Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA456658
`ESTTA Tracking number:
`02/15/2012
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91188816
`Plaintiff
`Central Garden & Pet Company
`RUSSELL S BURNSIDE
`GREENBERG DAUBER EPSTEIN TUCKER PC
`ONE GATEWAY CENTER, SUITE 600
`NEWARK, NJ 07102
`UNITED STATES
`rburnside@greenbergdauber.com, tslocum@greenbergdauber.com
`Testimony For Plaintiff
`Russell S. Burnside, Esq.
`rburnside@greenbergdauber.com,
`tslocum@greenbergdauber.com,,jcarlick@greenbergdauber.com
`/RSB/
`02/15/2012
`Johnson Transcript 9-16-10 REDACTED.pdf ( 20 pages )(2126756 bytes )
`Opposer Exhibit 36.pdf ( 1 page )(133664 bytes )
`Opposer Exhibit 37.pdf ( 2 pages )(411296 bytes )
`Opposer Exhibit 38.pdf ( 18 pages )(698494 bytes )
`
`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
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`Signature
`Date
`Attachments
`
`

`
`GREENBERG DAUBER EPSTEIN & TUCKER
`
`A Professional Corporation
`One Gateway Center, Suite 600
`Newark, New Jersey 07102
`
`(973) 643—3700
`Attorneys for Opposer/Petitioner Central Garden & Per Company
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`CENTRAL GARDEN & PET COMPANY,
`
`Opposer/P etitioner,
`
`V.
`
`DOSKOCIL MANUFACTURING
`
`COMPANY, INC. f/k/a ASPEN PET
`
`PRODUCTS, INC.
`
`*
`
`Applicant/Registrant
`
`:
`:
`
`.
`
`:
`
`CONSOLIDATED PROCEEDINGS
`Opposition No. 91188816
`Opposition No. 91 190058
`Opposition No. 92050852
`
`TRANSCRIPT OF THE DEPOSITION OF MARK JOHNSON, SEPTEMBER 16, 2010
`AND DEPOSITION EXHIBITS 36 THROUGH 38
`
`REDACTED PURSUANT TO PROTECTIVE ORDER
`
`Certain materials attached to this filing have been designated highly confidential pursuant
`to a protective order and have been REDACTED.
`
`
`
`

`
`Central Gardens-9-16
`
`Central Garden vs Doskocil
`
`9/16/2010
`
`Condensed Transcript
`
`Prepared by:
`
`bob
`
`Robert Cirillo, Inc.
`
`Tuesday, September 28, 2010
`
`Dep. of Mark Johnson
`
`

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`1
`2
`In the matter of U.S. Trademark Application
`3 Serial No. 77/474, 444
`4 “P:/fi§'L;&§ Desist‘
`Published in the Official Gazette October 14, 2008
`5 ____________ -_
`F
`6 CENTRAL GARDEN& PET
`7 COMPANY‘
`DEPOSWONO '
`8
`0i>i>°ser-
`MARKJOHNSON
`
`vs.
`9 DOSKOUL MANUFACTURING
`= 10 EEMPANY, mic, f/k/a ASPEN
`11
`TPRODUC 8’ INC"
`APP“°a“i~
`12
`Opposition No. 91188816
`l
`"""""" "
`1
`TRANSCRIPT of the testimony 0‘ MARK JOHNSON’
`S 15
`i 16 witness called for Oral Examination in the
`17 above-entitled action, as taken by and before DONNA
`18 BRUNCK, Certified Court Reporter, License No.
`19 Xl01487, at the offices of GREENBERG DAUBER EPSTEIN
`i 20 &TUCKER, One Gateway Center, Newark, New Jersey, on
`21 September 16, 2010, commencing at 9:11 a.m.
`22
`23
`
`CROfBI<EjRCT CIRALLO. INC.
`erti ie
`ourt
`eporters
`182 Columbia Turnpike
`-
`-
`F‘°'h3;”3_:f£<:1’:§‘fJ9'SeY 07932
`
`i 24
`25
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`‘
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`,
`
`; é}:Ei°EE1é°~E:é*i;/EUl;§§EPSTE'N & TUCKER
`av: RUSSELL s. BURNSlDE, ESQ.
`Suite 500
`One Gateway Center
`Newark New Jersey 07102
`973-643-3700
`5 Att
`f O
`6 Doogseiiyi 8?1/vl—Fi)l‘1Oi\ft:_3\r/, LLP
`BY; GREGORY s_ TAivii<iN, ESQ_
`370 Seventeenth Street
`Suite 4700
`Denver Colorado 802026647
`Attorneys for Applicant
`
`3
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`4
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`7
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`13
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`1 21
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`Centrai 'Garden vs Doskocil
`
`Page 1
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`1‘
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`Page 3
`1 MARK JOHNSON, having been duly sworn according tol
`2 law, testifies as follows:
`3
`MR. BURNSIDE: We are here to take
`ii 4
`l 5 the testimony of Mark Johnson in the matter of
`6 Central Garden & Pet Company, opposer, versus
`7 Doskocil, applicant. Mr. Johnson has been sworn in,
`8 and I believe that you want to.
`l 9
`MR. TAMKIN:
`i do want to make a
`, 10 record.
`I want to state pursuant to CFR 2.123(e)3
`3 11 that we are noting our protest to this deposition.
`12 Mr. Johnson is a witness who is not disclosed in the
`13 pretrial disclosures. Mr. Johnson was not disclosed
`14 during the discovery period in the case. To the
`15 extent that Mr. Johnson was disclosed after the
`16 discovery period in the case in a supplemental
`5 17 disclosure, 1 do note for the record that there's no
`.
`.
`.
`,
`.
`l
`18 mformaflon pro‘/‘ded about Mr- Johnson 3 testimony:
`19 only his title and that he is a person with
`,
`I
`20 knowledge concerning opposers sales of goods under
`21 or in Connection with the Zma mark
`-
`I've been advised that Mr. Johnson is
`, 22
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`.
`.
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`i 23 the president of TFH Publications and vice president
`24 of TFH Publications and is not an employee of the
`25 division that sells the Zilla or R—Zilla branded
`
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`Page 2
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`Page 4
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`1 products. And accordingly, I don't believe he is
`. 2 appromate '° teSt'fV'
`,
`3
`To the extent he's being offered as
`4 an expert witness, l note that expert witness
`5 disclosures were not ever made.
`§
`.
`-
`; 6
`That being said, pursuant to the
`l
`7 rules, I also understand that l am supposed to make
`l 8 a note of the protest and will file a motion to
`, 9 strike if appropriate after the fact, and ou will
`l
`-
`-
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`-y
`,
`10 have an opportunity to respond and this deposition
`A
`is to proceed‘ BUR
`I will reserve my
`NSIDE:
`MR.
`i
`13 response until the appropriate time.
`l
`14 DlRECT EXAl\/‘ilNATiON BY MR. l3URNSlDE:
`i
`15
`Q.
`Mr. Johnson let's get some
`i
`’
`16 background on you. When and where did you graduate i
`17 from college?
`18
`A.
`l attended Union College in
`19 Schenectady, New York.
`l graduated in 1973 with a
`1 20 bachelor's, masters in economics, minor in Russian
`,
`‘ 21 literature.
`Any subsequent education?
`22
`Q.
`I attended Rutgers Graduate School of
`:23
`A.
`l 24 Business, graduated in 1980 with an MBA, ma'or in
`,
`J
`25 marketing.
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`Page 5
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`Page 7 ,
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`And when was that?
`Q.
`1
`Graduation date was 1980.
`A.
`2
`What was your first gainful
`Q.
`l 3
`l 4 employment following your educational studies?
`_
`5
`A.
`After Union i went to work for
`A‘ 6 Procter & Gamble where l was part of a new product
`7 sales launch team, and I worked for Procter & Gamble
`8 for approximately two-and—a-half years.
`3
`‘ 9
`Q.
`What were your responsibilities on
`10 the new product team?
`l 11
`A.
`We were charged with launching in
`12 certain new territories items such as Pringles
`13 potato chips, Folgers coffee, to large retailers and
`14 my area was West Virginia and then subsequently
`1 15 Rochester, New York, so I was really part of a sales
`‘ 16 team of experts on select new products.
`17
`Q.
`How long were you at P&G?
`; 18
`A.
`I worked at P&G from July of 1973
`19 until January of 1976.
`l 20
`Q.
`What was your next gainful
`21 employment?
`22
`A.
`in January of '76 I joined the Hartz
`23 Mountain Corporation as a marketing manager or
`24 coordinator.
`25
`Q.
`What were your responsibilities as
`
`g
`
`1 marketing manager or coordinator?
`2
`A.
`Well, I worked for Hartz for probably
`3 20 years in many different capacities, growing every
`R
`l 4 couple of years into a new role, culminating in an
`5 executive role running marketing and sales for the
`, 6 corporation. My first job in marketing at Hartz was
`J 7 promotional in nature, and subsequentjobsjust
`l 8 added additional responsibilities and oversight.
`9
`Q.
`When did you leave Hartz Mountain?
`10
`A.
`l left Hartz in 1997.
`k 11
`Q.
`What type of experience did you have
`1 12 at Hartz with respect to new product development?
`1 13
`A.
`We had a new product development team
`14 approach, much like many companies have get, and l
`15 was part of the team that launched new products.
`16 The launch would involve product development, brand
`l 17 strategy, names, artwork and graphics, advertising,
`l 18 public relations, all the activities to support the,
`l 19 both the selling efforts on the part of the sales
`20 force and the communication with the consumer to
`l 21 bring the names and artwork and graphics to their
`22 attention.
`What was your first position at TFH?
`23
`Q.
`I started at TFH as the senior Vice
`24
`A.
`25 president of sales and marketing.
`Central Garden vs Doskocil
`
`Q. What were your responsibilities as
`1
`2 the senior vice president of sales and marketing?
`3
`A.
`My role was to lead and guide the
`4 sales force, to build the sales force, to develop
`5 the skills of the existing people and bring new
`6 people into the organization, and also to develop
`7 and launch new products, to package them
`8 appropriately, to name and price them appropriately,
`9 and to blend the product launch plans with the
`10 expectations of the sales force and the consumers
`l 11 line.
`What is your current position at TFH?
`1 12
`Q.
`I'm the executive vice president of
`13
`A.
`14 TFHO, Nylabone.
`15
`Q. What is Nylabone?
`16
`A.
`Nylabone is a brand name that we use
`17 across a variety of different aspects of our
`I 18 business.
`it's actually a company that we bought 40
`, 19 or 50 years ago,a
`20:
`1 21
`Q. What type of products does Nylabone
`‘ 22 have?
`Nylabone is used to cover dog toys
`23
`A.
`24 and chews, treats, biscuits, cat toys and dog plush
`1 25 toys.
`Page 6 «
`Does TFH have any other businesses
`Q.
`1
`,
`, 2 besides Nylabone?
`I
`3
`A.
`The TFH subsidiary of Central has a
`» 4 publishing business. We publish books about pets,
`5 publish a magazine called TFH Tropical Fish Hobbyist
`6 Magazine, so our business is integrated under one
`7 company called TFH,
`8
`9
`What are the distribution channels
`Q.
`10
`l 11 for Nylabone products?
`1 12
`l 13
`14
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`17
`Q. What about what is referred to as
`18
`19 food and drug.
`is Nylabone distributed or sold
`i 20 through those channels?
`21
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`23 »
`1 24
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`Page 8
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`Hl5ages5—8
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`Page 11 i
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`I'm going to object.
`MR. TAMKEN:
`1
`2 Move to strike the last two responses, and this
`3 question also seems to be trying to elicit expert
`4 testimony.
`5
`Q.
`
`You can answer.
`
`Q.
`
`Who were some of the primary
`
`competitors of TFH?
`A.
`We have a great number of large
`competitors. They range from Kong, Pet Stages,
`Procter & Gamble, Mars, Petrnate, Doskocil, Booda,
`
`Aspen.
`When is TFH's year—end?
`Q.
`We close our fiscal year as does the
`A.
`rest of Central Garden & Pet the last week of
`
`September, so by way of example, this year it's
`September 24th or 25th.
`Q.
`What is branding?
`A.
`Branding is the process a company or
`
`business goes through to give their merchandise a
`name, a personality, a brand promise to its
`consumers, so that consumers as they walk through
`
`stores can recognize the name of the product, the
`
`quality of the product, and the area in which the
`product operates without necessarily having to go
`pick up the package and read it. The brand name
`becomes the nomenclature used to represent a product
`
`as a family name, and branding is really the value
`Page 10 ‘
`to a product. The more important the brand name,
`the more valuable the product is.
`Branding in America today is more
`important than ever, because as retailers, you get
`to manage their lines of product in the stores.
`They have a tendency to shrink the variety of goods,
`and the brand name protects the company's product
`line against that shrinkage. The more famous the
`brand name, the greater the defensive capability of
`that brand to resist shrinkage in stores, so a lot
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`A.
`Q.
`
`Could you repeat the question?
`Sure. Let me rephrase it.
`
`What steps do you take when you want
`8
`9 to create a new brand?
`MR. TAMKIN: Same objection.
`A company creates a new brand with
`
`A.
`
`11
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`12 many steps to it and takes a long time to develop a
`, 13 brand and make it recognizable. You start with a
`14 great brand name, one that's unique, has a graphic
`15 or a design to it that's recognizable. You then
`
`i 16 spend time and money advertising the brand name to
`17 the consumers. You do public relation stories and
`5 18 press releases. You spend money on promotional
`19 programs so that the brand presence, the brand name
`20 gets well displayed in stores. You make sure that
`21 the press has as much information about the brand as
`22 you can. And you over time seek to extend the brand
`23 presence across more products and in fact sometimes
`24 more categories where it's appropriate so that it
`25 gets more recognition.
`
`Page 12
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`Good brands last a very long time,
`Tide being a good example. Tide's been around for a
`long time.
`When you say extend the brand
`Q.
`presence to other products and categories, what do
`you mean by that?
`A.
`Well, for example, Nylabone as a
`brand name in the dog category is capable of being a
`valuable contributor to the cat toy category also,
`because there's a great deal of overlap between dog
`owners and cat owners, so a Nylabone dog toy
`
`€.Ol\)-—\©LO0J\lO3(J1-I>0Ol\J—A
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`customer likely has a cat also, so when they see a
`3
`Nylabone cat toy, they'll recognize it as the same
`1
`14 quality as the dog toy that they already own, so
`, 15 extending the Nylabone name across to cat toys would '
`16 have a plus for the cat toy business and would have
`17 a plus for the Nylabone brand name.
`18
`Q.
`What is sub—branding?
`MR. TAMKiN: Note a continuing
`
`‘
`
`20 objection to all of these questions that are really
`J21 seeking expert testimony. You are more than welcome
`322 to answer the questions.
`ijust am noting my
`l23 objection that this appears to be seeking your
`:24 expertise in branding.
`125
`A.
`A sub—brand is also a brand but it's
`
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`Pages 9 — 12
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`of energy goes into developing brands, to supporting
`brands, managing the brands, so that it has the
`right attitude, the right personality to the
`marketplace. Defending and protecting your brand is
`really the responsibility of the corporation.
`
`
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`When you say attitude and
`Q.
`17 personality, what do you mean?
`18
`A.
`Well, a brand has a, an expectation
`19 on the part of its consumers. A brand like Tide
`20 stands for cleaning, and
`21
`22
`23
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`2
`I 4
`Q.
`What do you do when you introduce a
`ii 25 new brand? What steps do you take?
`Central Garden vs iDoskocil
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`Page 17
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`Page 19 ;
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`Yes, I am. There are many store
`A.
`layouts in each chain that part of my
`responsibilities is to visit stores so I'm
`reasonably familiar with their formats.
`Q.
`Let's talk about Petco. What is the
`
`store layouts in Petco with respect to dog, cat and
`reptile?
`
`MR. TAMKIN: Object to form.
`You can answer.
`Q.
`Petco has lots of different store
`A.
`layouts, but their general theme is to invite a
`consumer into the store for a destination shopping
`experience such as their search for their weekly or
`monthly purchase of dog food, and then to invite the
`consumer to walk back through the store, visiting
`other departments, because Petco is aware that
`there's so much cross~ownership of pets, they want
`the consumer to have a broad exposure to lots of
`different aspects of the industry much like the food
`store approach where milk is in the back of the
`store, and then as you filter back to the cash
`register, you go through lots of different
`
`departments, affording you an opportunity for an
`impulse purchase.
`80 while they have a dog department
`
`,
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`Q
`
`What are the demographics of the
`
`1
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`,
`
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`9 purchasers of Nylabone products?
`;
`i 10
`A.
`11
`i 12
`13
`14
`1
`15
`;
`Are you familiar with the method or
`Q.
`16
`17 approach that Nylabone customers employ to purchase 3
`18 products?
`19
`MR. TAMKIN: To purchase Nylabone
`: 20 products?
`21
`MR. BURNSlDE: Nylabone products,
`i 22 correct.
`r23
`524
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`25
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`Page 18 l
`and a cat department, they tend to merchandise them
`so that it's readily possible to shop the different
`departments at the same trip.
`Q.
`What observations, if any, have you
`made —— strike that.
`
`i
`
`Does Petco have in—store signage?
`Like most retailers, Petco's signage
`
`A.
`
`certainly in the pet industry hangs down from the
`ceiling to be visible from anyplace in the store, so
`if you are standing in the cat department, you can
`stand back and see the bird department and where the
`dog department is, and then they have signage in
`each of the subsections, food or toys that helps
`
`bring the consumer once they are in that section to
`a more narrower purchase opportunity.
`Q.
`Are you familiar with the
`demographics of Petco?
`MR. TAMKIN: Do you mean who shops
`
`there?
`Customer demographic, sorry?
`Q.
`Ask that question again.
`A.
`Are you familiar with the
`Q.
`demographics of the customers that shop in Petco?
`
`|
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`=
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`Q.
`
`Have you familiarized yourself with
`
`the demographics of purchasers of competitors’
`15 products?
`16
`i 17
`‘ 18
`1 19
`20
`
`
`21
`Q.
`How would you characterize the
`; 22 demographics of the typical purchaser of, for
`1 23 example, Petmate or Doskocil products?
`i24
`MR. TAMKIN: Object to form. Lacks
`25 foundation or calls or expert testimony.
`
`
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`Pages 17 — 20
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`Central Cs‘-arden vs Qoskocil
`
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`1
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`A.
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`
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`1
`2
`3
`4
`5
`1
`1 6
`Are you familiar with the Doskocii or
`Q.
`7
`8 Petmate website?
`9
`A.
`Yes, I am.
`10
`Q.
`How are you familiar with the website
`11
`-— strike that.
`12
`Why are you familiar with the
`‘ 13 website?
`Well, part of my responsibility is to
`; 14
`A.
`15 be familiar with competitors that we face in the
`5 16 marketplace, and to steer both our sales and
`17 marketing people to act accordingly, so part of that
`18 is store visits and research, part of that is
`R 19 purchasing of competitive toys and samples and items
`, 20 to evaluate, and part of that process is verifying
`21 through websites and trade shows and visits to trade
`22 show booths, so l'm familiarized with the people we
`23 compete with.
`24
`MR. BURNSIDE: Can we have this
`25 marked as Opposer 36.
`
`1 What is APPA?
`2
`A.
`APPA is a trade organization of
`3 manufacturers of pet products.
`it's a collection of
`4 maybe, i want to say, a thousand different
`E
`5 manufacturers. They have a trade show every year.
`1
`T 6 The manufacturers who are members attend the trade l
`7 show, display at the trade show. The APPA is an
`8 organizer of events that have a website of
`9 activities. They conduct this fairly significant
`10 research program every year and publish a tvvo—inch
`11 thick binder on trends in the marketplace. They try
`12 and enable the manufacturers of pet products to be
`9 13 successful with retailers.
`14
`Q.
`is TFH a member -- strike that.
`15
`is Central a member of APPA?
`A.
`16
`Yes, we are.
`in fact, TFH was one of
`17 the founding members of the organization in its
`‘ 18 infancy.
`19
`Q.
`20
`A.
`21 ago.
`You mentioned that APPA has a
`22
`Q.
`23 website. Are you familiar with the website?
`24
`A.
`Generally, yes, i am.
`25
`Q.
`How are you so familiar with it?
`
`»
`
`When was that approximately?
`Yeah, i would say several decades
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`Page 24
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`Well, because it's a source of
`A.
`1
`(Opposer 36, pet industry statistics,
`1
`i
`2 information about the industry and it, it's their
`l 2 marked for identification, as of this date.)
`3 announcement methodology for winners of contests
`3
`3
`Q.
`l'm going to show you what's been
`4 which we try and win all the time, so it's also a
`1 4 marked as Opposer 36. Have you seen this document
`5 good place to collect competitive information, press
`l
`5 before?
`6 releases and things of that sort.
`Yes, I have.
`6
`A.
`7
`MR. BURNSIDE: Mark this as Opposer
`What is it?
`7
`Q.
`8 37.
`This is a summary of the pet industry
`8
`A.
`(Opposer 37, APPA document, marked for
`9
`' 9 statistics that Aspen or Petmate uses, same
`10 identification, as of this date.)
`10 statistics I use, actually, from the study done by
`i‘ 11
`Q.
`Now, what are the requirements, if
`1 11 the Global or APPMA group.
`it's kind of a consumer
`12 any, to be a member of APPA?
`12 study and it's a trend study.
`13
`A.
`i think you have to be a manufacturer
`i 13
`Q.
`is there a difference between APPA
`14 of pet products, and quite frankly, i’ve forgotten
`14 and APPMA?
`15 whether there's a fee associated with joining the
`15
`A.
`APPMA changed its name a few years
`3 16 APPA or not. Most everybody in the industry is a
`l 16 ago to APPA. Othen/vise it's the same organization.
`17 member of the organization.
`17
`Q.
`How do you know that the statistics
`18
`Q.
`Now, you mentioned the APPA survey
`A 18 that appear on Opposer 36 are from the APPA study?
`19 that's put out. Who is that survey distributed to?
`19
`A.
`Because I had somebody in my office
`20
`A.
`Well, the survey is avaiiable to
`320 verify that the statistics matched the study. We
`I 21 everybody who is a member of the APPA, and it's done
`‘ 21 had the actual study, and we did a cross analysis to
`7 22 make sure that their numbers and the study's numbers 22 each year, generally timed around the trade show
`l 23 and our numbers were the same. They are, for the
`23 itself. The survey is reieased every year within a
`:24 most part.
`1 24 month or so of the trade show. The survey itself is
`l
`Let's talk a little bit about APPA.
`25
`Q.
`1 25 a study of severai thousand consumers and their
`Central Garden vs Doskocii
`Pages 21 - 24
`
`2
`
`L
`
`1
`
`
`
`

`
`-AA._...___
`
`-‘~CD(0O0\lO’>U'l-l»>-(A>l\)—-—\
`
`,12
`13
`
`'15
`
`H7
`
`Page 25
`trends, what they are buying, what their ownership
`of pets is, what their attitudes are.
`It's a good
`study that most of us in the industry use in one
`fashion or another during the course of the year,
`and most of us keep back copies for comparison
`
`purposes as trends change.
`Q.
`Let me show you what's been marked as
`Opposer 27. Can you identify that document?
`A.
`This looks like the front cover to
`this year's study and some pages from the study.
`Q.
`How does TFH and Central utilize the
`APPA study, if at all?
`A.
`We each, each of the subsidiaries of
`Central acts pretty much in the same method, but
`l'll talk about our process at TFH. We get value
`out of study in several ways. One, we use it to
`provide long—term direction for new product
`development, so we are developing products that meet
`the trends that the consumers seem to be following.
`We use the statistics in the study in presentations
`to customers as we develop, for example, a Power
`
`i
`I
`
`1
`
`It's
`Point presentation launching a new program.
`l
`common to populate that Power Point presentation
`1
`with facts, and this pet survey is a good source of
`i
`facts, because it's generally well-known. So we use
`Page 26 i‘
`,
`i
`i
`‘
`
`this in trade advertising for facts. We use it as a
`fact base for presentations to customers, and
`internally we use it in the development of new
`products to justify where we are going, where we are
`spending our time and our resources.
`Q.
`Let me show you what's been marked as
`Opposer 37. Can you identify that document?
`A.
`This looks like a clip from the APPMA
`website, APPA website, and services, summary of what
`they have, what they offer.
`Q.
`Have you seen this on the website in
`the past?
`A.
`
`Yes.
`
`‘WW, 7
`
`GDCO\lC)O'l-D(.0l\)—¥
`
`10
`
`,11
`12
`13
`'14
`
`its
`45
`
`§’17
`318
`we
`
`'20
`
`121
`i22
`l23
`24
`
`,25
`
`Do you know if other APPA members
`Q.
`utilize the APPA survey?
`A.
`Well, i think most of us who are
`members utilize this study to one degree or another.
`I'm certain that all the Central companies do.
`Hartz Mountain did. TFH does.
`l've seen
`
`presentations that the competitors make to my
`customers, and I've found reference to the study
`there too, so it's pretty universally used.
`Q.
`Now, you mentioned the APPA trade
`show. What is that called?
`
`A.
`
`Today the term is the Globai Pet
`
`Central Garden vs Doskocil
`
`Page 27
`
`©LOO0\lO'>U‘l—-l>0J|\)—-\
`
`Exposition, i believe.
`Q.
`Can you describe that trade show?
`A.
`It's a large convention center.
`it's
`a three-day event. Convention center typically is
`in Florida or San Diego, an easy to arrive at
`destination. The show itself has maybe 500, 700
`different booths. Booths range in size from
`hundreds and hundreds of square feet to small six by
`ten-foot booths. All major manufacturers attend the
`show, put a lot of energy into it.
`It's the
`industry's premier trade show.
`Q.
`Does Central have a booth at the
`show?
`
`A.
`
`Yes, we do.
`
`Can you describe its size and layout?
`Q.
`The Central booth is probably 100
`A.
`feet by 50 or 75 feet.
`It's a big square or
`rectangle. The different Central subsidiaries each
`have an area, and the booth is designed so the
`traffic flows so customers flow smoothly from one
`subsidiary's area to another.
`it's a busy show. We staff the show
`with salespeople to make an active effort to show
`new products and sell existing customers on
`
`programs, so it's a busy show for all three days.
`
`24
`25
`
`-I3-U370-¥$CO®\lO§CN-PCDIU-4
`
`Page 28
`
`The last day of the show, the last two days of the
`show, individual pet shop owners have a tendency to
`come, which floods the show with people walking
`around with their pets, baby carriages.
`It's a busy
`environment.
`
`Have you seen any presence by Petmate
`Q.
`at these shows?
`A.
`l’ve been to the Global show for a
`
`long time, and I think Petmate or Doskocil or Aspen
`has been a major presence there every year that i
`can remember.
`
`Do you in any way track or
`Q.
`memorialize who actually visits the Central booth?
`A.
`Typicaiiy no. We have our
`salespeople broken down into groups by channel of
`trade and the salesperson makes appointments with
`his larger customers and is available to see his
`smaller customers on an ad hoc basis, but we don't
`
`i
`
`l
`
`3
`
`i
`
`i
`
`i
`
`,
`
`l
`l
`l
`
`have a centralized record of who visited the show.
`We've tried, but other than collecting business
`cards, most of the people who come to the show you
`know, you meet on a regular basis anyway. And
`maintaining a book or chronology of who's been to
`the show is just not proving to be practical.
`Q.
`Do you have to be an APPA member to
`Pages 25 - Q28‘
`
`I
`
`i
`i
`
`Q
`
`..\A..;...\...s._\.
`
`15
`16
`l’i7
`18
`19
`20
`
`i21
`122
`
`;23
`E24
`
`
`
`

`
`Page 31
`
`(1J\lO)O‘l-l>-(.~3l\')—\
`
`And you mentioned Pet Age. Can you
`Q.
`describe what Pet Age is?
`A.
`Pet Business and Pet Age are both
`
`magazines that are distributed to owners of
`individual pet retail stores. They contain articles
`on the industry, advertising.
`Q.
`Does Pet Age conduct any kind of
`surveys or studies, to your knowledge?
`A.
`l can't remember specifically
`
`anything that they've done.
`Q.
`You mentioned that just to lay, bring
`it back to where you were, you mentioned that
`there's a cross-over between dog and cat products.
`Are there cross-overs between dog or cat products
`
`and any other pet segments?
`MR. TAMKlN: Object to form. You can
`
`answer.
`
`A.
`
`li
`
`
`
`W24
`
`
`i
`
`ii
`
`M
`
`to“‘;Z’L;“’:.C"Z;4”:"i';;Q"_\U14>-coi\>—xoc.ooo\rc*:<:i.r:»c.or\>—»ocooo-ic»o14>.o:i\>-A MR. TAMKlN: Strike on the basis of
`
`expert testimony.
`Q.
`What are the most, in your
`experience, what are the most recognized brand names ‘
`for dog products?
`A.
`Outside of the food industry where
`
`l l
`
`you have product like iams or Eukanuba, the dog toy
`and chew category has Kong, it has Nylabone, those
`are really the two prominent dog toy companies, and
`Nutrident is a popular name, Greenies is a popular
`brand.
`
`Have you seen any products in the dog
`Q.
`category with a —— strike that.
`Are you familiar with the Godzilla
`
`mark?
`
`A.
`
`Yes, I am.
`
`Have you seen the Godzilla mark on
`Q.
`any dog products?
`
`Pages 29 — 32
`
`have a booth at the show?
`
`I believe you do.
`A.
`is Doskocil or Petmate a member of
`Q.
`the APPA?
`
`Yes, they are.
`A.
`How do you know that?
`Q.
`Well, l've seen them at every show,
`A.
`and I've seen them on the list of exhibitors, and
`
`l've seen them on the membership list.
`MR. BURNSIDE: Can we have this
`marked as 38.
`
`(Opposer 38, APPA member directory,
`marked for identification, as of this date.)
`
`Can you identify Opposer 38?
`Q.
`This is the directory of members of
`A.
`the APPMA -— APPA. Looks like it comes off their
`website.
`
`Q.
`
`Could you turn to page 12 of 18.
`
`If
`
`you could look about three-quarters of the way down,
`do you see Petmate identified in here?
`MR. TAMKlN: Objection, hearsay.
`Yes, I do.
`A.
`is Central also listed in this
`Q.
`document?
`
`MR. TAMKlN: Same objection.
`
`Page 30
`
`Yes, it is.
`A.
`Do you know the relationship between
`Q.
`Doskocil and Petmate?
`A.
`I think Petmate is the master brand
`
`name and company name of a company that has grown
`through acquisition to purchase Doskocil and some
`other companies like Aspen and then maybe even some
`other companies.
`Q.
`Aside from -- strike that.
`
`Who is the manufacturer of Dogzilla,
`
`if you know?
`MR. TAMKlN: Lacks foundation, but
`
`you can answer if you know.
`A.
`l'm not sure who the Chinese
`
`manufacturer of the product is. The Dogzilla
`
`—A—-A..—§».—A<—cOl\3~—\C>LO00\lO>U‘I-I>oOl\)—-\-
`
`(O03\lO‘>U'I-§(.Ol\)-4
`
`10
`.11
`»12
`‘13
`
`M 1
`
`5
`
`product line goes to market through the Petmate
`business group.
`Q.
`Are there —— you mentioned with
`
`respect to advertising some trade publications.
`What are the major trade publications in the pet
`products industry?
`A.
`There‘s Pet Business. There's Pet
`
`L16
`§i7
`jis
`j19
`j2o
`j21
`j22
`l23
`j24
`i25
`Central Garden vs Doskocil
`
`Age. There are a few others.
`Q. What was the first one?
`A.
`Pet Business.
`
`
`
`

`
`Page 33
`
`No, l have not.
`A.
`Have you seen the Godzilla name on
`Q.
`any cat products?
`A.
`Not that l'm familiar with.
`Q.
`Have you seen the Godzilla name on
`any pet products?
`A.
`No.
`Q.
`Are you aware of customers, retail
`customers -- strike that.
`
`Page 35
`have any specific recollection of it, but i didn't
`want to hide anything from you.
`A.
`Okay.
`Q.
`There is a current lawsuit going on
`between Petmate and TFH; isn't that correct?
`A.
`Yes, there is.
`
`;
`
`And that actually has nothing to do
`Q.
`with this matter, correct?
`
`A.
`
`To the best of my knowledge, the two
`
`1
`2
`l 3
`4
`3 5
`6
`l 7
`7 8
`l 9
`
`are separate situations.
`Q.
`What product is involved in that
`case?
`
`l'm not very involved in that
`A.
`litigation, and i can't tell you too much of the
`specifics of it other than the fact that l'm aware
`that it's patent related.
`Q.
`Does it involve Petmate or Booda‘s
`Booda Bone as well?
`
`i think it relates to a patent that
`A.
`is used by the Booda Bone, but i can't tell you that i
`it relates to that bone only. That's about the
`‘
`extent of my knowledge on it.
`i
`Q.
`Does TFH have a competing product to
`whatever product is being alleged of patent
`infringement?
`
`Page 36
`
`l
`1
`
`1
`l
`|
`
`i
`i
`
`l l
`
`'
`
`l
`
`MR. BURNSIDE: Note my objection as
`to relevance.
`MR. TAMKlN: Goes to bias.
`
`A.
`TFH has products that compete with
`what Booda calls the Booda Bone or called the Booda
`Bone or Bimples, B—l-M—P—L-E—S. They have a number
`of products under those nomenclatures.
`Q.
`What is the TFH product or product
`line that competes in the space?
`A.
`Probably most closely the Healthy
`Edibles product line.
`Q.
`is that sold under the Nylabone brand
`as well?
`Yes, it is.
`A.
`So it's Nyiabone that would be the
`Q.
`main brand and Healthy Edibles would be the
`sub-brand?
`A.
`That is correct.
`
`Q.
`
`in terms of the volume of sales of
`
`the Healthy Edibles, are you familiar with the
`volume of sales of Healthy Edibles in general, big
`picture?
`A.
`
`Yes.
`
`On a yearly basis, what sort of
`Q.
`volume are we talking about?
`
`l
`3
`Pages 33 - 36?
`
`1
`2
`3
`4
`5
`6
`
`7
`8
`9
`10
`11
`12
`13
`14
`15
`16
`17
`18
`19
`120
`21
`22
`' 23
`24
`125
`
`ru-xocooo\ic5>cn.r>~coN—x
`
`(‘AV
`
`-.43-—-L—A
`
`(OG)\lO)U‘|-L‘-QJl\)—*
`
`Are you aware of consumers utilizing
`dog toys for pets other than dogs?
`A.
`
`
`
`10
`A 11
`12
`13
`14
`115
`16
`17
`I've
`l 18
`seen at the trade shows and in fact l've talked to
`my book editors, toys for dogs are frequently used 19
`in cages for other animals simply because they arei 20
`available. They are relatively inexpensive. They l21
`are easy to shop for.
`in fact, they may already be 122
`in the house, so turtles, for example, a floating
`:23
`dog toy in a turtle bowl, turtles will float up and
`push the toy around, so we think that there's a lot
`Page 34
`
`l25
`
`of cross utilization.
`l'li reserve my right
`MR. BURNSlDE:
`to conduct re-examination subject to any cross
`examination by Mr. Tamkin. And that's all i have at
`the moment.
`MR. TAMKlN: You know what? ldon't
`
`think l'm going to have very much, but let's take a
`short break and we can switch seats. We can go off
`the record.
`(A brief recess is taken.)
`CROSS EXAMlNATlON BY MR. TAMKlN:
`Q.
`We are back on the record. We
`switched seats before. My name is Greg Tamkin.
`represent Petmate in thts matter.
`l witl disclose
`to you that i think I've actually taken your
`deposition before many years ago in a dispute
`between Aspen Pet Products and TFH concerning a
`Booda Bell. Were you deposed in that case’?
`A.
`To the best of my knowledge, there
`have been multiple AspenfTFH litigations, and i
`
`l
`
`110
`M1
`;12
`113
`£14
`lts
`l16
`it?
`118
`M9
`120
`honestly don't remember you deposing me.
`121
`Q.
`i don't remember.
`122
`A.
`Could have happened, but 1 don't
`‘:23
`remember it.
`:24
`For what it's worn worth, I don't
`Q.
`l25
`Central Garden vs Doskocil
`
`
`
`

`
`,
`I
`,
`
`Page 37
`It's their reptile effort.
`In the vicinity ofE 1 subsidiary.
`A.
`1
`Does TFH have any reptile, products
`MR. BURNSIDE: Let's note my
`2
`Q.
`‘
`2
`3 continuing objection and that that answer is going
`3 designed for use by reptiles?
`‘ 4 to be marked attorneys‘ eyes only.
`, 4
`A.
`Other than books, no.
`5
`Q.
`I'm not sure Mr. Burnside went
`5