throbber
Proceeding
`Party
`
`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA701463
`ESTTA Tracking number:
`10/10/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91189001
`Defendant
`Ole Mexican Foods, Inc.
`PAUL S OWENS
`PAUL OWENS & ASSOCIATES
`PO BOX 15310
`ATLANTA, GA 30333-0310
`UNITED STATES
`psowens@bellsouth.net
`Testimony For Defendant
`Paul S. Owens
`psowens@bellsouth.net
`/paul s. owens/
`10/10/2015
`Filing of Redacted Trial Testimony of Rhonda Harper.pdf(8359 bytes )
`Rhonda Harper-Full Size_Redacted.pdf(174658 bytes )
`Harper-Exhibit 01_Redacted.pdf(1446187 bytes )
`Harper-Exhibit 02.pdf(148783 bytes )
`Harper-Exhibit 03.pdf(179433 bytes )
`Harper-Exhibit 04.pdf(24834 bytes )
`Harper-Exhibit 05.pdf(50482 bytes )
`
`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`----------------------------------------------------X
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`Orange Bang, Inc.,
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`vs.
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`Olé Mexican Foods, Inc.,
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`Applicant/Registrant.
`----------------------------------------------------X
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`Consolidated Proceedings:
`Opposition No.: 91189001
`Cancellation No.: 92048698
`Cancellation No.: 92049127
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`DEFENDANT’S FILING OF REDACTED TRIAL TESTIMONY OF
`RHONDA HARPER
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`Pursuant to the Board’s September 10, 2015 Opinion in connection with the above-
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`captioned proceedings, Defendant submits herewith a redacted copy of the trial testimony of .
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`Rhonda Harper with exhibits. The trial testimony and Exhibit 1 has been redacted to remove
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`truly confidential information.
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`Dated: October 10, 2015
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`Respectfully submitted,
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`/paul s. owens/_________________
`Paul S. Owens, Esq.
`Attorney for Defendant--Olé Mexican
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`Foods, Inc.
`Paul Owens & Associates
`P.O. Box 15310
`Atlanta, GA 30333-0310
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`Tel: (404) 370-9800
`Fax: (404) 370-9801
`E-mail: psowens@bellsouth.net
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that a copy of the foregoing Defendant’s Filing of
`Redacted Trial Testimony of Rhonda Harper with exhibits has been served upon Aaron T.
`Borrowman, Esq., attorney of record for the Plaintiff, at Kelly & Kelley LLP, by emailing a copy
`in .pdf format to Aaron@Kelly-KelleyLaw.com, the address designated for email
`communications, on Saturday, October 10, 2015.
`
`
`/paul s. owens/________________
`Paul S. Owens, Esq.
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`2
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`

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`RHONDA HARPER - July 26, 2013
`
` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Orange Bang, Inc.,
`)
`
` )
`
` Opposer/Petitioner, ) Consolidated Proceedings:
`
` ) Opposition No.: 91189001
`vs. ) Cancellation No.: 92048698
`
` ) Cancellation No.: 92049127
`Ole Mexican Foods, Inc., )
`
` )
`
` Applicant/Registrant.
`)
`
`********************************************************
`
`
`
` ORAL DEPOSITION OF
`
`
`
` RHONDA HARPER
`
`
`
` JULY 26, 2013
`
`
`
` VOLUME 1
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` ********************************************************
`
` ORAL DEPOSITION OF RHONDA HARPER, produced as
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`a witness at the instance of the Applicant/Registrant,
`and duly sworn, was taken in the above-styled and
`-numbered cause on the 26th day of July, 2013, from
`1:12 p.m. to 3:45 p.m., before Krista Wagner, CSR in and
`for the State of Texas, reported by machine shorthand,
`at the offices of CRC National, 3131 McKinney Avenue,
`Suite 300, Dallas, Texas, pursuant to Trademark
`Rule 2.123 and the provisions stated on the record or
`attached hereto.
`
`COURT REPORTERS CLEARINGHOUSE
`(214) 954-0352
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`

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`Page 2
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`RHONDA HARPER - July 26, 2013
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`
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` A P P E A R A N C E S
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`FOR THE OPPOSER/PETITIONER:
`
` Aaron T. Borrowman, Esq. (Via telephone.)
` KELLY & KELLEY, LLP
` 6320 Canoga Avenue
` Suite 1650
` Woodland Hills, California
` (818) 347-7900
` (818) 340-2859 - Fax
` aaron@kelly-kelleylaw.com
`
`91367
`
`FOR THE APPLICANT/REGISTRANT:
`
` Paul S. Owens, Esq.
` PAUL OWENS & ASSOCIATES
` 390 Chelsea Circle
` Post Office Box 15310
`30333-0310
` Atlanta, Georgia
` (404) 370-9800
` (404) 370-9801 - Fax
` psowens@bellsouth.net
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`Page 3
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`RHONDA HARPER - July 26, 2013
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`
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` I N D E X
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` PAGE
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`Appearances
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`2
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`RHONDA HARPER
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`4
` Examination by Mr. Owens
` Examination by Mr. Borrowman 39
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`Signature and Changes 80
`Reporter's Certification
`82
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` E X H I B I T S
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`
`NO. DESCRIPTION
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`MARKED
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` 1 Expert's Report of Rhonda Harper, M.B.A.
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`4
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` 2 Supplemental Declaration of 4
` Rhonda Harper, M.B.A.
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` 3 Curriculum Vitae
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` 4 Rhonda Harper, LLC, Trial/Deposition
` Experience 2009-2013
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`4
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`4
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` 5 Notice of Taking Testimony of Rhonda Harper 4
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`Page 4
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`RHONDA HARPER - July 26, 2013
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`
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` P R O C E E D I N G S
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`
`
` (Exhibits 1 through 5 marked.)
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`
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` (Witness sworn at 1:12 p.m.)
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`
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` MR. BORROWMAN:
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`Before we begin, should
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`we make appearances?
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` MR. OWENS: Yes. The reporter has my
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`appearance already.
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` MR. BORROWMAN:
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`Okay.
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`This is Aaron
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`Borrowman on behalf of Orange Bang, Inc., opposer and
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`petitioner in these proceedings.
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`
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` MR. OWENS: And I just want to make
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`sure, you have a caption of this case already?
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`
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` THE REPORTER:
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`Yes.
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`
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` RHONDA HARPER,
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`having been first duly sworn, testified as follows:
`
`
`
` EXAMINATION
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`BY MR. OWENS:
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` Q. Ms. Harper, would you please state your name
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`and address for the record?
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` A. Rhonda Harper, 6224 Penrose Avenue, Dallas,
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`Texas.
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` Q. And, Ms. Harper, you're being called today as
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`an expert witness in the -- the opposition and
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`cancellation proceedings that are shown in the caption
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`of this case; is that correct?
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`Page 5
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`RHONDA HARPER - July 26, 2013
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` A. Yes.
`
` Q. Ms. Harper, I show you what has been marked
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`as applicant's Exhibit Number 1.
`
`Would you please
`
`review that and let me know when you've had a chance to
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`review it?
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`
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` (Witness reviewing document.)
`
` A. Okay.
`
` Q. (BY MR. OWENS) Can you please tell me what
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`it is?
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` A. It is my expert's report.
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` Q. In the -- in these matters, in this
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`above-captioned matter?
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` A. Yes, it is, I'm sorry.
`
` Q. Okay.
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`And what was the -- the date of this
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`report?
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` A. I believe it was April of 2010.
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` Q. Okay.
`
`I direct your attention to Paragraphs
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`3 through 7.
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`Was all of the information given at those
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`paragraphs correct at the time that this report was
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`prepared?
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` A. Yes.
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` Q. I understand, however, that we need to update
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`some of the information at those paragraphs as those
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`things have updated over the past somewhat more than
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`three years.
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`Attached also as your -- as an exhibit to
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`COURT REPORTERS CLEARINGHOUSE
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`Page 6
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`RHONDA HARPER - July 26, 2013
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`your expert's report was a copy of your resume or CV,
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`which is part of Exhibit 1.
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`I ask you to review
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`Exhibit 3, what has been marked as Exhibit 3.
`
`Do you
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`recognize that exhibit?
`
` A. Yes, I do.
`
`It's my CV.
`
` Q. And what is the effective date of that CV?
`
`What is it current to?
`
` A. It's current to 2013 July.
`
` Q. Is that an update of the CV that was attached
`
`to Exhibit 1?
`
` A. Yes.
`
`
`
` MR. BORROWMAN:
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`I'm going to object to
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`Exhibit 3 as not being provided previous to today.
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` Q. (BY MR. OWENS) Now, should I call you
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`Miss Harper or Ms. Harper or Mrs. Harper?
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` A. Whatever you're most comfortable with.
`
` Q. Okay.
`
` A. Ms. or Mrs. is fine.
`
` Q. Okay.
`
`Mrs. Harper, please give me a brief
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`outline of your educational background.
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` A. I have a B.S. in education and math resource
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`from Illinois State University. I also have an M.B.A.
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`from Emory University.
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` Q. Okay.
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`And give me a brief outline of your
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`work experience since you graduated from Emory Business
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`RHONDA HARPER - July 26, 2013
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`School.
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` A. I have approximately 25 years of business
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`experience in the field of marketing and strategy across
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`many categories, including beverage, food, consumer
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`packaged foods, food service and Hispanic marketing.
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` Q. Okay.
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`From your expert's report and your --
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`your CV, tell me what -- what work experience have you
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`had that is most relevant to the issues in this case?
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` A. Well, in the beverage industry, I was -- I
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`worked for Sunkist Soda as an intern and then as an
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`ongoing employee.
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`From that experience, I learned about
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`food service and beverage manufacturing and marketing.
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`I also learned about consumer and retail awareness
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`recognition, those kind of things.
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` Years later, I became a consultant to
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`The Coca-Cola Company working directly with the head of
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`worldwide retail in helping him to improve retail
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`operations with Coca-Cola. I was also a consultant to
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`the beverage aisle vice president at Target stores in
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`helping them improve their sell-through of beverage
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`products.
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`
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` Within the food -- the broader food
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`arena, I was the promotional marketing director for the
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`biscuit division of Nabisco, which was a $4 billion
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`division. I ran all the promotional marketing across
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`Page 8
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`RHONDA HARPER - July 26, 2013
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`all their cookies, crackers and Snackwell's.
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`I also
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`served as a consultant to the chief marketing officer of
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`Arby's as well as the chief marketing officer of
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`Kellogg's, and in those roles helped them draw a
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`business strategy and marketing strategy to gain
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`consumer awareness and recognition in further purchase
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`of their products.
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` In the area of consumer packaged goods,
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`I was the divisional manager for Warner Lambert, a
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`$1.2 billion firm with brands like Lubriderm, Listerine,
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`Benadryl, Actifed, Sudafed, et cetera, and had to be
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`very cognizant of consumer behavior and retail
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`operations.
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`
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` I was the chief marketing officer, VP of
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`marketing reporting right to the CEO of Wal-Mart
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`Sam's Club. Sam's Club was a $40 billion company in
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`which I was responsible for a billion dollar profit on
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`membership, and then also all of their marketing
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`efforts.
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`So I understand retail very well from a
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`consumer packaged goods and -- and other experiences.
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`
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` Let's see. I was also a consultant for
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`SC Johnson, their new products division, and crafted
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`their go-to-market channel strategies as they launched
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`new products over a period of time.
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`
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` Within the food service area, I worked
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`RHONDA HARPER - July 26, 2013
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`directly with the vice president of business development
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`for Tyson Foods and developed their pipeline process for
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`taking new products to market and integrated their three
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`divisions totaling $22 billion in their new product
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`ventures. I worked with the chief marketing officer of
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`CSM North America.
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`CSM is the world's largest bakery
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`food service supply company, and helped them develop
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`their new market portfolio and go-to-market strategies.
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`
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` I also served as the working consultant
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`CMO for Hispanic for Papa John's. Within the area of
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`Hispanic, I also served as the keynote speaker for
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`Hispanic 360, which is a progressive grocers retail
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`annual convention that hosts more than a thousand retail
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`marketers in Hispanic area.
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`I ran Ketchum public
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`relations, second largest global P&L.
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`They are the
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`third largest PR firm globally. And within that, I
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`launched and ran, in addition to everything else, their
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`Hispanic practice.
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`I developed a five-year strategic
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`roadmap for Target stores in multiculturalism and
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`basically that was how to integrate Hispanic marketing
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`and merchandising across their organization in all
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`their -- all their departments from human resources all
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`the way through to merchandising and so forth.
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`
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` I also conducted research for insights
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`to help Target develop its Hispanic advertising programs
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`RHONDA HARPER - July 26, 2013
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`and worked with The Coca-Cola Company, their small
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`business units of Hispanic goods that they were bringing
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`from Mexico in hopes to launch them nationally into the
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`United States.
`
` Q. Okay.
`
`Now, I understand that you've had a
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`number of speaking engagements. Could you tell us
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`just -- I think you've already alluded to one of them,
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`just those speaking engagements or professional
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`associations that are most relevant to your testimony in
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`connection with this case?
`
` A. Sure.
`
`I'm affiliated with many trade
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`associations, the American Marketing Association, the
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`Promotional Marketing Association and so on.
`
`I sat on
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`the board of some of these associations for many years,
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`the national board or international boards. I've had
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`many, many speaking engagements, too -- too numerous to
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`mention here but they were all professionally paid
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`speaking engagements. I've been asked to speak on
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`marketing and media at Harvard Business School, on sales
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`operations and strategy for Eli Lilly. Consumer
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`research and insights at an international -- the largest
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`market research, IIR conference.
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`So, again, many, many
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`corporations, industry trade shows, colleges and
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`universities and so on.
`
` Q. Okay.
`
`Now, I asked you to look at the top of
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`RHONDA HARPER - July 26, 2013
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`Page 11
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`Page 3 of Exhibit 1.
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` A. Uh-huh.
`
` Q. And it states there that you have testified
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`as a marketing expert witness in a case in the past five
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`years.
`
` A. Uh-huh.
`
` Q. Would you please review what has been marked
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`as Exhibit 4, and would you tell us -- there's four
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`cases listed on there, would you please tell us what
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`those are?
`
` A. Sure.
`
`All four of these were deposition.
`
`The one that's noted in -- on Page 3 was actually court
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`trial experience.
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`
`
` So in these depositions, Bradley v.
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`Dollar General was a personal injury case on product
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`liability.
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`Rein v. Ross is a personal injury case based
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`upon in-store merchandising and display and -- and
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`retailer negligence.
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`Rearden LLC v. Rearden Commerce is
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`an intellectual trademark case based upon the name
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`Rearden in which Rearden LLC is a Hollywood movie
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`production studio and Rearden Commerce is a technology
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`platform that rests behind online purchase transactions.
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`
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` Stonefire Grill v. FGF Brands is an IP
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`case, trademark infringement case, based upon the name
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`Stonefire.
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`Stonefire Grill is a small restaurant chain.
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`RHONDA HARPER - July 26, 2013
`
`FGF Brands has a product with the Stonefire name on it.
`
` Q. Okay.
`
`Let me just clarify.
`
`The Rearden LLC
`
`versus Rearden Commerce case was a trademark
`
`infringement case; is that correct?
`
` A. Correct.
`
` Q. And you gave an expert's report and you were
`
`deposed in that case; is that correct?
`
` A. Yes.
`
` Q. And you addressed issues in the case relating
`
`to consumer confusion; is that correct?
`
` A. Yes.
`
` Q. And the Stonefire Grill case is also a
`
`trademark infringement case?
`
` A. Yes.
`
` Q. And you also gave an expert's report and you
`
`were deposed in connection with that case?
`
` A. Yes.
`
` Q. And your report and deposition also addressed
`
`issues of likelihood of confusion in that case; is that
`
`correct?
`
` A. Correct.
`
` Q. Have there been other trademark cases that
`
`you've been involved in over the past five years?
`
` A. Yes.
`
` Q. Are these --
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`RHONDA HARPER - July 26, 2013
`
`
`
` MR. BORROWMAN:
`
`I'm going to object to
`
`form.
`
`I'm going to object to this testimony as not
`
`being provided in a timely manner and not until today.
`
` Q. (BY MR. OWENS) How many of the cases in
`
`the -- shown on Exhibit 4 arose after April 2010?
`
` A. All of them.
`
` Q. Okay.
`
`Have there been in addition other
`
`cases where you've given expert reports although not
`
`necessarily have been deposed or testified?
`
` A. Yes.
`
` Q. Could you please tell me those cases?
`
` A. Yes. I'm not going to have all the
`
`information, the case numbers and so forth, for them,
`
`but I can recall the case -- the cases.
`
`Allconnect v.
`
`Connect was an IP case, a trademark infringement case.
`
`Amazon v. Amazontickets.com is another one. Sherwin
`
`Williams v. RGS. New Look v. Sears. Mobile Media v.
`
`RIM, that was trademark and patent infringement. Love
`
`Candy v. Love Candy, another trademark infringement.
`
`Amazon Green v. Ruggles Green, two restaurant chains,
`
`trademark infringement. And then finally, The Coca-Cola
`
`Company v. PepsiCo --
`
` Q. Okay.
`
` A. -- was a trade dress and infringement.
`
` Q. And in each of those cases, you've given
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`RHONDA HARPER - July 26, 2013
`
`written expert reports?
`
` A. Yes.
`
` Q. And in each of those cases, did your reports
`
`address questions of trademark infringement or consumer
`
`confusion?
`
` A. Yes. And secondary meaning.
`
` Q. Okay.
`
`In any of those cases, did you
`
`conduct -- did you conduct surveys in support of your
`
`expert reports?
`
` A. Yes, in several of them.
`
` Q. Tell me a little bit about the kind of
`
`surveys you conducted in those cases.
`
` A. All of them were quantitative surveys. Some
`
`were done online, some were done at trade show
`
`conventions.
`
`They were all done with a confidence level
`
`of 90 percent or better and a margin of error of five
`
`percent, plus or minus or better, all relevant to their
`
`populations, all relevant to the issues at hand.
`
`Generally, they are short surveys and designed to
`
`determine whether or not the products came from the same
`
`manufacturer and whether or not there was confusion or
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`secondary meaning attached.
`
` Q. Okay.
`
`Now, I ask you to look at Paragraph 8
`
`of Exhibit 1, which I believe is on Page 3.
`
` A. Uh-huh.
`
`Yes.
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`RHONDA HARPER - July 26, 2013
`
`
`
` MR. BORROWMAN:
`
`Before we move on to
`
`that, I'm going to move to strike all testimony relating
`
`to Exhibit 4 as being untimely.
`
` Q. (BY MR. OWENS) Okay.
`
`Paragraph 8 of
`
`Exhibit 1 are the matters reviewed in connection with
`
`rendering that expert's report in April 2010.
`
`Since the
`
`date of that expert's report, have you reviewed other --
`
`other materials or -- let me -- let me strike that.
`
`
`
` Did you review any additional materials
`
`in preparation for giving your testimony today?
`
` A. Yes.
`
` Q. And what were they?
`
` A. The Greenway deposition, the Fox declaration
`
`and supplemental declaration, the Moreno deposition and
`
`declaration again.
`
`And I have -- of course, I reviewed
`
`my own -- my own expert report as it was given nearly
`
`three years ago.
`
` Q. And when you say a Greenway deposition,
`
`you're referring to her testimony deposition from
`
`earlier this week?
`
` A. Yes.
`
` Q. And when you say the Moreno deposition,
`
`you're referring to her deposition -- testimony
`
`deposition given last Friday?
`
` A. Yes.
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`RHONDA HARPER - July 26, 2013
`
`
`
` MR. BORROWMAN:
`
`I am going to object to
`
`any and all testimony that goes above and beyond the
`
`exhibits which are marked Exhibit 1 and 2 and the
`
`expert's report and the supplemental declaration of
`
`Rhonda Harper as not being provided to Orange Bang in a
`
`timely manner.
`
` Q. (BY MR. OWENS) Mrs. Harper, I also request
`
`you refer to what has been marked as Exhibit 3 in this
`
`case -- I'm sorry, as Exhibit 2 in this case.
`
`Please
`
`let me know when you're finished reviewing it.
`
`
`
` (Witness reviewing document.)
`
` A. Okay.
`
` Q. (BY MR. OWENS) Can you tell me what that is?
`
` A. It's a supplemental declaration outlining my
`
`expertise and experience.
`
` Q. And when did you prepare that?
`
` A. In May of 2010.
`
` Q. And is any of the information given in
`
`Exhibit 2 incorrect or does it need to be supplemented
`
`beyond what we've already supplemented, you know, your
`
`work experience and so forth?
`
` A. No.
`
` Q. And just -- just to reiterate, Exhibit 1
`
`is -- the statements in that report are all correct as
`
`supplemented today during your testimony; is that
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`RHONDA HARPER - July 26, 2013
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`correct?
`
` A. Yes.
`
` Q. All right.
`
`I'd now like to turn to Olé
`
`Mexican Foods' use of its Olé mark.
`
`Can you please
`
`describe to me the nature of Olé's foods or the products
`
`that Olé sells under its Olé trademark?
`
`
`
` MR. BORROWMAN:
`
`Paul, are you referring
`
`to anything in particular in Exhibits 1 or 2?
`
`
`
` MR. OWENS: No, I'm asking the witness
`
`to -- to testify -- no.
`
`
`
` MR. BORROWMAN:
`
`Well, I object to it as
`
`not being provided in a timely manner.
`
`
`
` MR. OWENS: What -- what not being
`
`provided?
`
`
`
` MR. BORROWMAN:
`
`Well, we've been
`
`provided in a timely manner the expert's report of
`
`Rhonda Harper, Exhibit 1, and supplemental declaration
`
`of Rhonda Harper, Exhibit 2. There is a lot of
`
`additional information which is being provided today
`
`that it apparently is not contained in these reports and
`
`I believe it's outside the scope of her ability to
`
`testify.
`
`
`
` MR. OWENS: I'm -- I'm asking her to
`
`describe the nature of Olé's Olé-branded products.
`
`That's clearly within the scope of her expert reports.
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`Page 18
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`RHONDA HARPER - July 26, 2013
`
`
`
` MR. BORROWMAN:
`
`But you're not referring
`
`to anything particular in the expert report.
`
`
`
` MR. OWENS: Well, it is -- it is
`
`referred to in the expert report, yes.
`
`
`
` MR. BORROWMAN:
`
`Where are we looking?
`
`
`
` MR. OWENS: Well, I believe it's -- it's
`
`given at Paragraph 14 of Exhibit 1, is -- refers to
`
`Olé's products, but I don't believe that we are limited
`
`today to testimony that is solely found within the
`
`expert report.
`
`
`
` MR. BORROWMAN:
`
`I believe that you are
`
`limited beyond the extent it goes beyond documents if
`
`that's all that's been provided to us in the past.
`
`Anyway, that's my objection.
`
`
`
` MR. OWENS: All right.
`
`Noted.
`
` Q. (BY MR. OWENS) And, Mrs. Harper, could you
`
`please describe for me the nature of the products that
`
`Olé sells under its Olé trademarks?
`
` A. Sure.
`
`Generally, they fall into what we
`
`would consider consumer packaged goods, food products,
`
`or CPG food would be the shortcut answer to that.
`
`They're sold primarily through retail class of trade to
`
`consumers for later preparation and consumption in the
`
`home.
`
` Q. And what are the channels of trade or the
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`RHONDA HARPER - July 26, 2013
`
`channels of distribution for Olé's Olé-branded products?
`
` A. Olé sells through food mass merchandisers and
`
`club wholesalers, but predominantly through the -- what
`
`we would consider the food class of trade which would
`
`include supermarkets, grocery stores, independent
`
`grocery stores to include carnicerias and tiendas and so
`
`forth within that Hispanic market.
`
` Q. And what sort of retailers would be included
`
`in mass merchandisers?
`
` A. Mass merchandisers are generally Wal-Mart,
`
`KMart, Target, those chains that have general
`
`merchandise as well as food products.
`
`Food grocery
`
`stores obviously would be something along the lines of
`
`Kroger, Publix, SafeWay, A&P on the national level.
`
`Club stores, Sam's Club.
`
` Q. Is it correct to say that the -- the typical
`
`channel of trade for consumer packaged foods are retail
`
`food stores?
`
`
`
` MR. BORROWMAN:
`
`Objection, leading.
`
` Q. (BY MR. OWENS) What are the typical channels
`
`of trade for the sale of consumer packaged foods or what
`
`we called CPGs?
`
` A. Consumer packaged goods goes beyond food, but
`
`within the food category, the way in which the market is
`
`carved out is food, drug, mass merch, and club would be
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`Page 20
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`RHONDA HARPER - July 26, 2013
`
`the four general segments of which Olé serves or -- or
`
`distributes through three of those.
`
` Q. Okay.
`
`Now, in the course of this deposition,
`
`we're going to be referring at certain points to two
`
`different design logos for the Olé mark.
`
`Looking at
`
`Paragraph 15 of Exhibit 1, if I refer to the logo on
`
`that page shown as -- on the left-hand side as the Olé
`
`logo, will you understand that?
`
` A. Yes.
`
` Q. And if I refer to the Olé Mexican Foods logo,
`
`will you understand that to refer to the logo shown on
`
`the right on that page?
`
` A. Yes.
`
` Q. Now, I'd like to -- I'd like to discuss the
`
`brand awareness among retail consumers for the
`
`Olé-branded products. Would you say that Olé has
`
`established a Olé mega brand?
`
`
`
` MR. BORROWMAN:
`
`Objection, leading.
`
` Q. (BY MR. OWENS) You may answer.
`
` A. It's not a matter of opinion.
`
`It is a mega
`
`brand. Mega brand within the field of marketing simply
`
`means that you've taken a name of and broadened it
`
`across a number of different categories, so they are a
`
`mega brand. With regard to consumer awareness of the
`
`mega brand, I would say yes. If you just look at the
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`Page 21
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`RHONDA HARPER - July 26, 2013
`
`two marks, the Olé and the Olé Mexican Foods mark,
`
`certainly they have been designed to -- to feature the
`
`Olé name. And, in fact, according to Moreno, consumers
`
`and retailers call them simply Olé, they don't
`
`necessarily say Olé Mexican Foods.
`
`You know, when we
`
`look at the mark --
`
` Q. Let me -- let me back up a little bit. Olé
`
`has used its Olé marks across several categories of food
`
`products. What are the -- what are the various food
`
`products that Olé is selling under its Olé marks?
`
` A. It sells tortillas, candy, snack foods,
`
`cheese, cheese dip, chorizo, salsas, herbal teas, snack
`
`foods, beverage. They have a -- they have a broad
`
`spectrum of products and categories.
`
` Q. How would you characterize the level of
`
`awareness and recognition among retail consumers of
`
`Olé's Olé-branded products?
`
` A. Well, I would see it as strong. They've been
`
`in the market for 20, 25 years. They have national
`
`distribution in virtually all grocery outlets, national
`
`chains.
`
`Within these grocery stores, they are seen by
`
`shoppers and consumers on multiple aisles.
`
`The Olé name
`
`is featured on the products in each of these aisles.
`
`Over the years, there has been limited distribution of
`
`Mexican foods within these grocery stores which even
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`RHONDA HARPER - July 26, 2013
`
`makes them more noticeable to consumers.
`
`
`
` This portfolio mega brand strategy helps
`
`a company to establish a broad base of awareness, and
`
`leverages or amps up their advertising allocations to
`
`make them even more powerful.
`
`
`
` And Olé has done quite a bit of
`
`advertising over the years.
`
`They have had television
`
`ads placed in very prominent time slots.
`
`For instance,
`
`the World Cup, the Olympics, they do radio. They are
`
`very adept at promotional premiums and product giveaways
`
`and so forth.
`
`
`
` They -- one of the most important
`
`strategies is in-store merchandising.
`
`Their products
`
`are often put on displays according to -- I've forgotten
`
`who it was. It was either Greenway or Moreno who said
`
`they have thousands of displays and are oftentimes in
`
`three, four or five different off-shelf locations within
`
`a store.
`
`In --
`
`
`
` MR. BORROWMAN:
`
`Objection, hearsay.
`
` A. Are oftentimes in multiple locations
`
`off-shelf within the store environment.
`
`They have
`
`signs, banners, those kinds of things.
`
`
`
` So when all of this is taken together,
`
`along with their revenue today pushing somewhere in the
`
`250 million, $260 million range, all these factors
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`RHONDA HARPER - July 26, 2013
`
`together would suggest a very strong brand awareness
`
`among consumers and shoppers.
`
` Q. (BY MR. OWENS) So gross sales and -- has an
`
`effect on the awareness of the Olé brand in retail food
`
`stores?
`
` A. Well, in this case, yes, because it is spread
`
`among many products on many different aisles and would
`
`have reached many different kinds of consumers.
`
` Q. And do line extensions or line expansions
`
`under the Olé brand, does that have an effect on the
`
`consumer awareness?
`
` A. Absolutely. It's a very smart business
`
`decision that they made early on in w

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