throbber
Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA302634
`ESTTA Tracking number:
`08/24/2009
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91183580
`Plaintiff
`The Coca-Cola Company
`Bruce W, Baber
`King & Spalding LLP
`1180 Peachtree Street
`Atlanta, GA 30309
`UNITED STATES
`pguibault@na.ko.com, jodenton@na.ko.com, bbarer@kslaw.com
`Motion for Sanctions
`Bruce W. Baber
`bbaber@kslaw.com, ebrown@kslaw.com
`/Bruce W. Baber/
`08/24/2009
`Motion for Sanctions and Entry of Judgment (LTZ).pdf ( 37 pages )(1067446
`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
`
`THE COCA—COLA COMPANY,
`
`Opposer,
`
`LTZ, LLC,
`
`Applicant.
`
`OPPOSITION
`
`NO. 91183580
`
`\z\./\./\/\/\2\./\/\/\J
`
`OPPOSER’S MOTION FOR
`
`SANCTIONS AND ENTRY OF JUDGMENT
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`NOW COMES THE COCA—COLA COMPANY (“TCCC” or “Opposer”), the
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`opposer in the above—captioned matter, and, by and through its undersigned counsel
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`and in accordance with Rule 37 of the Federal Rules of Civil Procedure and Rule
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`2.120(g)(2) of the Trademark Rules of Practice, hereby moves before the Trademark
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`Trial and Appeal Board (the “Board”) for entry of an order imposing sanctions on
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`applicant LTZ, LLC (“LTZ” or “Applicant”) for failure to provide any responses to
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`Opposer’s discovery requests that were served on Applicant on March 23, 2009.
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`Opposer requests, in accordance with Rule 2.120(g)(2), that the Board strike the
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`Answer filed by Applicant and enterjudgment in favor of TCCC and against Applicant,
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`sustaining the Opposition and refusing registration to the mark LESS THAN ZERO as
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`shown in Application Serial No. 77—223,034.
`
`In support of this motion, TCCC respectfully shows that TCCC served on
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`Applicant’s counsel on March 23, 2009 Opposer’s First Set of Interrogatories
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`

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`(hereinafter “interrogatories”) and Opposer’s First Set of Requests for Production of
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`Documents and Things (hereinafter “Document Requests”). Appiicant’s responses to
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`Opposer’s interrogatories and Document Requests were due on April 27, 2009. True
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`and correct copies of Opposer’s interrogatories and Document Requests are attached
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`hereto as Exhibits A and B.
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`in further support hereof, Opposer shows that counsel for Applicant informed
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`counsel for Opposer in an e—maii message dated March 27, 2009, that Appiicant’s
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`responses to the interrogatories and Document Requests would not be forthcoming. A
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`copy of the March 27, 2009 e—maii to Bruce W. Baber, counsel for Opposer, from
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`Christopher M. Law, counsel for Applicant, is attached hereto as Exhibit C.
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`Applicants failure to provide any response to Opposer’s interrogatories and
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`Document Requests and counsei’s March 27, 2009 email stating that Applicant would
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`not be providing responses to the interrogatories and Document Requests are sufficient
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`to warrant sanctions against Applicant. 37 C.F.R. § 2.120(g)(2). Appiicant’s counsel
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`withdrew its representation of Applicant on May 13, 2009 and Applicant began
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`representing itself on June 17, 2009. To date, Applicant still has not responded to
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`Opposer’s interrogatories or Document Requests.
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`WHEREFORE, for the foregoing reasons, and those stated more fully in the
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`accompanying memorandum of law filed concurrently herewith in accordance with 37
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`C.F.R. § 2.127(a), Opposer The Coca—Coia Company respectfully requests that the
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`Board enter sanctions against Applicant, namely, that the Board strike the Answer of
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`Applicant filed on August 25, 2008 and enterjudgment in favor of TCCC and against
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`

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`Applicant, sustaining Opposer’s Opposition and refusing registration to the mark LESS
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`THAN ZERO, as shown in Applicants Application Serial No. 77—223,034.
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`This 24th day of August, 2009.
`
`Respectfully submitted,
`
`KING & SPALDING LLP
`
`
`
` Bruc
`
`Emily B. 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
`
`

`
`EXHIBITA
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`THE COCA—COLA COMPANY,
`Opposer,
`
`v.
`LTZ, LLC,
`
`Applicant.
`
`)
`I
`I
`I
`I
`
`OPPOSITION
`NO. 91183580
`
`OPPOSER'S FIRST SET OF
`INTERROGATORIES TO LTZ LLC
`
`Pursuant to the Trademark Rules of Practice and Rule 33 of the Federal Rules of
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`Civil Procedure, Opposer The Coca—Cola Company (“TCCC" or “Opposer”) hereby
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`requests that applicant LTZ, LLC (“LTZ" or "Applicant") serve upon TCCC sworn
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`answers to the interrogatories set forth herein within thirty (30) days after the service
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`hereof.
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`These interrogatories are continuing in nature and any information discovered
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`subsequent to the service of LTZ's answers should be brought to the attention of TCCC
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`through the service of supplemental answers. within a reasonable time following such
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`discovery, pursuant to Rule 26 of the Federal Rules of Civil Procedure.
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`LTZ should respond to these interrogatories in accordance with the following
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`definitions and instructions:
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`

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`DEFINITIONS
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`The following definitions apply to each of these interrogatories, and each of the
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`terms defined below, when used in any interrogatory, definition, or instruction, shall
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`have the meaning given herein:
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`1.
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`“You,” “your," and/or “LTZ" means applicant LTZ, LLC, and all persons
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`and entities acting or purporting to act on its behalf, including officers, directors,
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`employees, partners, agents, licensees, corporate parents, subsidiaries, and affiliates.
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`2.
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`3.
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`“TCCC" shall refer to applicant and/oropposer The Coca-Cola Company.
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`“Person" means an individual, firm, partnership, corporation,
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`proprietorship, association, or any other organization or entity.
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`4.
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`To “identify" means:
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`(a)
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`in connection with a natural person, to state his or her full name,
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`title, and job description, if applicable, and his or her present or last
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`known business and home addresses and telephone numbers;
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`(b)
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`in connection with a fin'n, partnership, corporation, proprietorship,
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`association, or other entity, to state its name, the nature of the
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`entity, and each of its present or last known addresses and
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`telephone numbers;
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`(0)
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`in connection with a document, to describe the document (including
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`both documents in your possession, custody or control, and all
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`other documents of which you have knowledge), setting forth its
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`date, title, author(s), addressee(s), parties thereto, and the
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`substance thereof, with such reasonable particularity as would be
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`

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`sufficient to permit them to be sought by subpoenas duces tecum
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`or under the provisions of Rule 34 of the Federal Rules of Civil
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`Procedure; and
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`(d)
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`in connection with an oral statement or communication, to (i) state
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`when and where it was made; (ii) identify each of the makers and
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`recipients thereof, in addition to all others present; (iii) indicate the
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`medium of communication; and (iv) state the substance of the
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`statement or communication.
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`5.
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`"Document" is defined to be synonymous in meaning and equal in scope
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`to the use of that term in Rule 34 of the Federal Rules of Civil Procedure and the phrase
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`“writings and recordings” as defined by Rule 1001 of the Federal Rules of Evidence,
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`and includes without limitation any kind of written, typewritten, printed, graphic, or
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`recorded material whatsoever, including without limitation notes, memoranda, letters,
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`reports, studies, electronic mail messages, telegrams, publications, contracts, manuals,
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`business plans, proposals, licenses, drawings, designs, data sheets, diaries, logs,
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`specifications, brochures, product or service descriptions, periodicals, schematics,
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`blueprints, recordings, summaries, pamphlets, books, prospectuses, interoffice and intra
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`office communications, offers, notations of any sort of conversations, working papers,
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`applications, permits, surveys, indices, telephone calls, meeting minutes, databases,
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`electronic files, software, transcriptions of recordings, computer tapes, diskettes, or
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`other magnetic media, bank checks, vouchers, charge slips, invoices, expense account
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`reports, hotel charges, receipts, freight bills, agreements, corporate resolutions,
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`minutes, books, binders, accounts, photographs, and business records. The tenn
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`

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`”document" shall include all non-identical copies, no matter how prepared; all drafts
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`prepared in connection with such documents, whether used or not; and any deleted or
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`erased documents that may be retrieved from hard drives, floppy disks, electronic back-
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`up files, or any other back—up systems, regardless of location, together with all
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`attachments thereto or enclosures therewith, in the possession, custody or control of
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`Royal Crown or any attorney, employee, agent, or representative of Royal Crown.
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`6.
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`The term “concerning” shall be construed in the broadest sense to mean
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`relating to, referring to, describing, reflecting, alluding to, responding to, connected with,
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`commenting on, in respect of, about, regarding, discussing, showing, analyzing,
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`constituting, and/or evidencing, in any manner, whether directly or indirectly, the subject
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`matter of the request.
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`7.
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`The term “Applicant's Alleged Mark” means Applicant’s alleged trademark
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`LESS THAN ZERO, as shown in U.S. Trademark Application Serial No. 77—223,034 (the
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`“Application").
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`8.
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`The term “Opposer’s ZERO Marks" shall mean and refer to TCCC’s marks
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`COCA-COLA ZERO, COKE ZERO, SPRlTE ZERO, PIBB ZERO, FANTA ZERO,
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`VAULT ZERO, any formatives or variants thereof, including all marks that are the
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`subject of the applications that are involved in these proceedings; and any other name
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`or mark used by TCCC that includes the word "zero".
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`9.
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`The term “Opposer’s Applications" shall mean and refer to any US.
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`Trademark Applications filed by TCCC for any of Opposer’s ZERO Marks.
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`10.
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`“Applicant’s Goods” means any goods sold, offered for sale, or distributed,
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`or intended to be sold, offered for sale, or distributed, by you at any time, on or in
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`

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`connection with which Applicant's Alleged Mark was used, including but not limited to
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`the goods in international Class 32 identified in the Application.
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`11.
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`“Applicant’s Services" means any services sold, offered for sale, or
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`distributed, or intended to be sold, offered for sale, or distributed, by you at any time, in
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`connection with which Applicant’s Alleged Mark was used.
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`12.
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`"Appiicant’s Class 32 Goods” shall mean the goods identified in
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`application Serial Number 77-223,034, namely "energy drinks, soda pops and flavored
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`waters.”
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`iNSTRUCTlONS
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`1.
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`in each instance where an lnterrogatory is answered on information and
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`belief, it is requested that Applicant set forth the basis for such information and belief.
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`2.
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`In each instance where Applicant denies knowledge or information
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`sufficient to answer the lnterrogatory, it is requested that Applicant set forth the name
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`and address of each person, if any, known to have such knowledge or information.
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`3.
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`in each instance where the existence of a document is disclosed,
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`Applicant is requested to attach a copy of such document to its answers.
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`if such
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`document is not in Applicant’s possession, custody or control, it is requested that
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`Applicant state the name and address of each person known to Applicant to have such
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`possession, custody or control, and identify which documents are in such person's
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`possession, custody or control.
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`4.
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`in any instance in which an lnterrogatory is objected to for any reason,
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`including privilege, it is requested that all of the grounds for such objection be stated in
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`detail and that the following information be provided:
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`

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`for each document, state:
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`(i) the type of document; (ii) the general
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`subject matter of the document; (iii) the date of the document; and
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`(iv) such other information as is sufficient to identify the document
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`for a subpoena duces tecum, including, where appropriate, the
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`author of the document, the addressee of the document, and,
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`where not apparent, the relationship of the author and addressee to
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`each other;
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`for any oral communications, state (i) the name of the person
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`making the communication; (ii) the names of persons present while
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`the communication was made and, where not apparent, the
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`relationship of the persons present to the person making the
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`communication; (iii) the date and place of communications; and
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`(iv) the general subject matter of the communication.
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`5.
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`in interpreting these discovery requests, definitions, and instructions, the
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`following shall apply:
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`(a)
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`(b)
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`(0)
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`any masculine, feminine, or neutral term includes all other genders;
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`the singular includes the plural, and the plural includes the singular:
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`each of the words “any," "each," “all," and “even/' includes and
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`encompasses the others; and
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`(d)
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`the words “or,” "and,” “and/or,” and “including" shall be read
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`inclusively rather than exclusively.
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`

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`INTERROGATORY NO. 1
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`lNTERROGATORlES
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`identify each form of Applicant's Alleged Mark, including each different form or
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`variation, if any, and proposed versions thereof (whether or not such form or proposed
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`version thereof was ever used) that Applicant has ever used, intended to use, or
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`considered for use for or in connection with any services and/or goods of any kind, and
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`for each such form or variation, describe the manner in which such form or variation
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`was used or is or was intended or considered for use, and state the time period during
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`which each such form or variation was or has been used or intended or considered for
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`U58.
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`INTERROGATORY NO. 2
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`identify specifically all goods and/or services, including but not limited to any of
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`Applicant's Goods, Applicant's Class 32 Goods or Applicant’s Services, that you have
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`sold, offered for sale, rendered or distributed, or intend to sell, offer for sale, render or
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`distribute, on or in connection with which you have used or intend to use Applicant's
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`Alleged Mark or any mark or phrase identified in response to lnterrogatory No. 1.
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`INTERROGATORY NO. 3
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`For each type of good and/or service identified in your answer to lnterrogatory
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`No. 2, including but not limited to any of the goods identified in the Application that has
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`been offered, sold or rendered in interstate or foreign commerce; (a) state the date on
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`which such good or service was first provided to a customer; (b) identify the manner in
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`which such goods and/or services are provided to consumers; and (c) identify the
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`

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`geographic areas in the United States in which such goods or services have been
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`offered or provided since the date of first use of Applicant’s Alleged Mark.
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`INTERROGATORY NO. 4
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`State the date(s) of Applicant's first use and flrst use in commerce of Applicant’s
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`Alleged Mark, and for each such date, identify the type of goods and/or services on or in
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`connection with which Applicant's Alleged Mark was used.
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`WTERROGATORY NO. 5
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`State the facts and circumstances surrounding Applicant's selection, adoption,
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`and use of Applicant’s Alleged Mark for each type of good or service identified in your
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`answerto interrogatory 1 above, including but not limited to Applicant's Class 32 Goods,
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`including but not limited to:
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`(a)
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`describe the reasoning and rationale behind Applicant's adoption of
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`Applicants Alleged Mark for each such type of good or service;
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`(b)
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`identify each person who originally conceived of and/or suggested
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`use of Applicant's Alleged Mark for each such type of good or
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`service; and
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`(c)
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`identify each person involved in the creation, evaluation, adoption,
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`selection, or design of Applicant's Alleged Mark for each such type
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`of good or service.
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`INTERROGATORY NO. 6
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`identify fully the ways in which Applicant advertises, promotes or markets or
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`intends to advertise, promote or market Applicant’s Goods, Applicant's Class 32 Goods
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`and/or Applicant's Services, including without limitation by identifying all forms of media
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`

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`and the specific media outlets that Applicant has used for such activities; identifying the
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`types of advertising, promotional and marketing activities engaged in by Applicant; and
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`stating the total dollar amounts spent by Applicant on a monthly and annual basis in
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`connection with such activities, from the first date of such expenditures to the present.
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`INTERROGATORY NO. 7
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`identify all advertisements, press releases, catalogs, circulars, leaflets, sales or
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`promotional literature, brochures, bulletins, fliers, signs, sales displays, posters, point of
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`purchase displays, and/or other promotional materials containing or bearing Applicant's
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`Alleged Mark that have been, or are intended to be, published, broadcast, or displayed,
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`and for each such advertisement or item:
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`(a)
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`state the date on which, or the inclusive dates during which, it was
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`or is intended to be published, broadcast, displayed, or distributed;
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`(b)
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`state the geographic area (by city, county, state and/or country)
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`where such advertisement or promotional item or copies thereof
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`were or are intended to be published, broadcast, displayed, or
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`distributed;
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`(c)
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`if a print media advertisement or promotional item, identify the
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`publication, by name, date, and page number, in which it appeared
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`or is scheduled to appear;
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`(d)
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`if a broadcast advertisement or promotional item, identify the radio
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`or television station or network over which such advertisement was
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`or is intended to be broadcast and state its length and the date and
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`time of broadcast;
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`

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`(e)
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`if an lnternet advertisement or promotional item, identify the web
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`site, by name, date, and uniform resource locator ("URL") address,
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`at which it appeared or is intended to appear; and
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`(f)
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`state the total amount of money spent or budgeted for such
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`advertisement, including but not limited to, cost of space or time,
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`production costs, and agency commissions.
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`WTERROGATORY NO. 8
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`Identify any and all conventions, trade shows, or exhibitions at which you have
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`promoted or plan to promote Applicant's Class 32 Goods.
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`INTERROGATORY NO. 9
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`identify in detail the channels of trade, including the types of retail stores and
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`other outlets, through which Applicant has sold or intends to sell goods or has offered or
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`intends to offer services using any of Applicant's Alleged Mark.
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`INTERROGATORY NO. 10
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`identify separately the geographic or territorial areas in the United States (by city,
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`county, and state) where Applicant has considered or conducted marketing or
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`advertising activities, or sold, offered for sale, rendered or distributed services and/or
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`goods, on or in connection with which Applicant has used any of Applicant's Alleged
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`Mark.
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`INTERROGATORY NO. 11
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`For Applicant’s Services and/or Applicant's Goods, state the total sales in the
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`United States in terms of
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`-10-
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`

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`(a)
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`the number of instances in which Applicant's Services were sold,
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`offered for sale, or rendered;
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`(b)
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`the number of Applicant's Goods sold, offered for sale. or
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`distributed; and
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`(c)
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`the dollar volume by year from the date of first use of Applicant's
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`Alleged Mark to the present.
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`INTERROGATORY NO. 12
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`Describe fully by age, gender, income or other demographic criteria or
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`characteristics the target customers and/or target markets for the services and/or goods
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`offered by Applicant in connection with which Applicant uses Applicant’s Alleged Mark.
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`lNTERROGATORY NO. 13
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`identify all tags, labels, invoices, decals. packaging, cartons, point of purchase
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`displays, web sites, and other written materials which show Applicant's use of
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`Applicant’s Alleged Mark in the United States in connection with Applicant’s goods or
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`services from its date of first use to the present, and specify the periods during which
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`each identified item was allegedly used.
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`in lieu of identifying each such document
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`and/or item, an actual sample of each may be attached to your answers to these
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`interrogatories, with dates and duration of use indicated.
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`INTERROGATORY NO. 14
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`State the date and circumstances on which Applicant first learned of Opposer's
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`use of Opposer’s ZERO Marks, any of Opposer’s Applications, or any uses by third
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`parties of marks containing the term “zero”; and identify all persons associated with
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`Applicant who learned of TCCC’s use of or applications on such date.
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`-11-
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`

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`WTERROGATORY NO. 15
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`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,
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`study, or market test (collectively, “Survey”) relating to Opposer’s ZERO Marks,
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`Applicant's Alleged Mark, orthird parties’ marks containing the term “zero,” including but
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`not limited to surveys relating to public recognition, consumer acceptance, secondary
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`meaning, or confusion, and if so, identify:
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`(a)
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`each individual or entity who was or is in charge of conducting each
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`such Survey; and
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`(b)
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`each person having knowledge of any report or summary of such
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`survey.
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`INTERROGATORY NO. 16
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`if Applicant, or any of Applicant's agents, representatives, or customers, have
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`received a written or verbal order, inquiry, complaint, or other communication that was
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`intended for TCCC, or that inquired whether Applicant or any goods or sen/ices sold or
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`distributed by Applicant are connected with, affiliated with, associated with, or
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`sponsored by Applicant, identify:
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`(a)
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`(b)
`
`(C)
`
`(d)
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`by whom it was communicated;
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`the date and place thereof;
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`the substance thereof; and
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`the manner in which the incident came to Applicant's attention,
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`including, without limitation, the method of communication.
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`-12-
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`

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`INTERROGATORY NO. 17
`
`identify all uses by Applicant of the word "zero" to describe any characteristics of
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`Applicant's goods and services.
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`INTERROGATORY NO. 18
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`identify with particularity any and all uses known to Applicant, other than uses by
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`Applicant and uses by Opposer, of any mark for food or beverage products that includes
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`the word “zero" and, for each such mark, identify the type of good on or in connection
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`with which such mark has been used.
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`INTERROGATORY NO. 19
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`identify each person employed by or otherwise associated or affiliated with
`
`Applicant who is knowledgeable regarding and, if applicable, has day-to—day operational
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`responsibility for each of the following:
`
`(a)
`
`(b)
`
`(c)
`
`(d)
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`the history and business operations of Applicant;
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`the marketing, advertising and promotional activities of Applicant,
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`including but not limited to marketing, advertising and promotional
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`activities relating to use of Applicant's Alleged Mark;
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`Applicant's use of Applicant’s Alleged Mark;
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`the channels of trade and distribution methods used by Applicant
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`for its products; and
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`(e)
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`the unit and dollar volume of sales of any products or services by
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`Applicant since the time Applicant began use of Applicant's Alleged
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`Mark.
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`-13-
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`

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`lNTERROGATORY NO. 20
`
`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
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`matter of his or her expected testimony and, for each such expert, the substance of the
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`facts and opinions on which he or she is expected to testify and the basis for his or her
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`qualification as an expert.
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`WTERROGATORY NO. 21
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`identify any and all grants, licenses, assignments or other agreements
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`concerning Applicant's Alleged Mark or any amendment or modification thereof.
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`INTERROGATORY NO. 22
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`identify all domain names that are registered or owned by Applicant concerning
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`Applicant's Alleged Mark or Applicants Goods and/or Applicant's Services.
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`WTERROGATORY NO. 23
`
`Identify all disputes, disagreements or controversies between Applicant and any
`
`party, and all legal or administrative actions or proceedings of any type, otherthan this
`
`proceeding, in the United States 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.
`
`INTERROGATORY NO. 24
`
`identify all trademark or other searches, investigations or studies obtained by or
`
`on behalf of Applicant for any mark that consists of or includes the word “zero” or
`
`numeral
`
`-14-
`
`

`
`INTERROGATORY NO. 25
`
`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
`
`(c)
`
`where no information or only partial information is given in such
`
`Answer, describe the efforts made to locate information responsive
`
`to such lnterrogatory.
`
`Dated: March
`
`2009
`
`KlNG & SPALDING LLP
`
`
`
`Bruce W. Baber
`
`Emily B. Brown
`
`1180 Peachtree Street. N.E.
`
`Atlanta, Georgia 30309
`Telephone: (404) 572-4600
`Facsimile: (404) 572-5145
`
`Attorneys for Opposer
`THE COCA~COLA COMPANY
`
`-15-
`
`

`
`CERTIFICATE OF SERVICE
`
`This is to certify that i have this day served the foregoing Opposer’s First Set Of
`
`interrogatories To LTZ, LLC on 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. Jason D. Firth
`Brownstein Hyatt Farber Schreck, LLP
`100 City Parkway, Suite 1600
`Las Vegas, Nevada 89106-4614
`
`This
`
`,,.L
`
`day of March, 2009.
`
`
`
`

`
`EXHIBIT B
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`THE COCA—COLA COMPANY,
`
`v.
`
`LTZ, LLC.
`
`Opposer,
`
`Applicant.
`
`\)\J&/$z\/\y\./\;\/
`
`OPPOSITION
`
`NO. 91183580
`
`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 (“Opposed or “TCCC”) hereby
`
`requests that applicant LTZ, LLC (“App|icant" or “LTZ") 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 to LTZ, LLC.
`
`

`
`lNSTRUCTlONS
`
`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)
`
`(c)
`
`the bases for any such claim of privilege or immunity; and
`
`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 of, 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 REQUESTS
`
`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; d) the officers and directors of
`
`Applicant; and e) the individuals responsible for any business activities of Applicant in
`
`the United States.
`
`DOCUMENT REQUEST 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, Applicant’s Class 32 Goods and Applicant’s Services.
`
`‘DOCUMENT REQUEST 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 or othen/vise evidencing 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, whetherformal 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/or 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 REQUEST 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
`
`dat

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