throbber
Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA252075
`ESTTA Tracking number:
`12/01/2008
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91182109
`Plaintiff
`The Coca-Cola Company
`Bruce W. Baber
`King & Spalding LLP
`1180 Peachtree Street
`Atlanta, GA 30309
`UNITED STATES
`BBaber@KSLAW.com, cpearlstein@na.ko.com, lysims@na.ko.com,
`jce@ked-iplaw.com
`Motion for Sanctions
`Emily Bienko Brown
`bbaber@kslaw.com, ebrown@kslaw.com, pguibault@na.ko.com
`/Emily Bienko Brown/
`12/01/2008
`Motion for Sanctions.pdf ( 42 pages )(431350 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
`
`OPPOSITION
`
`NO. 91182109
`
`) )
`
`)
`)
`)
`
`I
`
`) )
`
`)
`
`THE COCA-COLA COMPANY,
`
`Opposer,
`
`v.
`
`ARDENBAY LIMITED,
`
`Applicant.
`
`OPPOSER’S MOTION FOR SANCTIONS
`
`AND ENTRY OF JUDGMENT
`
`NOW COMES THE COCA-COLA COMPANY (“TCCC” or “Opposer”), the
`
`opposer in the above—captioned matter, and, by and through its undersigned counsel
`
`and in accordance with Rule 37 of the Federal Rules of Civil Procedure and Rule
`
`2.120(g)(2) of the Trademark Rules of Practice, hereby moves before the Trademark
`
`Trial and Appeal Board (the “Board”) for entry of an order imposing sanctions on
`
`applicant Ardenbay Limited (“Ardenbay” or “Applicant”) for failure to provide any
`
`responses to Opposer’s discovery requests that were served on Applicant on October 6,
`
`2008. Opposer requests, in accordance with Rule 2.120(g)(2), that the Board strike the
`
`Answer filed by Applicant and enterjudgment in favor of TCCC and against Applicant,
`
`sustaining the Opposition and refusing registration to the mark VALT as shown in
`
`Application Serial No. 78-879,490.
`
`In support of this motion, TCCC respectfully shows that TCCC served on
`
`Applicant’s counsel on October 6, 2008 Opposer’s First Set of interrogatories
`
`

`
`(hereinafter “interrogatories”) and Opposer’s First Set of Requests for Production of
`
`Documents and Things (hereinafter “Document Requests”). Applicant’s responses to
`
`Opposer’s interrogatories and Document Requests were due on November 10, 2008.
`
`True and correct copies of Opposer’s interrogatories and Document Requests are
`
`attached hereto as Exhibits A and B.
`
`in further support hereof, Opposer shows that counsel for Applicant informed
`
`counsel for Opposer in an e—mail message dated November 19, 2008, that Applicant’s
`
`responses to the interrogatories and Document Requests would not be forthcoming.
`
`This message from Applicant’s counsel was in response to Opposer’s counsel’s e—mail
`
`inquiry regarding the status of Applicant’s responses to Opposer’s outstanding
`
`discovery requests. A copy of the November 19, 2008 e—mail exchange between
`
`counsel is attached hereto as Exhibit C.
`
`Applicant’s failure to provide any response to Opposer’s interrogatories and
`
`Document Requests and counsel’s November 19, 2008 email stating that Applicant
`
`would not be providing responses to the interrogatories and Document Requests are
`
`sufficient to warrant sanctions against Applicant. 37 C.F.R. § 2.120(g)(2).
`
`WHEREFORE, for the foregoing reasons, and those stated more fully in the
`
`accompanying memorandum of law filed concurrently herewith in accordance with 37
`
`C.F.R. § 2.127(a), Opposer The Coca—Cola Company respectfully requests that the
`
`Board enter sanctions against Applicant, namely, that the Board strike the Answer of
`
`Applicant filed on March 6, 2008 and enterjudgment in favor of TCCC and against
`
`Applicant, sustaining Opposer’s Opposition and refusing registration to the mark VALT,
`
`as shown in Applicant’s Application Serial No. 78—879,490.
`
`

`
`This 1st day of December, 2008.
`
`Respectfully submitted,
`
`KING & SPALDING LL
`
`
`
` Bruce
`.
`r
`Emily Bienko Brown
`
`1180 Peachtree Street, N.E.
`
`Atlanta, Georgia 30309-3521
`Telephone: (404) 572-4600
`Facsimile: (404) 572-5145
`
`Attorneys for Opposer
`THE COCA—COLA COMPANY
`
`

`
`EXHIBIT A
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`OPPOSITION NO. 91182109
`
`) )
`
`) )
`
`)
`
`) )
`
`) )
`
`)
`
`THE COCA—COLA COMPANY,
`
`Opposer,
`
`v.
`
`ARDENBAY LIMITED,
`
`Applicant.
`
`OPPOSER’S FIRST SET OF INTERROGATORIES
`
`Pursuant to the Trademark Rules of Practice and Rule 33 of the Federal
`
`Rules of Civil Procedure, opposer The Coca—Cola Company (“Opposer” or
`
`“TCCC”) hereby requests that applicant Ardenbay Limited (“Applicant”) serve
`
`upon Opposer sworn answers to the Interrogatories set forth herein within thirty
`
`(30) days after the service hereof.
`
`These Interrogatories are continuing in nature and any information
`
`discovered subsequent to the service of Applicant’s answers should be brought to
`
`the attention of Opposer through the service of supplemental answers, within a
`
`reasonable time following such discovery, pursuant to Rule 26 of the Federal Rules
`
`of Civil Procedure.
`
`

`
`Applicant should respond to these interrogatories in accordance with the
`
`following definitions and instructions:
`
`DEFINITIONS
`
`The following definitions apply to each of these interrogatories, and each of
`
`the terms defined below, when used in any interrogatory, definition, or instruction,
`
`shall have the meaning given herein:
`
`1.
`
`“You,” “your” and/or “Applicant” means Applicant Ardenbay Limited
`
`and all persons and entities acting or purporting to act on its behalf, including
`
`officers, directors, employees, partners, agents, licensees, corporate parents,
`
`subsidiaries, and affiliates.
`
`2.
`
`“Opposer” or “TCCC” shall refer to Opposer The Coca—Cola
`
`Company.
`
`3.
`
`“Person” means an individual, firm, partnership, corporation,
`
`proprietorship, association, or any other organization or entity.
`
`4.
`
`To “identify” means:
`
`(a)
`
`in connection with a natural person, to state his or her full
`
`name, title, and job description, if applicable, and his or her
`
`present or last known business and home addresses and
`
`telephone numbers;
`
`

`
`(b)
`
`in connection with a firm, partnership, corporation,
`
`proprietorship, association, or other entity, to state its name, the
`
`nature of the entity, and each of its present or last known
`
`addresses and telephone numbers;
`
`(c)
`
`in connection with a document, to describe the document
`
`(including both documents in your possession, custody or
`
`control, and all other documents of which you have
`
`knowledge), setting forth its date, title, author(s), addressee(s),
`
`parties thereto, and the substance thereof, with such reasonable
`
`particularity as would be sufficient to permit them to be sought
`
`by subpoenas deuces tecum or under the provisions of Rule 34
`
`of the Federal Rules of Civil Procedure; and
`
`(d)
`
`in connection with an oral statement or communication, to
`
`(i) state when and where it was 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 the
`
`substance of the statement or communication.
`
`5.
`
`“Document” is defined to be synonymous in meaning and equal in
`
`scope to the use of that term in Rule 34 of the Federal Rules of Civil Procedure and
`
`the phrase “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, electronic mail messages, 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, software, 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. The term
`
`”document” shall include all 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, regardless of location,
`
`together with all attachments thereto or enclosures therewith, in the possession,
`
`custody or control of Applicant or any attorney, employee, agent, or representative
`
`of Applicant.
`
`

`
`6.
`
`The term “concerning” shall be construed in the broadest sense to
`
`mean relating to, referring to, describing, reflecting, alluding to, responding to,
`
`connected with, commenting on, in respect of, about, regarding, discussing,
`
`showing, analyzing, constituting, and/or evidencing, in any manner, whether
`
`directly or indirectly, the subject matter of the request.
`
`7.
`
`The term “Opposer’s Marks” means Opposer’s trademarks VAULT,
`
`VAULT ZERO and VAULT RED BLITZ.
`
`8.
`
`The term “Applicant’s Alleged Mark” means Applicant’s alleged
`
`trademark VALT as shown in U.S. Trademark Application Serial No. 78-879,490
`
`(the “Application”).
`
`9.
`
`“Applicant’s Goods” means any goods sold, offered for sale, or
`
`distributed, or intended to be sold, offered for sale, or distributed, by you at any
`
`time, on or in connection with which Applicant’s Alleged Mark was used,
`
`including but not limited to the goods in International Class 3 identified in the
`
`Application.
`
`INSTRUCTIONS
`
`1.
`
`In each instance where an Interrogatory is answered on information
`
`and belief, it is requested that Applicant set forth the basis for such information and
`
`belief.
`
`

`
`2.
`
`In each instance where Applicant denies knowledge or information
`
`sufficient to answer the Interrogatory, it is requested that Applicant set forth the
`
`name and address of each person, if any, known or believed to have such
`
`knowledge or information.
`
`3.
`
`In each instance where the existence of a document is disclosed,
`
`Applicant is requested to attach a copy of such document to its answers. If such
`
`document is not in Applicant’s possession, custody or control, it is requested that
`
`Applicant state the name and address of each person known to Applicant 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 lnterrogatory 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 each 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 for a subpoena duces tecum, 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 any 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.
`
`5.
`
`In interpreting these discovery requests, definitions, and instructions,
`
`the following shall apply:
`
`(a)
`
`any masculine, feminine, or neutral term includes all other
`
`genders;
`
`(b)
`
`the singular includes the plural, and the plural includes the
`
`singular;
`
`(c)
`
`each of the words “any,” “each,” “all,” and “every” includes and
`
`encompasses the others; and
`
`(d)
`
`the words “or,” “and,” “and/or,” and “including” shall be read
`
`inclusively rather than exclusively.
`
`

`
`INTERROGATORIES
`
`INTERROGATORY NO.
`
`1
`
`Identify by name and title each past and/or present owner, partner,
`
`shareholder, officer, director, managing agent, and supervisory agent of Applicant,
`
`and provide, for each such person, a description of that person’s general job
`
`functions and areas of responsibility throughout his or her tenure(s) with
`
`Applicant.
`
`INTERROGATORY NO. 2
`
`Identify each form of Applicant’s Alleged Mark, including each different
`
`design form or variation, if any, and proposed versions thereof, whether or not
`
`such form or proposed version thereof was ever used, that Applicant has ever used,
`
`intended to use, or considered for use for or in connection with any services and/or
`
`goods of any kind, and for each such form or variation, describe the services and/or
`
`goods for or in connection with which each such form has been used or is or was
`
`intended or considered for use; describe the manner in which such form was used
`
`or is or was intended or considered for use; and state the time period during which
`
`each such form was or has been used or intended or considered for use.
`
`

`
`INTERROGATORY NO. 3
`
`Identify specifically all goods, including but not limited to any of
`
`Applicant’s Goods, that you have sold, offered for sale or distributed, or intend to
`
`sell, offer for sale or distribute, on or in connection with which you have used or
`
`intend to use Applicant’s Alleged Mark.
`
`INTERROGATORY NO. 4
`
`For each type of good and/or service identified in your answer to
`
`Interrogatory No. 3, including but not limited to any of the goods identified in the
`
`Application, that has been offered, sold or rendered in interstate or foreign
`
`commerce: (a) state the date on which such good or service was first provided to a
`
`customer; (b) identify the manner in which such goods and/or services are
`
`provided to consumers; and (c) identify the geographic areas in the United States in
`
`which such goods or services have been offered or provided since the date of first
`
`use of Applicant’s Alleged Mark.
`
`INTERROGATORY NO. 5
`
`State the facts and circumstances surrounding Applicant’s selection,
`
`adoption, and use of Applicant’s Alleged Mark, including but not limited to:
`
`(a)
`
`describe the reasoning and rationale behind Applicant’s adoption of
`
`Applicant’s Alleged Mark;
`
`

`
`(b)
`
`identify each person who originally conceived of and/or suggested use
`
`of Applicant’s Alleged Mark;
`
`(c)
`
`identify each person involved in the creation, evaluation, adoption,
`
`selection, or design of Applicant’s Alleged Mark; and
`
`(01)
`
`state whether Applicant had knowledge, prior to Applicant’s selection,
`
`adoption, and first use of Applicant’s Alleged Mark, of Opposer’s
`
`Marks, Opposer’s use of Opposer’s Marks and/or Opposer’s products
`
`sold under Opposer’s Marks.
`
`INTERROGATORY NO. 6
`
`State whether Applicant conducted or caused to be conducted any search,
`
`study, or any other investigation, whether formal or informal, including opinions of
`
`counsel, in connection with Applicant’s adoption of Applicant’s Alleged Mark;
`
`describe the results or conclusions of any such search, study or other investigation;
`
`and identify all persons having knowledge of any such search, study or other
`
`investigation, or the results thereof.
`
`INTERROGATORY NO. 7
`
`Identify fully the ways in which Applicant advertises, promotes or markets
`
`or intends to advertise, promote or market Applicant’s Services and/or Applicant’s
`
`Goods, including without limitation by identifying all forms of media and the
`
`specific media outlets that Applicant has used for such activities; identifying the
`
`-10-
`
`

`
`types of advertising, promotional and marketing activities engaged in by
`
`Applicant; and stating the total dollar amounts spent by Applicant on a monthly
`
`and annual basis in connection with such activities, from the first date of such
`
`expenditures to the present.
`
`INTERROGATORY NO. 8
`
`Identify all advertisements, press releases, catalogs, circulars, leaflets, sales
`
`or promotional literature, brochures, bulletins, fliers, signs, sales displays, posters,
`
`point of purchase displays, and/or other promotional materials containing or
`
`bearing Applicant’s Alleged Mark that have been, or are intended to be, published,
`
`broadcast, or displayed, and for each such advertisement or item:
`
`(a)
`
`state the date on which, or the inclusive dates during which, it was or
`
`is intended to be published, broadcast, displayed, or distributed;
`
`(b)
`
`state the geographic area (by city, county, state and/or country)
`
`where such advertisement or promotional item or copies thereof were
`
`or are intended to be published, broadcast, displayed, or distributed;
`
`(c)
`
`if a print media advertisement or promotional item, identify the
`
`publication, by name, date, and page number, in which it appeared or
`
`is scheduled to appear;
`
`((1)
`
`if a broadcast advertisement or promotional item, identify the radio
`
`or television station or network over which such advertisement was
`
`-11-
`
`

`
`or is intended to be broadcast and state its length and the date and
`
`time of broadcast;
`
`(e)
`
`if an Internet advertisement or promotional item, identify the web
`
`site, by name, date, and uniform resource locator (“URL”) address, at
`
`which it appeared or is intended to appear; and
`
`(f)
`
`state the total amount of money spent or budgeted for such
`
`advertisement, including but not limited to, cost of space or time,
`
`production costs, and agency commissions.
`
`INTERROGATORY NO. 9
`
`Identify any and all trade shows, conventions or exhibitions at which you
`
`have promoted or plan to promote Applicant’s Goods.
`
`INTERROGATORY NO. l0
`
`Identify in detail the channels of trade, including the types of retail stores
`
`and other outlets, through which Applicant has sold or intends to sell goods or
`
`services using Applicant’s Alleged Mark.
`
`INTERROGATORY NO. l l
`
`Identify separately the geographic or territorial areas in the United States (by
`
`city, county, and state) where Applicant has considered or conducted marketing or
`
`advertising activities, or sold, offered for sale, rendered or distributed services
`
`-12-
`
`

`
`and/or goods, on or in connection with which Applicant has used Applicant’s
`
`Alleged Mark.
`
`INTERROGATORY NO. 12
`
`For Applicant’s Services and/or Applicant’s Goods, state the total sales in
`
`the United States in terms of
`
`(a)
`
`the number of instances in which Applicant’s Services were sold,
`
`offered for sale, or rendered;
`
`(b)
`
`the number of Applicant’s Goods sold, offered for sale, or distributed,
`
`and
`
`(c)
`
`the dollar volume by year from the date of first use of Applicant’s
`
`Alleged Mark to the present.
`
`INTERROGATORY NO. 13
`
`Describe fully by age, gender, income or other demographic criteria or
`
`characteristics the target customers and/or target markets for the services and/or
`
`goods offered by Applicant.
`
`INTERROGATORY NO. 14
`
`Identify all tags, labels, invoices, decals, packaging, cartons, point of
`
`purchase displays, web sites, and other written materials which show Applicant’s
`
`use of Applicant’s Alleged Mark in connection with Applicant’s goods or services
`
`-13-
`
`

`
`from its date of first use to the present, and specify the periods during which each
`
`identified item was allegedly used. In lieu of identifying each such item, an actual
`
`sample of each may be attached to your answers to these lnterrogatories, with dates
`
`and duration of use indicated.
`
`INTERROGATORY NO. 15
`
`State the date on which and circumstances through which Applicant first
`
`became aware of Opposer’s use of Opposer’s Marks, and identify all persons
`
`associated with Applicant who learned of Opposer’s use on such date.
`
`INTERROGATORY NO. 16
`
`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
`
`either Opposer’s Marks or Applicant’s Alleged Mark or any issue in this
`
`proceeding, 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; and
`
`(b)
`
`each person having knowledge of any report or summary of such
`
`survey.
`
`-14-
`
`

`
`INTERROGATORY NO. 17
`
`If Applicant, or any of Applicant’s agents, representatives, or customers,
`
`have received a written or Verbal order, inquiry, complaint, or other
`
`communication that was intended for Opposer, or that inquired whether Applicant
`
`or any goods or services sold or distributed by Applicant are connected with,
`
`affiliated with, associated with, or sponsored by Opposer or that comment on the
`
`similarity between Applicant’s Alleged Mark and Opposer’s Marks, identify:
`
`(a)
`
`by whom it was communicated;
`
`(b)
`
`the date and place thereof;
`
`(c)
`
`the nature and substance thereof; and
`
`(d)
`
`the manner in which the incident came to Applicant’s attention,
`
`including, without limitation, the method of communication.
`
`INTERROGATORY NO. 18
`
`Identify all disputes, disagreements or controversies between Applicant and
`
`any party, and all legal or administrative actions or proceedings of any type, other
`
`than this proceeding, in which Applicant has been involved, as a party or
`
`otherwise, involving the adoption or use of, or application to register, any
`
`trademark, service mark, trade dress, trade name, copyright, or intellectual property
`
`right of any kind.
`
`-15-
`
`

`
`INTERROGATORY NO. 19
`
`Identify any and all grants, licenses, and assignments concerning Applicant’s
`
`Alleged Mark or any amendment or modification thereof.
`
`INTERROGATORY NO. 20
`
`Identify all domain names that are registered or owned by Applicant
`
`concerning Applicant’s Alleged Mark or Applicant’s Goods and/or Applicant’s
`
`Services.
`
`INTERROGATORY NO. 21
`
`Identify each person employed by or otherwise associated or affiliated with
`
`Applicant 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 Applicant;
`
`(b)
`
`the marketing, advertising and promotional activities of Applicant,
`
`including but not limited to marketing, advertising and promotional
`
`activities relating to use of Applicant’s Alleged Mark;
`
`(c)
`
`Applicant’s use of Applicant’s Alleged Mark;
`
`(d)
`
`the channels of trade and distribution methods used by Applicant for
`
`its goods and products;
`
`-16-
`
`

`
`(e)
`
`the unit and dollar Volume of sales of any goods or services by
`
`Applicant since the time Applicant began use of Applicant’s Alleged
`
`Mark;
`
`(f)
`
`the selection and adoption of Applicant’s Alleged Mark; and
`
`(g)
`
`Applicant’s first knowledge of Opposer’s use of Opposer’s Marks.
`
`INTERROGATORY NO. 22
`
`Identify each person whom Applicant may call as a fact witness or expert
`
`witness on Applicant’s behalf in this proceeding and state, for each such witness,
`
`the subject matter of his or her expected testimony and, for each such expert, the
`
`substance of the facts and opinions on which he or she is expected to testify and
`
`the basis for his or her qualification as an expert.
`
`INTERROGATORY NO. 23
`
`With respect to each of the foregoing Interrogatories and the subparts
`
`thereof:
`
`(a)
`
`identify each person from whom information was obtained to answer
`
`each lnterrogatory;
`
`(b)
`
`identify the documents and records consulted to obtain such
`
`information; and
`
`-17-
`
`

`
`(c)
`
`where no information or only partial information is given in such
`
`Answer, describe the efforts made to locate information responsive to
`
`such Interrogatory.
`
`KING & SPALDING LLP
`
`Bruce W. Baber
`
`Emily Bienko Brown
`
`Attorneys for Opposer
`THE COCA—COLA COMPANY
`
`l 180 Peachtree Street, N.E.
`
`Atlanta, Georgia 303 09
`Telephone: (404) 572-4600
`Facsimile: (404) 572-5145
`
`-13-
`
`

`
`CERTIFICATE OF SERVICE
`
`This is to ceitify that I have this day served the foregoing Opposer’s First
`
`Set of Interrogatories upon Applicant, by causing a true and correct copy thereof to
`
`be deposited in the United States Mail, postage prepaid, addressed to Applicant’s
`
`counsel of record as follows:
`
`Mr. John C. Eisenhart
`
`KED & Associates, LLP
`P.O. Box 221200
`
`Chantilly, Virginia 20153
`
`Mr. John C. Eisenhart
`
`KED & Associates, LLP
`
`2325 Dulles Corner Boulevard, Suite 1100
`
`Herndon, Virginia 20171
`
`é /5»
`
`This
`
`day of October, 2008.
`
`

`
`EXHIBIT B
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`OPPOSITION NO. 91182109
`
`) )
`
`) )
`
`)
`
`) I
`
`) )
`
`)
`
`THE COCA—COLA COMPANY,
`
`Opposer,
`
`v.
`
`ARDENBAY LIMITED.,
`
`Applicant.
`
`OPPOSER’S FIRST SET OF REQUESTS FOR
`PRODUCTION OF DOCUMENTS AND THINGS
`
`Pursuant to the Trademark Rules of Practice and Rule 34 of the Federal
`
`Rules of Civil Procedure, opposer The Coca—Cola Company (“Opposer” or
`
`“TCCC”) hereby requests that applicant Ardenbay Limited (“Applicant”) produce
`
`for the purpose of inspection and copying at the office of King & Spalding LLP,
`
`1180 Peachtree Street, Atlanta, Georgia, 30309, 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 Applicant or Applicant’s agents or attorneys.
`
`DEFINITIONS
`
`Opposer incorporates herein by reference the Definitions in Opposer’s First
`
`Set of Interrogatories.
`
`

`
`INSTRUCTIONS
`
`1.
`
`In producing the requested documents, Applicant is directed to furnish
`
`all documents in its possession, custody, or control, including without limitation
`
`documents in the possession, custody, or control of Applicant’s present or former
`
`attorneys or their consultants or investigators, or in the possession of Applicant’s
`
`consultants, experts, advisors, agents, or associates.
`
`2.
`
`If the attorney-client privilege or work product immunity is asserted
`
`as to any document, either as to part of a document or as to a document in its
`
`entirety, provide the following:
`
`(a)
`
`the specific ground(s) for not producing the document or thing
`
`in ‘full;
`
`(b)
`
`the bases for any such claim of privilege or immunity; and
`
`(c)
`
`the full identity of the information, document, or material for
`
`which such privilege or immunity is asserted, including the name and title of
`
`any document; the name, address, and title of its author; each addressee; and
`
`each person to Whom a copy of the document or thing has been sent or
`
`received.
`
`3.
`
`To the extent the claim of attorney-client privilege or work product
`
`immunity is not being asserted as to the entirety of a document, produce in
`
`

`
`redacted form that portion of the document not covered by such claim of privilege
`
`or immunity.
`
`4.
`
`If any document requested herein was formerly in Applicant’s
`
`possession, custody, or control and has been lost or destroyed, or otherwise
`
`disposed ofl Applicant is requested to submit in lieu of any such document a
`
`written statement:
`
`(a)
`
`describing in detail the nature of the document and its contents;
`
`(b)
`
`identifying the person(s) who prepared or authored the
`
`document and, if applicable, the persons(s) to whom the document was sent,
`
`whether indicated thereon or by blind copies;
`
`(c)
`
`specifying the date(s) on which the document was prepared and
`
`transmitted; and
`
`(d)
`
`specifying, if possible, the date on which the document was lost
`
`or destroyed and, if destroyed, the conditions of and reasons for such
`
`destruction and the persons requesting and performing the destruction.
`
`5.
`
`Applicant shall either produce the requested documents and/or things
`
`as they are kept in the usual course of business or shall organize and label them to
`
`correspond with the numbered Requests.
`
`

`
`6.
`
`Applicant shall produce all documents which exist or have been
`
`maintained in electronic form in such electronic media as required to be accessed
`
`and read by appropriate electronic equipment.
`
`7.
`
`These Requests are continuing, such that any document discovered
`
`subsequent to your production which would have been produced had it been
`
`available or its existence been known at the time of production is to be supplied
`
`within a reasonable time following such discovery, pursuant to Rule 26 of the
`
`Federal Rules of Civil Procedure.
`
`

`
`DOCUMENT REQ QUESTS
`
`DOCUMENT REQUEST NO. 1
`
`Documents and things sufficient to provide complete information
`
`concerning: a) the nature of the business conducted by Applicant; b) the locations
`
`where such business is conducted; c) the corporate organization of Applicant,
`
`including a list of parents, subsidiaries, affiliates and related divisions; and d) the
`
`officers and directors of Applicant.
`
`DOCUMENT RES QUEST NO. 2
`
`All documents concerning the goods and/or services for which Applicant has
`
`used, or intends to use, Applicant’s Alleged Mark, including but not limited to
`
`Applicant’s Goods and Applicant’s Services.
`
`DOCUMENT REE QUEST NO. 3
`
`All documents concerning Applicant’s selection and adoption of Applicant’s
`
`Alleged Mark including, without limitation, documentation of meetings or
`
`discussions concerning the adoption of Applicant’s Alleged Mark, documentation
`
`concerning the reasons for selecting Applicant’s Alleged Mark, and documentation
`
`concerning the consideration of any alternative to Applicant’s Alleged Mark.
`
`DOCUMENT REQUEST NO. 4
`
`

`
`All documents concerning Applicant’s first use and first use in commerce of
`
`Applicant’s Alleged Mark on or in connection with Applicant’s goods and services,
`
`including without limitation advertisements, promotional materials, press releases,
`
`customer presentations, web site screen shots, invoices, and shipping documents,
`
`and all documents concerning the circumstances under which such first use and
`
`first use in commerce occurred, the geographic location of such alleged first use,
`
`and all persons involved in such alleged first use.
`
`DOCUMENT REQUEST NO. 5
`
`All documents concerning any searches, studies, investigations, or any other
`
`inquiries, whether formal or informal, conducted by or on behalf of Applicant
`
`referring to the availability of Applicant’s Alleged Mark for adoption and use by
`
`Applicant on or in connection with Applicant’s goods and services.
`
`DOCUMENT REQUEST NO. 6
`
`Representative samples of all materials concerning Applicant’s Alleged
`
`Mark that Applicant distributes or has distributed to any person, including but not
`
`limited to customers, prospective customers, and business contacts. This request
`
`includes without limitation promotional materials, merchandising materials,
`
`marketing materials, advertising materials, labels, packaging, flyers, hangtags,
`
`direct-mail pieces, point of sale pieces, signs, posters, newspapers, advertisements,
`
`

`
`magazine advertisements, media articles, catalogs, brochures, facsimiles, e—mails,
`
`presentations, business cards, web site printouts, and any other publicly-
`
`distributed materials or items.
`
`DOCUMENT REQUEST NO. 7
`
`All documents concerning Applicant’s total dollar Volume of sales of goods
`
`and services in the United States under Applicant’s Alleged Mark, on a monthly
`
`and annual basis, from the first date of such sales to the present.
`
`DOCUMENT REQ QUEST NO. 8
`
`All documents concerning Applicant’s total dollar volume of advertising and
`
`promotional expenditures in the United States in connection with Applicant’s
`
`promotion of Applicant’s Alleged Mark and/or the goods or services for which
`
`Applicant has used or intends to use Applicant’s Alleged Mark, on a monthly and
`
`annual basis, from the first date of such expenditures to the present.
`
`DOCUMENT REQUEST NO. 9
`
`All documents concerning all domain names that are registered or owned by
`
`Applicant, including but not limited to documents identifying the date Applicant
`
`registered and/or obtained each such domain name.
`
`

`
`DOCUMENT REQ QUEST NO. 10
`
`Documents sufficient to identify Applicant’s relationship with any
`
`individuals or companies, such as but not limited to any franchisees, licensees, and
`
`third party contractual relationships, concerning Applicant’s Alleged Mark.
`
`DOCUMENT RE§ QUEST NO. ll
`
`All consumer studies, surveys, and market research reports concerning the
`
`marketing, strategic planning, advertising, and promotional sale of services offered
`
`and provided by Applicant under Applicant’s Alleged Mark including, but not
`
`limited to, studies concerning: (a) consumer reaction to Applicant’s Alleged Mark;
`
`(b) public awareness or recognition of Applicant’s Alleged Mark; and/or (c)
`
`secondary meaning in Applicant’s Alleged Mark.
`
`DOCUMENT RES QUEST NO. 12
`
`All documents concerning media coverage of Applicant’s goods

This document is available on Docket Alarm but you must sign up to view it.


Or .

Accessing this document will incur an additional charge of $.

After purchase, you can access this document again without charge.

Accept $ Charge
throbber

Still Working On It

This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.

Give it another minute or two to complete, and then try the refresh button.

throbber

A few More Minutes ... Still Working

It can take up to 5 minutes for us to download a document if the court servers are running slowly.

Thank you for your continued patience.

This document could not be displayed.

We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.

Your account does not support viewing this document.

You need a Paid Account to view this document. Click here to change your account type.

Your account does not support viewing this document.

Set your membership status to view this document.

With a Docket Alarm membership, you'll get a whole lot more, including:

  • Up-to-date information for this case.
  • Email alerts whenever there is an update.
  • Full text search for other cases.
  • Get email alerts whenever a new case matches your search.

Become a Member

One Moment Please

The filing “” is large (MB) and is being downloaded.

Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.

Your document is on its way!

If you do not receive the document in five minutes, contact support at support@docketalarm.com.

Sealed Document

We are unable to display this document, it may be under a court ordered seal.

If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.


Access Government Site

We are redirecting you
to a mobile optimized page.





Document Unreadable or Corrupt

Refresh this Document
Go to the Docket

We are unable to display this document.

Refresh this Document
Go to the Docket