`
`November 19, 2008 upon Yano Rubenstein,
`
`who is the attorney of record for the
`
`applicant, and it sets forth the
`
`deposition date of December 3rd, 2008 at
`
`10:30 a.m.
`
`I haven't been contacted by the
`
`applicant's attorney regarding this
`
`deposition. We've waited now,
`
`the time
`
`0
`
`E
`Es gums @I&§1;n>
`
`DEPOSITION SERVICES‘
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneiéfiifiéii
`
`NeWY°|'k; NY10119
`www.browngal|o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008'
`
`6
`
`L. Blenden
`
`is 7 minutes to 11,
`
`so we'll start.
`
`EXAJdINA1K[ON']BY
`
`MR. VRANUM:
`
`Q.
`
`Please state your full name for the
`
`A.
`
`Q.
`
`A.
`
`Lawrence Philip Blenden.
`
`And what's your address?
`
`My business address is 350 Fifth
`
`Avenue, suite 6617, New York, New York.
`
`Q.
`
`Would you please describe your
`
`education?
`
`A.
`
`I went
`
`to Rutgers College, where I
`
`graduated with a bachelor of arts, majors of
`
`economics and political science.
`
`After college,
`I went
`to law school
`and graduated the Benjamin N. Cardozfioschool
`
`$96
`
`of Law, with a juris doctorate degree.
`
`Q.
`
`Would you describe your work
`
`experience?
`
`A.
`
`Since passing the bar in 1986,
`
`immediately following graduation,
`
`I was
`
`in
`
`private practice as an attorney for
`
`approximately 13 years.
`
`After that,
`
`I became ——
`
`in August
`
`Toll Free: 800.944.9454
`
`E
`E S Q U I R E
`
`marosxnon SERVICES‘
`
`“~°
`
`Facsimile: 212.557.5972
`One Penn Plaza
`
`Suite 4715
`
`NQWYOFKNY 10119
`www.browngal|o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`-
`
`0
`
`7
`
`L. Blenden
`
`of
`
`'99,
`
`in 1999,
`
`I became general counsel of
`
`GTFM,
`
`Inc.
`
`Q.
`
`What are your responsibilities at
`
`GTFM as general counsel?
`
`A.
`
`As general counsel of GTFM,
`
`I
`
`manage the business and legal affairs of
`
`theqflé
`
`company.
`
`I
`
`am also responsible for managing,
`
`maintaining the intellectual property of
`
`the
`
`company, namely the FUBU trademarks and the
`
`FUBU—related trademarks.
`
`I'm also responsible for overseeing
`
`anti—counterfeiting efforts domestically and
`
`0
`
`abroad of
`
`the FUBU trademarks and
`
`FUBU—related trademarks.
`
`And I'm also
`
`involved in the licensing of
`
`the FUBU
`
`trademarks, both domestically and abroad.
`
`Q.
`
`So in that capacity, you're
`
`familiar with the marketing and sales of
`
`the
`
`products of GTFM,
`
`Inc.?
`
`A.
`
`Yes.
`
`I'm also familiar with the
`
`marketing and sales of all FUBU branded
`
`products,
`
`regardless of whether er—net
`
`they're produced by GTFM or any of their
`
`licensees or sublicensees.
`
`0
`
`E
`E s Q U I R E @814
`
`DEPOSITION SERVICES‘
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneigml?-=r1z:
`
`NeWY0Fk/NY10119
`www.browngal|o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3,
`
`2008
`
`8
`
`L. Blenden
`
`Q.
`
`And you have access to the business
`
`records of
`
`the company?
`
`A.
`
`Q.
`
`A.
`
`Yes,
`
`I do.
`
`What
`
`trademarks does GTFM own?
`
`GTFM owns
`
`the FUBU trademark,
`
`the
`
`FUBU trademark and design. Actually,
`
`they
`
`own a whole host of FUBU trademarks and
`
`FUBU—related trademarks in a variety of
`
`classes, both within the United States and
`
`around the world.
`
`MR. VRANUM:
`
`I would like to mark
`
`this as Exhibit 2.
`
`(Plaintiff's Exhibit 2,
`
`FUBU
`
`trademark, marked for identification, as
`
`of this date.)
`
`Q.
`
`Could you please identify Exhibit
`
`A.
`
`Plaintiff's Exhibit
`
`2
`
`is a copy of
`
`the FUBU trademark as registered in the
`
`United States Patent and Trademark Office,
`
`registration number 2403324.
`
`Q.
`
`And is that
`
`trademark currently
`
`valid and subsisting?
`
`A.
`
`Yes.
`
`This FUBU trademark is valid
`
`E
`DEPOSITION SERVICES‘ BROWN&GALLO
`ESQUIRE
`
`Toll Free: 800.944.9454
`Facsimile: 212.557.5972
`
`Suite 4715
`One Penn Plaza
`New York, NY 10119
`www.browngaI|o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`9
`
`L. Blenden
`
`and subsisting, and I do believe also that
`
`GTFM,
`
`Inc. has filed its affidavits under
`
`Section 8 and Section 15 for this trademark.
`
`Q.
`
`What goods does the trademark
`
`A.
`
`This particular trademark covers
`
`goods in international class 25 for clothing,
`
`namely shirts, vests, sweaters, shoes, caps,
`
`bandanas, shorts, sweatshirts, pants, belts
`
`for clothing, socks,
`
`swimwear,
`
`jackets,
`
`rainwear, blouses, dresses,
`
`footwear,
`
`hosiery, scarves, hats, headbands, pajamas
`
`and sleepwear.
`
`Q.
`
`In addition to those products, what
`
`products does GTFM sell bearing the FUBU
`
`marks?
`
`MR. VRANUM: Off
`
`the record.
`
`(Whereupon, an off—the—record
`
`discussion was held.)
`
`MR. VRANUM:
`
`I will Withdraw that
`
`question.
`
`Q.
`
`In addition to those products, what
`
`other FUBU branded products are sold in the
`
`United States?
`
`Toll Free: 800.944.9454
`
`E
`E S Q U I R E
`
`DEPOSITION SERVICES‘
`
`W3
`
`Facsimile: 212.557.5972
`One Penn Plaza
`
`Suite 4715
`
`NeWY0Fk;NY10119
`www.brownga||o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`
`
`L. Blenden
`
`10
`
`A.
`
`In addition to those products,
`
`
`
`footwear, backpacks, handbags, belts, caps,
`
`headwear,
`
`jackets, outerwear,
`
`as well as
`
`other products that don't really come to mind
`
`
`
`
`right now.
`
`Q.
`
`Does GTFM license the FUBU brand?
`
`
`
`
`
`
`
`A.
`
`Yes, GTFM does license the FUBU
`
`brand.
`
`GTFM licenses the FUBU brand, not
`
`only to GTFM, LLC, but also to a variety of
`
`
`
`sublicensees through GTFM, LLC for a variety
`
`of products to be sold, not only throughout
`
`
`
`the United States, but worldwide.
`
`However, specifically in the United States there are licenses for footwear,
`
`for
`
`
`
`tuxedos
`boys‘ suits,
`for mens'
`formal—wear
` and the like,
`ladies‘
` outerwear, children's wear,
`
`for ladies‘ wear,
`
`infant wear,
`
`
`
`girls‘ wear, headwear, caps —— which include
`
`
`
`
`
`
`
`Q. With respect
`
`to the license
`
`
`products, does GTFM exercise control over the
`
`
`
`production of
`
`them?
`
`A.
`
`Yes, GTFM is responsible for
`
`E
`ESQUIRE
`DEPOSITION SERVICES‘
`
`BROWN &GALLO
`
`Toll Free: 800.944.9454
`FacsHnHe:212.557.5972
`
`Suite 4715
`One Penn Plaza
`New York, NY 10119
`www.brownga|lo.com
`
`
`
`
`caps,
`licenses.
`
`and domestically those are the
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
` L. Blenden
`
`11
`
`
`
`overseeing all of its licensees, and
`
`
`
`maintaining and keeping a careful eye over
`
`the quality of
`
`the mark and control of
`
`the
`
`mark.
`
`Through what channels of
`
`trade does
`
`
`
` Q.
`GTFM sell the FUBU products?
`
`
`A. Well,
`the FUBU products are sold by
`
`
`
`
`
`
` including but not
`
`GTFM and all of
`
`the FUBU licensees through
`
`various department stores throughout
`
`the
`
`country, specialty stores,
`
`to name a
`
`few,
`
`limited to Marshalls,
`
`TJMaxx, Burlington Coat Factory, Ross Stores,
`
`Kids Town and Bealls, B—E—A-L—L—S, and
`through hundreds of retailers throughout
`the
`
`
`
`country.
`
`
`Q.
`Are they sold over the internet?
` A.
`FUBU products,
`some FUBU products
` are sold via the internet as well.
` Over how broad a geographical
`Q.
`
`
`
`
`are they sold?
`
` Within the United States,
`A.
`
`likely sold through every state in the
`country.
`
`Q.
`What
`forms of promotion does GTFM
`
`
`most
`
`E
`ESQUIRE
`DEPOSITION SERVICES"
`
`BROWN &GALLO
`
`Toll Free: 800.944.9454
`Facsimile: 212.557.5972
`
`SuRe471S
`OnePennPmza
`New York, NY 10119
`www.brownga||o.com
`
`area
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008’
`
`12
`
`L. Blenden
`
`engage in with respect
`
`to the FUBU products?
`
`A.
`
`GTFM,
`
`through itself and its
`
`licensees, promote and market
`
`the FUBU
`
`products through print advertising,
`
`billboards, posters, point of purchase
`
`displays, also through music videos, which
`
`air domestically through a number of music
`
`channels, MTV, BET and a whole host of
`
`others.
`
`In addition, we have a practice of
`
`clothing celebrities ranging from actors to
`
`sports celebrities.
`
`They wear
`
`the product
`
`out
`
`in the streets when they're going to
`
`clubs or whether they're appearing in
`
`concerts, award shows, or television specials
`
`or
`
`interviews,
`
`so people throughout
`
`the
`
`country will see them actually wear
`
`the
`
`product.
`
`We also clothe actors in a variety
`
`of
`
`television shows and movies which are
`
`shown nationally across the United States and
`
`abroad.
`
`MR. VRANUM:
`
`I would like to mark
`
`this as Exhibit 3.
`
`$
`ESQUIRE
`DEPOSXTION SERVICES‘
`
`BROWN&GALLO
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`
`Suite 47 1 5
`One Penn Plaza
`New York, NY 10119
`www.browngal|o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`0
`
`13
`
`L. Blenden
`
`(Plaintiff's Exhibit 3, Copies of
`
`web pages from FUBU website, marked for
`
`identification, as of
`
`this date.)
`
`Q.
`
`I'm giving you Plaintiff's Exhibit
`
`Can you just
`
`take a
`
`look at it and
`
`identify what it is?
`
`A.
`
`Plaintiff's Exhibit
`
`3 are copies of
`
`various web pages from the FUBU website.
`
`Q.
`
`A.
`
`Which is found where?
`
`The FUBU website is found on the
`
`internet at www.fubu.com.
`
`‘
`
`Q.
`
`How long has that website been
`
`maintained?
`
`A.
`
`I believe that website has been
`
`live since 1999.
`
`It's gone through a variety
`
`of changes and updates since that
`
`time, but
`
`I
`
`believe we went
`
`live in 1999.
`
`Q.
`
`And FUBU products are shown on the
`
`A.
`
`FUBU products are shown on the
`
`site. Yes,
`
`they are.
`
`MR. VRANUM:
`
`Please mark this as
`
`Exhibit 4.
`
`0
`
`$
`E 5 Q U I R E
`
`DEPOSITION SERVICES‘
`
`BROWN&GALLO
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`5”” ‘"15
`
`One Penn Plaza
`NeWY0|’k, NY10119
`www.browngaIlo .com
`
`

`
`Lawrence Phillip Blenden
`
`December 3,
`
`2008
`
`14
`
`L. Blenden
`
`(Plaintiff's Exhibit 4, Variety of
`
`FUBU products, marked for
`
`identification, as of this date.)
`
`Q.
`
`On Plaintiff's Exhibit 4, could you
`
`tell us what it consists of?
`
`A.
`
`Plaintiff's Exhibit
`
`4
`
`shows a
`
`photocopy of
`
`a variety of FUBU, what we call
`
`trims and hangtags,
`
`labels.
`
`One is FUBU the
`
`collection, one is FUBU the collection since
`
`1992, one is a
`
`—— one is a main label
`
`from a
`
`pant or jean.
`
`There are two hangtags that
`
`are price tags or what we call UPC tags.
`
`MR. VRANUM:
`
`Please mark this as
`
`Plaintiff's Exhibit 5.
`
`(Plaintiff's Exhibit 5, Pictures of
`
`clothing, marked for identification, as
`
`of
`
`this date.)
`
`Q.
`
`Plaintiff's Exhibit
`
`5 consists of
`
`pictures of, several pictures of clothing.
`
`Could you please tell us what you
`
`see there?
`
`A.
`
`Plaintiff's Exhibit
`
`5
`
`shows a
`
`variety of FUBU clothing,
`
`including jerseys,
`
`headwear, socks, sweatshirts,
`
`jackets,
`
`Esqume wvl/5&§:~@
`
`DEPOSITXON SERVICES‘
`
`Toll Free: 800.944.9454
`Facsimile: 212.557.5972
`
`Suite 4715
`One Penn Plaza
`New York, NY 10119
`www.browngal|o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`.
`
`0
`
`15
`
`L. Blenden
`
`T—shirts and actually a backpack.
`
`Q.
`
`Are these representative of
`
`the way
`
`the FUBU mark is used in commerce?
`
`A.
`
`Yes,
`
`they are.
`
`Q. With respect
`
`to the sales and
`
`promotion of
`
`the FUBU items, do you have
`
`sales figures for some of
`
`the recent years
`
`for FUBU branded merchandise in the United
`
`States?
`
`A.
`
`Q.
`
`A.
`
`Yes,
`
`I do.
`
`Could you state those for the
`
`In 1999, U.S. retail sales exceeded
`
`$300 million.
`
`In
`
`exceeded $300
`
`exceeded $300
`
`exceeded $300
`
`exceeded $200
`
`In 2005, 2006 and 2007, retail
`
`sales exceeded $100 million in each of
`
`those
`
`o
`
`$
`Esquma
`
`DEPOSITION SERVICES‘
`
`P>Ifl:I&§A_L@
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneiéfififiéii
`
`NeWY0|'k;NY10119
`www.browngal|o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`.
`
`16
`
`L. Blenden
`
`Q.
`
`And did FUBU engage in promotion
`
`expenditures for promotion of
`
`the FUBU brand
`
`in the United States during those years?
`
`A.
`
`Yes,
`
`it did.
`
`Our promotional
`
`expenditures worldwide since,
`
`let's say,
`
`2001, have been for 2001, 7,441,000.
`
`For 2002, 8,030,000.
`
`For 2003, 4,200,000.
`
`For 2004, 2,500,000.
`
`For 2005, 1,550,000.
`
`0
`
`don't have an exact figure.
`
`It's close to or
`
`For 2006, 1,650,000, and 2007,
`
`I
`
`exceeding $1 million.
`
`Now, of
`
`those worldwide figures,
`
`approximately 75 percent
`
`—— actually at
`
`least
`
`75 percent of
`
`those dollars are spent for
`
`promotion and advertising and marketing
`
`within the United States.
`
`MR. VRANUM:
`
`Please mark this as
`
`Plaintiff's Exhibit 6.
`
`(Plaintiff's Exhibit 6,
`
`FUBU
`
`advertisements, marked for
`
`identification, as of
`
`this date.)
`
`.
`
`$
`E s Q u I R E
`
`DEPOSITION SERVICES‘
`
`§B%I&w
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneizfifi 37:22
`
`NeWY0|'k,NY10119
`www.brownga||o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`O
`
`17
`
`L. Blenden
`
`Q.
`
`Mr. Blenden, could you please
`
`identify what Plaintiff's Exhibit
`
`6
`
`is?
`
`A.
`
`Plaintiff's Exhibit
`
`6 consists of
`
`six pages of
`
`a variety of FUBU
`
`advertisements.
`
`Q.
`
`Are these representative of
`
`the
`
`type of print advertisements that FUBU has
`
`made over the years?
`
`A.
`
`Q.
`
`Yes.
`
`And these ads would be placed in
`
`various magazines?
`
`A.
`
`These ads have been used in a
`
`0
`
`Variety of magazines, national magazines, and
`
`international magazines as well, point of
`
`purchase displays, posters, and I also
`
`believe —— and they have been used on the
`
`FUBU website from time to time.
`
`MR. VRANUM: Mark this 7.
`
`(Plaintiff's Exhibit 7, Slam
`
`magazine ad, marked for identification,
`
`as of this date.)
`
`Q.
`
`Could you please identify
`
`Plaintiff's Exhibit 7?
`
`A.
`
`Plaintiff's Exhibit
`
`7
`
`is a recent
`
`0
`
`E
`E s Q U I R E
`
`DEPOSITION SERVICES‘
`
`1VLOV_Y_11]8LCi‘\_';Q
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneigiifi 317:2:
`
`NeWY°Vk; NY10119
`www.browngallo.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008'
`
`18
`
`L. Blenden
`
`ad of
`
`a FUBU product
`
`from the December 2008
`
`Slam,
`
`S~L—A~M, magazine.
`
`Q.
`
`Does Exhibit
`
`7 also have a printout
`
`of a Wikipedia entry for Slam magazine?
`
`A.
`
`I'm sorry. Exhibit
`
`7 also contains
`
`a Wikipedia printout
`
`—— excuse me,
`
`a printout
`
`of Wikipedia for Slam magazine.
`
`MR. VRANUM:
`
`Please mark this as
`
`Plaintiff's Exhibit 8.
`
`(Plaintiff's Exhibit 8, Source
`
`magazine ad, marked for identification,
`
`as of
`
`this date.)
`
`Q.
`
`Can you identify Plaintiff's
`
`Exhibit 8?
`
`A.
`
`Plaintiff's Exhibit
`
`8
`
`is a copy of
`
`an advertisement for a FUBU product
`
`in the
`
`Source magazine for October 2008.
`
`In
`
`addition is a second advertisement for a FUBU
`
`product
`
`in another Source magazine issue 227.
`
`I don't see a date on it, but
`
`I
`
`believe it was
`
`in the 2008 circulation.
`
`In addition to that, attached as
`
`part of Plaintiff's Exhibit
`
`8
`
`is a Wikipedia
`
`printout on the Source magazine.
`
`‘
`
`$
`ESQUIRE
`DEPOSITION SERVICES‘
`
`B ROWN&GALLO
`
`Toll Free: 800.944.9454
`Facsimile: 212.557.5972
`One ESL‘: 3.223
`
`New York, NY 10119
`www.browngaI|o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`19
`
`
`
`L. Blenden
`
`MR. VRANUM: Mark this Plaintiff's
`
`
`
`
`Exhibit 9.
`
`
`
`(Plaintiff's Exhibit 9, Ozone
`
`
`
`magazine ad, marked for identification,
`
`
`
`as of this date.)
`
`Q.
`
`Can you identify Plaintiff's
`
`Exhibit 9?
`
`
`
`
`A.
`
`Plaintiff's Exhibit
`
`9
`
`is a copy of
`
`an advertisement of a FUBU product
`
`that was
`
`published in Ozone magazine,
`
`issue number 69.
`
`Together with a Wikipedia printout explaining
`
`what Ozone magazine is.
`
`
`MR. VRANUM: Mark this 10.
`
`(Plaintiff's Exhibit 10, Right On
`
`magazine ad; Don Diva magazine ad,
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`marked for identification, as of
`
`this
`
`
`
`Q.
`
`date.)
`
`Please identify Plaintiff's Exhibit
`
`A.
`
`
`Plaintiff's Exhibit 10 contains a
`
`photocopy of what
`
`I believe is the very first
`
`
`
`FUBU advertisement
`
`from Right On magazine,
`
`which was published in 1993.
`
`
`
`In addition, Plaintiff's Exhibit 10
`
`To|| Free: 800.944.9454
`
`$
`
`ESQUIRE
`DEPOSITION SERVICES‘
`
`B
`
`LLC
`
`Suite 4715
`
`Facsimile: 212.557.5972
`One Penn Plaza
`
`New York, NY 10119
`www.browngaI|o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`0
`
`20
`
`L. Blenden
`
`contains an advertisement of
`
`a FUBU product
`
`which was published in Don Diva magazine.
`
`Q.
`
`The cover of
`
`the magazine doesn't
`
`contain a date, but can you give an
`
`approximate year that
`
`this was published?
`
`A.
`
`I believe that
`
`this particular
`
`issue of Don Diva magazine issue 34 was
`
`published in 2008.
`
`MR. VRANUM:
`
`Please mark that as
`
`Plaintiff's Exhibit 11.
`
`(Plaintiff's Exhibit 11, Debra Cox
`
`advertisement; Wikipedia printout on
`
`.
`
`Debra Cox, marked for identification, as
`
`of this date.)
`
`Q.
`
`Can you identify Plaintiff's
`
`Exhibit
`
`ll?
`
`A.
`
`Plaintiff's Exhibit 11 contains an
`
`advertisement
`
`from an endorsement eé~a-deal
`
`that FUBU had with rhythm and blues star
`
`Debra Cox.
`
`Q.
`
`Is there a Wikipedia printout for
`
`A.
`
`I'm sorry, yes. Attached to the
`
`exhibit as part of Exhibit 11 is a Wikipedia
`
`.
`
`$
`E s Q U I R E %&C&4<_>
`
`DEPOSITION sunvxcasv
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`one :33: 3;:
`
`NQWY‘-Wk; NY10119
`www.brownga|lo.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`21
`
`L. Blenden
`
`printout on Debra Cox.
`
`Q.
`
`Debra Cox was
`
`a well—known
`
`celebrity that endorsed the FUBU products by
`
`wearing them?
`
`A.
`
`Q.
`
`for FUBU?
`
`That's correct.
`
`And she also appeared in print ads
`
`A.
`
`Yes,
`
`she did. Yes.
`
`MR. VRANUM:
`
`Please mark that as
`
`Exhibit
`
`l2.
`
`(Plaintiff's Exhibit 12, Lenox
`
`Lewis photographs; Wikipedia printout on
`
`Lenox Lewis, marked for identification,
`
`as of
`
`this date.)
`
`Q.
`
`Can you identify Plaintiff's
`
`Exhibit 12?
`
`A.
`
`Plaintiff's Exhibit 12 contains two
`
`photographs of World Heavyweight Champion
`
`Lenox Lewis from one of his title fights, or
`
`actually from his title fight against Mike
`
`Tyson depicted in the boxing ring wearing his
`
`boxing trunks with the FUBU —— wearing FUBU
`
`branded boxing shorts.
`
`Attached also as part of
`
`$
`Es gum;
`
`DEPOSITION SERVICES‘
`
`1¥gv&~I&L<3A_I—I-LC;
`
`To|| Free: 800.944.9454
`
`Facsimile: 212.557.5972
`
`One Penn Plaza
`NeWY0|'k.NY10119
`www.brownga|lo.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3,
`
`2008
`
`22
`
`L. Blenden
`
`Plaintiff's Exhibit 12 is a Wikipedia
`
`printout on Lenox Lewis.
`
`Q.
`
`And Lenox Lewis was another
`
`celebrity endorser of FUBU products?
`
`A.
`
`Yes, he was.
`
`He was
`
`the
`
`heavyweight world champion of boxing from
`
`1999 through his retirement.
`
`And he wore
`
`FUBU on his boxing trunks exclusively in
`
`every world championship fight he fought
`
`since 1999.
`
`MR. VRANUM: Marks this as 13.
`
`(Plaintiff's Exhibit 13, LL Cool
`
`J's album cover photo, marked for
`
`identification, as of
`
`this date.)
`
`Q.
`
`Please identify Plaintiff's Exhibit
`
`A.
`
`Plaintiff's Exhibit 13 contains a
`
`photo of
`
`the front cover of LL Cool J's album
`
`cover for his Greatest Of All Time album.
`
`The cover of
`
`the album is a
`
`photograph of LL Cool J, and in that
`
`photograph he is wearing a FUBU branded cap,
`
`as well as a FUBU branded T—shirt.
`
`In addition, attached to as part of
`
`ESQUIRE
`
`DEPOSITION SERVICES‘
`
`IKZVESLM
`
`Toll Free: 800.944.9454
`Facsimile: 212.557.5972
`
`Suite 47 15
`One Penn Plaza
`New York, NY 10119
`www.brownga|lo.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
` L. Blenden
`
`23
`
`Plaintiff's Exhibit 13
`
`is a Wikipedia
`
`
`
`printout on LL Cool J.
`
`LL Cool J has been a
`
`celebrity endorser of
`
`the FUBU brand since
`
`
`
`
`the most
`the mid 1990s.
`He
`is one of
`recognized hip—hop stars throughout
`the
`
`
`
`
`world.
`
`In addition, he is one of
`
`the most
`
`recognized actors through not only his prior
`
`television series, which was a sitcom, but
`
`through the myriad of movies he has acted in
`
`
`the most
`since the late 1990s.
`One of
`
`recognized celebrities of all time. Q.
`
`a celebrity endorser of FUBU, LL
`
`As
`
`Cool J wore the clothing in performances and
`
`on TV?
`
`A.
`
`LL Cool J wore the clothing
`
`
`
`He wore them
`basically day in and day out.
`
`not only as street clothes, but he wore them
`
`
`
`in performances, concert performances,
` television ——
`throughout his television show,
`
`throughout his series through the years.
`
`them in a variety of award shows.
`He was always seen in FUBU branded
`
`I b
`
`
`elieve it was called In Da House.
`
`He wore
`
`
`
`E
`ESQUIRE
`DEPOSITXON SERVICES‘
`
`BROWN&GALLO
`
`Toll Free: 800.944.9454
`Facsknne: 212.557.5972
`
`Suite 4715
`One Penn Plaza
`New York, NY 10119
`www.brownga|lo.com
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008’
`
`O
`
`24
`
`L. Blenden
`
`clothing.
`
`LL Cool J has also worn the
`
`clothing in various music videos that he has
`
`performed in and seen throughout
`
`the world.
`
`MR. VRANUM:
`
`Please mark this as
`
`Plaintiff's Exhibit 14.
`
`(Plaintiff's Exhibit 14, United
`
`States Patent and Trademark Office
`
`Trademark Trial and Appeals board
`
`decision printout, marked for
`
`identification, as of
`
`this date.)
`
`Q.
`
`Can you identify Plaintiff's
`
`Exhibit 14?
`
`.
`
`A.
`
`Plaintiff's Exhibit 14 is a
`
`printout of
`
`the United States Patent and
`
`Trademark Office Trademark Trial and Appeals
`
`board decision in opposition number 91124582,
`
`GTFM,
`
`Inc. versus Teresa Shaw Sheard,
`
`S—H—A—W,
`
`S—H—E—A—R—D.
`
`Q.
`
`A.
`
`Q.
`
`Were you involved with this matter?
`
`Yes,
`
`I was.
`
`As part of
`
`the Trademark Trial and
`
`Appeal Board's findings,
`
`is there anything
`
`significant?
`
`A.
`
`Yes, on page 10 of
`
`the printed
`
`Toll Free: 800.944.9454
`
`E
`E S Q U I R E
`
`DEPOSITION SERVICES‘
`
`1“?
`
`‘
`
`Facsimile: 212.557.5972
`One Penn Plaza
`
`Suite 4715
`
`NEWYOFKI NY10119
`www.brownga|lo.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`.
`
`25
`
`L. Blenden
`
`decision,
`
`the Trademark Trial and Appeal
`
`board found that the FUBU mark is, and I'll
`
`quote it,
`
`"a strong mark and indeed a
`
`famous
`
`mark which is entitled to a broad scope of
`
`protection."
`
`MR. VRANUM:
`
`Please mark this as
`
`Plaintiff's Exhibit 15.
`
`(Plaintiff's Exhibit 15, Online
`
`record of
`
`JUBU application, marked for
`
`identification, as of
`
`this date.)
`
`Q.
`
`Can you identify Plaintiff's
`
`Exhibit 15?
`
`0
`
`A.
`
`Plaintiff's Exhibit 15 is a
`
`printout of
`
`the online record of
`
`the JUBU
`
`application filed in the United States Patent
`
`and Trademark Office.
`
`Q.
`
`Does
`
`this mark pertain to goods,
`
`similar goods as the goods that are sold
`
`under the FUBU brand?
`
`A.
`
`Yes,
`
`it does, virtually identical
`
`to the same types of goods in class 25.
`
`Q.
`
`Based on your experience in your
`
`many years in the marketing and promotion and
`
`sale of clothing and related accessories, do
`
`.
`
`E
`Es gum §51@1v5&<_M_LL9
`
`DEPOSITION SERVICES‘
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneiéfifiééii
`
`NeWY°"k: NY10119
`www.brownga|lo.com
`
`

`
`Lawrence Blenden
`
`December 3, 2008
`
`O
`
`26
`L. Blenden
`
`you think there would be confusion on the
`
`part of
`
`the consuming public if they
`
`encountered this mark in the marketplace?
`
`A.
`
`There is no question in my mind
`
`that
`
`this mark would cause confusion in the
`
`marketplace.
`
`The mark itself is similar in
`
`appearance.
`
`There is only a one letter
`
`difference between JUBU and FUBU.
`
`In addition, both marks are -— the
`
`famous mark FUBU and the JUBU mark in fact
`
`sound very similar, and the overall
`
`commercial
`
`impression that one would get
`
`from
`
`.
`
`the JUBU mark clearly would cause incredible
`confusion in the marketplace.
`
`Q.
`
`In your opinion, would the goods
`
`sold under this mark be sold through the same
`
`channels of
`
`trade as the FUBU mark?
`
`A.
`
`Based on this application,
`
`it would
`
`appear that
`
`the goods would be sold,
`
`identical goods would be sold through the
`
`same channels to the same consumer and cause
`
`incredible confusion in the marketplace.
`
`MR. VRANUM: Off
`
`the record.
`
`(whereupon, an off—the—record
`
`.
`
`$
`E S Q U I R E
`naposzrxou sxnvxcssv
`
`“C
`
`Toll Free: 800.944.9454
`Facsimile: 212.557.5972
`Suite 4715
`One Penn Plaza
`NEWYOFKI NY10119
`www.brownga||o.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`0
`
`27
`
`L. Blenden
`
`discussion was held.)
`
`Q.
`
`Would the consumers of FUBU goods
`
`be the same type of consumers that would be
`
`the consumers of
`
`the JUBU merchandise?
`
`A.
`
`Since the FUBU products are sold
`
`throughout
`
`the country for infants through
`
`seniors,
`
`there is no question that
`
`there
`
`would be an overlap.
`
`MR. VRANUM: That's it.
`
`Thank you.
`
`(Time Noted:
`
`11:38 a.m.)
`
`\«E<?>v c
`
`LAWRENCE BLENDEN
`
`Subscribed and sworn to before me
`
`this
`
`€?bay
`
`of _4é;éQg&L:\ 2008.
`
`WILLIAM H. COX
`Notary Pubic "%‘.“a0fNewYOfK
`N0. Cf.’
`=“"C(3O
`\-»~vQua4i(~aoa-Av Nota County
`Comnnssont_,-.‘Qgg;5,2O
`C0|TH’i1.;a
`
`r
`
`Toll Free: 800.944.9454
`Facsimile: 212.557.5972
`
`E 5 Q U I R E
`
`DEPOSITION SERVICES‘
`
`BRowN&GALLo
`
`Suite 4715
`.4...
`
`One
`
`New York, NY 10119
`www.brownga||o.com
`
`.
`
`0
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`C E R T I
`
`F
`
`I
`
`C A T E
`
`STATE OF NEW YORK
`
`)
`
`COUNTY OF NEW YORK
`
`I, Linda Salzman,
`
`a Notary Public
`
`within and for the State of New York, do
`
`hereby certify:
`
`That LAWRENCE BLENDEN,
`
`the witness
`
`whose deposition is hereinbefore set
`
`forth, was duly sworn by me and that such
`
`deposition is a true record of
`testimony given by the witness.
`
`the
`
`I further certify that
`
`I
`
`am not
`
`related to any of
`
`the parties to this
`
`action by blood or marriage, and that
`
`I
`
`am in no way interested in the outcome of
`
`this matter.
`
`IN WITNESS WHEREOF,
`
`I have hereunto
`
`set my hand this 3rd day of December,
`
`2008.
`
`LINDA SALZMAN
`
`.
`
`.
`
`$
`Es gum §30.w13&%
`
`DEPOSITION SERVICES‘
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneiziffiéfaii
`
`NeWY0|”k, NY10119
`www.browngaIlo.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008
`
`WITNESS
`
`EXAMINATION BY
`
`LAWRENCE BLENDEN
`
`MR.
`
`VRANUM
`
`PLAINTIFF'S
`
`1
`
`Notice of Testimony
`
`Deposition dated 11/19/08
`
`FUBU trademark
`
`Copies of web pages from
`
`FUBU website
`
`Variety of FUBU products
`
`Pictures of Clothing
`
`FUBU advertisements
`
`Slam magazine ad
`
`Source magazine ad
`
`Ozone magazine ad
`
`Right On magazine ad;
`
`Don Diva magazine ad
`
`E
`ESQUIRE
`DEPOSITION SERVICES‘
`
`BROWN&GALLO
`
`(Continued)
`
`Toll Free: 800.944.9454
`Facsimile: 212.557.5972
`
`Suite 47 1 5
`One Penn Plaza
`New York, NY 10119
`www.browngaIlo.com
`
`

`
`Lawrence Phillip Blenden
`
`December 3, 2008‘
`
`EXHIBITS (Cont'd)
`
`PLAINTIFF
`
`11
`
`Debra Cox advertisement;
`
`Wikipedia printout on
`
`Debra Cox
`
`Lenox Lewis photographs;
`
`Wikipedia printout on
`
`Lenox Lewis
`
`LL Cool J's album cover photo
`
`United States Patent and
`
`Trademark Office Trademark
`
`Trial and Appeals board
`
`decision printout
`
`Online record of
`
`JUBU
`
`application
`
`.
`
`0
`
`E
`Es gum egg:
`
`DEPOSITION SERVICES’
`
`Toll Free: 800.944.9454
`
`Facsimile: 212.557.5972
`oneiémi
`
`NeWY°"k/ NY10119
`www.browngal|o.com
`
`

`
`Lawrence Phillip Blenden
`
`31
`
`December 3,
`
`2008
`
`
`
`
`Burlington
`11:13
`business
`6:9 7:7 8:2
`B—E-A—L-L—S
`11:14
`
`C
`3:
`
`call
`14:8,13
`called
`5:3 23:23
`cap
`22:23
`
`capacity
`7:18
`caps
`9:9 10:3,19
`10:20
`Cardoza
`6:17
`careful
`11:3
`cause
`
`26:6,14,22
`celebrities
`12:l2,13
`23:13
`
`celebrity
`21:4 22:5
`23:4,14
`certificate
`5:15
`
`certify
`2829,15
`champion
`21:19 22:7
`
`championship
`22:10
`
`changes
`13:18
`channels
`11:6 12:9
`26:18.22
`children's
`10:18
`circulation
`18:22
`class
`9:8 25:22
`
`A
`
`abroad
`7:14,17 12:23
`access
`8:2
`accessories
`25:25
`across
`12:22
`acted
`23:11
`action
`28:17
`actors
`
`l2:12,20 23:9
`actually
`8:7 12:18
`15:2 16:17
`21:21
`ad
`17:21 18:2,12
`19:5,16,16
`29:16,17,18
`29:19,20
`addition
`9:15,23 10:2
`12:11 18:19
`18:23 19:25
`22:25 23:8
`26:10
`address
`
`6:8,9
`administer
`4:14
`ads
`17:11,13 21:7
`advertisement
`l8:17,19
`19:10,23
`20:2,13,19
`30:4
`advertisem...
`16:24 17:6,8
`29:15
`
`advertising
`12:5 16:19
`affairs
`7:7
`affidavits
`9:3
`affirmed
`5:4
`After
`
`6216,25
`against
`21:21
`AGREED
`4:2,7,11
`air
`12:8
`album
`22:14,19,20
`22:21 30:10
`all
`4:8 7:22 11:2
`11:9 22:20
`23:13
`also
`7:8,12,15,21
`9:2 10:10
`12:7,20
`17:16 18:4,6
`21:7,25 24:2
`always
`23:25
`another
`18:20 22:4
`anti—count...
`7:13
`
`Appeal
`1:4 24:23
`25:2
`
`Appeals
`24:9,16 30:13
`appear
`26:20
`appearance
`26:8
`
`appeared
`21:7
`
`appearing
`12:15
`
`applicant
`1:10 5:17,20
`applicant's
`5:24
`
`application
`25:10,16
`26:19 30:16
`
`approximate
`20:6
`
`approximately
`6:24 16:17
`area
`11:20
`around
`
`8:11
`arts
`6:14
`attached
`18:23 20:24
`21:25 22:25
`attorney
`5:19,24 6:23
`attorneys
`3:5 4:3
`
`August
`6:25
`authorized
`4:14
`Avenue
`2:8 3:6 6:10
`award
`12:16 23:24
`a.m
`2:3 5:22
`27:11
`
`,
`
`B 1
`
`B
`5:2
`bachelor
`6:14
`
`backpack
`15:2
`
`backpacks
`10:3
`bandanas
`9:10
`bar
`6:21
`Based
`25:23 26:19
`basically
`23:18
`Bealls
`11:14
`
`bearing
`9:16
`became
`6:25 7:2
`before
`1:4 2:10 4:13
`4:16 27:16
`believe
`9:2 13:16,19
`17:17 18:22
`19:22 20:7
`23:23
`
`belts
`9:10 10:3
`
`Benjamin
`6:17
`BET
`12:9
`between
`4:3 26:9
`billboards
`12:6
`Blenden
`1:15 2:5 6:1
`6:7 7:1 8 1
`9:1 10:1
`11:1 12:1
`13:1 14:1
`15:1 16:1
`17:1,2 18:1
`19:1 20:1
`21:1 22:
`23:1 24:
`25:1 26:
`27:1,14
`28:10 29:4
`blood
`28:17
`blouses
`9:12
`blues
`20:20
`board
`1:4 2429,17
`25:3 30:13
`Board's
`24:23
`both
`7:17 8: