BULKY DOCUMENTS
`
`(Exceeds 100 pages)
`
`Proceeding/Serial No: 91 I 89474
`
`Filed: 5[16[201l
`
`Title: DULYEXECUTED TRANSCRIPTS ( EOLS. I
`AND II2 AND EXHIBITS OF OPPOSER’S
`TESTIMONY
`
`Part
`
`1
`
`of
`
`1
`
`91189474
`
`

`
`BULKY EXHIBITS
`
`Proceeding/Serial No: 9 1 1 8 94 7 4
`
`
`
` Filed: 5/16/2011
`
`Ti tle: DULYEXECUTED TRANSCRIPTS
`
`( I_/OLS. IAND II] AND EXHIBITS OF
`OPPOSER ’S TESTIMONY
`
`EXHIBIT 3: 1 CD
`
`
`
`118947
`
`

`
`IACK F. SCHERER, P.C.
`ATTORNEY AT LAW
`
`May 13, 2011
`
`Trademark Trial and Appeal Board
`Madison East
`
`Concourse Level Room C 55
`
`600 Dulaney Street
`Alexandria, VA 22314
`
`99 PARK AVENUE
`
`3RD FLOOR
`
`NEW YORK, N.Y. 10016
`
`TEL (212) 421-7140
`
`FAX (917) 591-4763
`
`EMAIL: jscherer@jfsny.com
`
`OF COUNSEL
`
`AHMED MASSOUD
`
`LISA PASHKOFF
`
`Re: Opposition No. 91189474
`
`'33
`
`S‘
`
`Gentlemen:
`
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`
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`323
`Enclosed herewlth, please find the duly executed transcripts (Vdvlsgl and II)
`and exhibits of Opposer’s testimony. Attached thereto are the respective::C§rtificates
`of 8
`Service. Also, please find duly executed Stipulation for the filing of Volume I, mzncpr(1i-nc:
`CD
`tunc.
`
`35::
`_:
`0-
`
`
`
`J ck F. Scherer
`
`
`
`

`
`85/12/2811
`
`22:89
`
`9125379888
`
`HUGJ
`
`PAGE 8lf8l
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No.: 91 189474
`
`Mark: KLYMAXX
`
`Serial No: 77/571,759
`
`) )
`
`))
`
`) )
`
`)
`
`) )
`
`Cheryl Cooley,
`
`Opposer,
`
`v.
`
`Bernadette Cooper and
`Joyce Irby
`
`Applicants.
`)
`
`
`mmem
`
`-It is hereby stipulated and agreed by and between the attorneys £95 resffictive
`parties that the transcript and exhibits ofthe trial testimony ofOpposerfgiliferyl é5oley,~‘;‘3:’)
`O:
`U)
`taken onNovembr 1,2010, be filedmmcpro nmc.
`‘
`A
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`
`88
`
`?U)
`
`
`
`A’
`
`/.
`
`Dated: April 25, 2011
`
`
`
`J ck F. Scherer, Esq.
`Attorney for Opposer
`
`i
`
`Jamie Shelden, Esq.
`Attorney for Applicants
`
`

`
`In The Matter
`
`CHERYL COOLEY v.
`
`BERNARDETTE COOPER and IOYCE IRBY
`
`CHERYL COOLEY
`
`November 1, 2010
`
`RAYVID REPORTING SERVICE, INC.
`
`225 Varick Street - 10th Floor
`
`New York, NY 10014
`
`PH: 212-267-3877 / FAX: 212-692-9171
`
`COOLEY, CHERYL - Vol. 1
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 1
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`CHERYL COOLEY,
`
`Opposer,
`
`{:)E:§l(EEflf\jiE\Em
`
`VS.
`
`Case No. 91189474
`
`BERNARDETTE COOPER and JOYCE
`
`IRBY,
`
`Applicants.
`
`DEPOSITION OF CHERYL COOLEY
`
`MONDAY, NOVEMBER 1, 2010
`
`10:16 a.m.
`
`REPORTED BY:
`
`GRACE CHUNG, CSR No. 6246
`
`Registered Merit Reporter
`Certified Realtime Reporter
`
`Rayvid Reporting Service
`(212) 267-3877
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 2
`
`Deposition of CHERYL COOLEY,
`
`taken on
`
`behalf of Opposer, at 180 North Fair Oaks Avenue,
`
`Pasadena, California, commencing at 10:16 a m.,
`
`Monday, November 1, 2010, before GRACE CHUNG, CSR No.
`
`6246, RMR, CRR, CLR.
`
`A P P E A R A N C E S
`
`FOR OPPOSER:
`
`LAW OFFICES OF JACK F. SCHERER
`
`JACK F. SCHERER, ESQ.
`BY:
`99 Park Avenue
`Third Floor
`
`New York, New York 10016
`(212) 421-7140
`
`jscherer@jfsny.com
`
`FOR APPLICANTS:
`
`LAW OFFICES OF JAMIE SHELDEN
`
`JAMIE SHELDEN, ESQ.
`BY:
`1760 Suite F
`PMB No. 220
`
`Airline Highway
`Hollister, California 95023
`(Not Present)
`
`Rayvid Reporting Service
`(212) 267-3877
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 3
`
`I N D E X
`
`WITNESS
`
`EXAMINATION
`
`CHERYL COOLEY
`
`BY MR. SCHERER
`
`NO.
`
`DESCRIPTION
`
`E X H I B I T S
`
`Exhibit
`
`Taking trial testimony pursuant
`to notice
`
`Exhibit
`
`E~mail dated October 20, 2010
`
`Exhibit
`
`E—mail dated October 29, 2010
`
`Exhibit
`
`Notice of Opposition
`
`Exhibit
`
`Letter dated February 26, 2009,
`from Lynn Malsby, with
`attachment, and CD
`
`Exhibit
`
`Answer to Notice of Opposition
`
`Exhibit
`
`Exhibit
`
`Answers to Applicants’ Request
`for Admissions
`
`Answers to Applicants’ First Set
`of Interrogatories
`
`Exhibit
`
`Answer to First Interrogatories
`
`Exhibit
`
`Exhibit
`
`Letter from Higgins & Dubner
`dated May 14th, 2003
`
`Letter from Lynn, Lorena,
`Bernadette
`
`Exhibit
`
`Letter dated August 10, 2007
`
`Exhibit
`
`Letter from Just Trademarks dated
`
`September 23, 2008
`
`Rayvid Reporting Service
`(212) 267-3877
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 4
`
`PASADENA, CALIFORNIA
`
`MONDAY, NOVEMBER 1, 2010
`
`10:16 a.m.
`
`CHERYL COOLEY,
`
`having been first duly sworn or affirmed,
`
`was examined and testified as follows:
`
`MR. SCHERER: This is taking trial
`
`testimony pursuant to notice, and I would like to have
`
`the notice of taking trial testimony marked as
`
`Exhibit —— as Opposer's 1.
`
`(Opposer's Exhibit
`
`1 was marked for
`
`identification by the reporter and is
`
`attached hereto.)
`
`MR. SCHERER: And subsequent to the serving
`
`of the notice upon applicants‘ attorney,
`
`there was a
`
`series of e—mails —— one dated October 20th, 2010,
`
`the
`
`other dated October 29th, 2010 —— notifying the
`
`applicants‘ attorney of the date,
`
`time, and place of
`
`the deposition. And I would like to have those marked
`
`as Exhibits 1 —— as Opposer's 1—A and 1—B.
`
`(Opposer's Exhibit
`
`1—A and 1—B were marked
`
`for identification by the reporter and are
`
`attached hereto.)
`
`Rayvid Reporting Service
`(212) 267-3877
`
`
`
`

`
`CHERYL
`
`COOLEY - 11/1/2010
`
`Page 5
`
`EXAMINATION
`
`BY MR. SCHERER:
`
`Q.
`
`And, Ms. Cooley, have we filed —— have you
`
`filed a notice of opposition to the applicants‘
`
`application for trademark for the name "Klymaxx"?
`
`A.
`
`Yes.
`
`Q.
`
`I will show you the Notice of Opposition
`
`and ask you,
`
`is that the document reflecting your
`
`opposition to applicants’ trademark application?
`
`A.
`
`Yes, yes.
`
`MR. SCHERER: And can we have this marked
`
`as Opposer's 2.
`
`(Opposer's Exhibit 2 was marked for
`
`identification by the reporter and is
`
`attached hereto.)
`
`BY MR. SCHERER:
`
`Q.
`
`Looking at Opposer's 2, which has already
`
`been marked in evidence, are all the statements
`
`contained in that document true?
`
`A.
`
`Q.
`
`Yes,
`
`they yes.
`
`They are.
`
`I direct your attention to paragraph 11 --
`
`I'm sorry. Withdrawn.
`
`I direct your attention to paragraph 13 in
`
`Opposer's 2, wherein it states that "Stewart, Grider,
`
`and Malsby join with Opposer in the within
`
`Rayvid Reporting Service
`(212) 267-3877
`
`
`
`

`
`CHERYL
`
`COOLEY ~ 11/1/2010
`
`Page 6
`
`opposition."
`
`I am asking you specifically,
`
`is that
`
`statement true?
`
`A.
`
`Q.
`
`Yes, it is.
`
`Okay. And pursuant to that, did you
`
`receive a letter from Malsby in which she expresses
`
`her desire to join in the application,
`
`in your
`
`opposition?
`
`A.
`
`Yes.
`
`Q.
`
`Now,
`
`I show you a document and ask you
`
`whether or not this is the letter that you received
`
`from Malsby which joins in your opposition to the
`
`application.
`
`A.
`
`Yes, it is.
`
`MR. SCHERER: Okay.
`
`Can we have this
`
`marked as Opposer's 3.
`
`(Opposer's Exhibit 3 was marked for
`
`identification by the reporter and is
`
`attached hereto.)
`
`MR. SCHERER:
`
`For the record, Opposer's 3
`
`consists of a letter,
`
`a two—page letter with
`
`attachments,
`
`l5 attachments, and a CD. That will be
`
`part of 3.
`
`Q.
`
`And,
`
`to your knowledge, did the applicants
`
`file an answer to the Notice of Opposition?
`
`Rayvid Reporting Service
`(212) 267-3877
`
`
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 7
`
`A.
`
`Yes.
`
`Q.
`
`Okay.
`
`I will show you a document which
`
`is the —— is this the answer to the Notice of
`
`Opposition?
`
`A.
`
`Yes, it is.
`
`MR. SCHERER: And I would like to have this
`
`marked as 4, please.
`
`(Opposer's Exhibit
`
`4 was marked for
`
`identification by the reporter and is
`
`attached hereto.)
`
`BY MR. SCHERER:
`
`Q.
`
`Did you receive a request for admissions
`
`from the applicants with reference to this —~
`
`to their
`
`trademark application?
`
`A.
`
`Yes.
`
`Q.
`
`I will show you the Answers to Applicants’
`
`Request for Admissions and ask you whether or not
`
`the
`
`statements contained in there are true.
`
`A.
`
`Q.
`
`Yes,
`
`they are.
`
`Okay.
`
`Just look through it again,
`
`just to
`
`refresh your recollection, please, and make sure that
`
`they are true.
`
`Just make sure that you remember what
`
`you said and that all the statements contained therein
`
`are true.
`
`Could I have the Answers to Applicants’
`
`Rayvid Reporting Service
`(212) 267~3877
`
`
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page
`
`Request for Admissions marked as Opposer's 5.
`
`(Opposer's Exhibit
`
`5 was marked for
`
`identification by the reporter and is
`
`attached hereto.)
`
`BY MR. SCHERER:
`
`Q.
`
`Did there come a point
`
`in time where we
`
`received a request for interrogatories from the
`
`applicants?
`
`A.
`
`Yes.
`
`Q.
`
`And I show you a document which is
`
`captioned "Answers to Applicants’ First Set of
`
`Interrogatories.'
`
`And are the Answers to Applicants‘
`
`First Set of Interrogatories true?
`
`A.
`
`Yes.
`
`MR. SCHERER:
`
`Can we have that marked as
`
`Opposer's 6, please.
`
`(Opposer's Exhibit
`
`6 was marked for
`
`identification by the reporter and is
`
`attached hereto.)
`
`BY MR. SCHERER:
`
`Q.
`
`And did there come a time when we served
`
`upon the applicants a request for opposer's first set
`
`of interrogatories?
`
`A.
`
`Yes.
`
`And I will show you a document which is
`
`Rayvid Reporting Service
`(212) 267—3877
`
`
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 9
`
`captioned "Answer to First Interrogatories."
`
`And is this their response, "their" being
`
`applicants’ response?
`
`A.
`
`Yes.
`
`MR. SCHERER: Okay. May we have that
`
`marked as Exhibit 7, please, Opposer's 7.
`
`(Opposer's Exhibit
`
`7 was marked for
`
`identification by the reporter and is
`
`attached hereto.)
`
`BY MR. SCHERER:
`
`Q.
`
`Can you please look at Opposer's 2, which
`
`has been designated as Opposer's 2.
`
`With reference to Opposer's 2, we have
`
`stated that the applicants abandoned Klymaxx.
`
`A.
`
`True.
`
`Q.
`
`Okay.
`
`Can you tell us the circumstances of
`
`their abandonment of Klymaxx?
`
`A.
`
`In approximately 1987, Bernadette Cooper no
`
`longer performed with the band, went on to do a solo
`
`career. And in approximately 1988, Joyce Irby was no
`
`longer performing with the band, had stopped
`
`performing with the band, going on —— traveling with
`
`the band, and had pursued her own solo career.
`
`Q.
`
`Okay.
`
`So both of the applicants abandoned
`
`Klymaxx,
`
`the performing group,
`
`to form a solo career;
`
`Rayvid Reporting Service
`(212) 267-3877
`
`
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 10
`
`is that correct?
`
`A.
`
`Q.
`
`That's correct. That's true.
`
`When they abandoned the —— when they
`
`abandoned Klymaxx, did they give any indication that
`
`they wanted to return to Klymaxx?
`
`A.
`
`No.
`
`Q.
`
`Okay. When did you —— did there come a
`
`time when you started performing as Klymaxx featuring
`
`Cheryl Cooley in 2003?
`
`A.
`
`Q.
`
`Yes.
`
`And when was that,
`
`to the best of your
`
`recollection?
`
`A.
`
`Q.
`
`The first performance was May 17th, 2003.
`
`Okay. And have you continued to perform as
`
`Klymaxx featuring Cheryl Cooley since that date?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes.
`
`To the date hereof?
`
`Yes, that's correct.
`
`Okay.
`
`Now,
`
`in May of 2003, did you receive
`
`a cease and desist letter from a set of attorneys
`
`called Higgins, H—I—G—G—I~N—S, and Dubner,
`
`D—U—B—N—E—R?
`
`A.
`
`Yes.
`
`Q.
`
`Okay.
`
`I show you a letter on the
`
`letterhead of Higgins & Dubner dated May 14th, 2003,
`
`Rayvid Reporting Service
`(212) 267-3877
`
`
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 11
`
`and ask you whether or not this is the cease and
`
`desist letter you received from them.
`
`A.
`
`Yes.
`
`MR. SCHERER:
`
`I would like to have this
`
`marked as Opposer‘s 8.
`
`(Opposer‘s Exhibit
`
`8 was marked for
`
`identification by the reporter and is
`
`attached hereto.)
`
`BY MR. SCHERER:
`
`Q.
`
`Subsequent
`
`to receiving the letter from
`
`Higgins & Dubner —— withdrawn.
`
`If you look at the last page of the letter,
`
`which is page 4 —— I'm sorry, withdrawn.
`
`At
`
`the time that this letter was sent
`
`to
`
`you by Higgins & Dubner, who were Higgins & Dubner
`
`representing,
`
`if you know?
`
`A.
`
`Q.
`
`That
`
`I know of, Joyce Irby.
`
`Joyce Irby, okay.
`
`Do you know whether or not
`
`they were
`
`representing Bernadette Cooper?
`
`A.
`
`Q.
`
`Bernadette Cooper was aware of the letter.
`
`Okay.
`
`If you look at the last page of the
`
`letter, which is page 4, you will see that there is cc
`
`copies to Joyce Irby and Bernadette Cooper and Lorena
`
`Stewart, Lynn Malsby, and Ron Sweeny.
`
`Rayvid Reporting Service
`(212) 267-3877
`
`_
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 12
`
`.
`
`Ron Sweeny was their attorney at that time?
`
`A.
`
`Yes.
`
`Q.
`
`Okay.
`
`Subsequent
`
`to that letter, did
`
`you —~
`
`in or about December 27th, 2005, did Bernadette
`
`Cooper and Joyce Irby have knowledge, actual
`
`knowledge,
`
`that you were performing as Klymaxx
`
`featuring Cheryl Cooley?
`
`A.
`
`Yes.
`
`Q.
`
`Okay.
`
`Now,
`
`I show you an e—mail dated
`
`December 27th, 2005, which appears to be from Lorena
`
`and Bernadette. And the body of the e—mail —— in the
`
`body of the e—mail, Lynn, Lorena, and Bernadette say
`
`.
`
`that, quote, "I am writing on behalf of Bernadette
`
`Cooper, Lorena, Stewart, Joyce Irby, and myself."
`
`Okay.
`
`Can we have this —~ is this the
`
`e—mail by which they demonstrate their knowledge that
`
`you were performing as Klymaxx featuring Cheryl
`
`Cooley?
`
`A.
`
`Yes.
`
`MR. SCHERER: Okay.
`
`Can I have this marked
`
`(Opposer's Exhibit
`
`9 was marked for
`
`identification by the reporter and is
`
`attached hereto.)
`
`BY MR. SCHERER:
`
`Rayvid Reporting Service
`(212) 267-3877
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 15
`
`Q.
`
`Do you know whether or not they have
`
`performed as Klymaxx in 2010?
`
`A.
`
`Q.
`
`Yes,
`
`they have.
`
`Okay.
`
`Do you know whether or not —— do you
`
`have any idea as to the number of dates?
`
`A.
`
`Q.
`
`No,
`
`I don't.
`
`Okay. That's it pretty much.
`
`(Proceedings adjourned at 10:34 a.m.)
`
`
`
`Rayvid Reporting Service
`(212) 267-3877
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 16
`
`STATE OF CALIFORNIA
`
`SS.
`
`COUNTY OF LOS ANGELES
`
`)
`
`I, CHERYL COOLEY, hereby certify under
`
`penalty of perjury under the laws of the State of
`
`California that the foregoing is true and correct.
`
`20i%1 at
`
`Executed this day of Mggfgild
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`
`CHERYL COOLEY
`
`Rayvid Reporting Service
`(212) 267—3877
`
`
`
`

`
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`Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent
`fraudulent removal and reattachment of this form to another document.
`Description of Attached Document
`Title or Type of Document:
`'D'€/P05 I {-7 O‘/’
`Document Date:
`NOV~fl144141g,
`it 10!
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`Number of Pages:A
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`Top of thumb here
`
`
`
`
`
`Signer(s) Other Than Named Above:
`
`CapacIty(Ies) Claimed by Signer
`Signer’s Name:
`( COO
`
`{X mdividual
`3 Corporate Officer — Title(s):
`3 Partner— El Limited 3 General
`3 Attorney-in-Fact
`E Trustee
`3 Guardian or Conservator
`D Other:
`
`.
`
`Signer ls Representing:
`
`.
`
`© 1999 National Notary Association - 9350 De Soto Ave., P.O. Box 2402 - Chalsworth, CA 91313-2402 - www.natlona|notary.org
`
`Prod. No. 5907
`
`Reorder: Call Toll-Free 1-800-876-6827
`
`

`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 17
`
`SS.
`
`) )
`
`)
`
`STATE OF CALIFORNIA
`
`COUNTY OF LOS ANGELES
`
`I, GRACE CHUNG, RMR, CRR, CSR No. 6246, a
`
`Certified Shorthand Reporter in and for the County of
`
`Los Angeles,
`
`the State of California, do hereby
`
`certify:
`
`That, prior to being examined,
`
`the witness
`
`named in the foregoing deposition was by me duly sworn
`
`to testify the truth,
`
`the whole truth, and nothing but
`
`the truth;
`
`That said deposition was taken down by me
`
`in shorthand at the time and place therein named, and
`
`thereafter reduced to typewriting by computer—aided
`
`transcription under my direction.
`
`I further certify that I am not interested
`
`in the event of the action.
`
`In witness whereof,
`
`I have hereunto subscribed my
`
`name .
`
`Dated:
`
`/0, «log?
`
`; PG C7?SR.iNQ.
`RMR, CRR, CLR
`
`Rayvid Reporting Service
`(212) 267-3877
`
`
`
`

`
`ERRATA SHEET:
`
`Case Name: CHERYL COOLEY V. BERNARDETTE COOPER and
`
`JOYCE IRBY
`Dep. Date:
`Deponent:
`
`November 1, 2010
`CHERYL COOLEY
`
`CORRECTIONS:
`
`Pg. Ln.
`
`From
`
`Subscribed and sworn to before
`
`me this _ day of
`
`CHERYL COOLEY
`
`

`
`

`
`CHERYL
`
`COOLEY - 11/1/2010
`
`Page 1
`
`A
`
`B
`
`12:1813:4,916:4,12
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`3:14,15,17,18,19,21
`
`abandoned 9:14,24
`
`10:3,4
`abandonment 9:17
`
`14:19
`
`action 17:17
`
`actual 12:5 13:2,7
`
`adjourned 15:8
`admissions 3:16 7:12
`
`7:17 8:1
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`affirmed 4:6
`
`Airline 2:21
`
`Angeles 16:2 17:2,6
`answer 3:14,18 6:25
`7:3 9:]
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`B3:6
`
`band 9:19,21,22,23
`behalf2:212:13
`
`Bernadette 3:21 9:18
`
`11:20,21,2412:4,11
`
`12:12,13
`BERNARDETTE 1:7
`
`best 10:11
`
`bit 14:11
`
`BOARD 1:2
`
`body 12:11,12
`
`C
`
`C2:10
`
`Answers 3:15,17 7:16
`
`California 223,21 4:1
`
`7:25 8:11,12
`APPEAL 1:2
`
`appears 12:10
`applicants 1:8 2:18
`3115,17 4:16,19 5:4,9
`
`6:24 7:13,16,25 8:8
`
`16:1,6,817:1,6
`called10:21 13:18
`
`captioned 8:11 9:1
`career 9:20,23,25
`Case 126
`cc 11:23
`
`CD 3:13 6:22
`
`Cooper 1:7 9:18 11:20
`11:21,24 1215,14
`
`3222,23 4:11,12,22
`
`5:13 6:17 7:8 812,17
`
`copies 11:24
`copy 13:21
`correct 10:1,2,18 16:6
`
`926,7 11:6 12:22
`13:13 14:2
`
`Exhibits 4:21
`
`County 16:2 17:2,5
`CRR2:5 17:4,24
`
`expresses 6:6
`e-mail3:9,1012:9,11
`
`CSR1:18 2:4 1714,23
`
`12:12,1613:6,7
`e—mails 4:17
`
`D
`
`D 3:1
`
`F
`
`date4:1910:15,17
`
`dated 3:9,10,12,20,22
`
`F2:13,14,20
`Fair2:2
`
`3:23 4:17,1810:25
`12:913:617:20
`
`featuring 10:8,15 12:7
`12:17 13:3,8
`
`dates 15:5
`
`day 16:7
`December 12:4,10
`demonstrate 12:16
`
`deposition 1:11 2:1
`4:20 17:9,l2
`DESCRIPTION 3:7
`
`February 3: 12
`file 6:25
`
`filed 5:3,4
`
`first3:17,18 4:6 8:11
`
`8213,22 9:110:13
`
`14:17,l7,18
`Floor2:15
`
`8:11,12,22 9:3,14,24
`
`13:214:18,18
`
`application 525,9 6:7
`6:13 7:14
`
`approximately 9: 1 8
`9:20 14:10
`
`asking 6:2
`attached 4:14,24 5:15
`
`6:19 7:10 8:4,19 9:9
`11:812:2413:15
`
`14:4
`
`attachment 3: 1 3
`
`V attachments 6:22,22
`attempted 14:18
`attention 5:21 ,23
`
`attorney 4:16,19 12:1
`attorneys 10:20
`August 3:22 13:1,6
`14:12
`
`Avenue 2:2,14
`aware 11:21
`
`a.m 1:13 2:3 4:315:8
`
`cease 10:20 11:1 13:18
`
`13:22
`
`ceased 14:11
`
`designated 9:12
`desire 6:7
`
`desist 10:20 11:2
`
`Certified 1:19 17:5
`
`13:18,22
`
`certify 16:4 17:7,16
`Cheryl 1:4,11 2:1 3:3
`4:510:9,1512:7,17
`
`13:4,9 1614,12
`CHUNG 1:18 2:417:4
`17:23
`
`circumstances 9:16
`
`CLR2:5 17:24
`
`come 8:6,21 10:7
`
`commencing 2:3
`computer—aided 17:14
`consists 6:21
`
`contained 5:19 7:18
`
`7:23
`
`continued 10:14 14:9
`
`14:21
`
`Cooley 1:4,11 2:1 3:3
`4:5 5:310:9,1512:7
`
`direct 5221,23
`direction 17:15
`
`document 5:8,19 6:10
`
`7:2 8110,25
`
`Dubner 3:19 10:21,25
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`
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`
`6
`
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`
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`
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`event 17:17
`
`evidence 5:18
`
`EXAMINATION 3:2
`
`5:1
`
`examined 4:7 17:8
`
`Executed 16:7
`
`Exhibit 3:8,9,10,11,12
`
`follows 4:7
`
`foregoing 16:6 17:9
`form 9:25
`further 17:16
`
`:
`
`G
`
`give 10:4
`going 9:22
`GRACE 1:18 2:417:4
`17:23
`
`Grider 5:24
`
`group 9:25
`
`H
`
`H3:6
`
`hereof10:17
`
`hereto 4:14,24 5:15
`
`6:197:10 8:4,199:9
`11:812:2413:15
`
`14:4
`
`hereunto 17:18
`
`Higgins 3:19 10:21,25
`11:11,15,15
`
`Rayvid Reporting Service
`(212) 267-3877
`
`

`
`
`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 2
`
`10:2411:2,10,12,14
`11:21,2312:3 13:18
`
`4:18
`
`OFFICE 1:1
`
`Highway 2:21
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`
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`
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`
`idea 15:5
`
`13:21,23
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`
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`
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`
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`
`5:14 6:18 7:9 8:3,18
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`
`longer 9: 19,21
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`
`11:22
`
`14:3
`
`indication 10:4
`
`interested 17:16
`
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`Lorena 3:21 11:24
`
`12:10,12,14
`
`interrogatories 3:17
`3:18 8:7,12,13,23 9:1
`
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`
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`11:2412:5,14
`
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`
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`
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`
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`
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`
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`
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`
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`
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`
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`
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`
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`
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`
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`
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`
`opposition 3211,14 5:4
`527,9 6:1,8,12,25 724
`
`original 14:6,9
`
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`
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`
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`
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`
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`
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`
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`
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`
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`
`receiving 11:10
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`
`10:12
`
`record 6:20
`
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`
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`
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`
`marked 4:10,12,20,22
`
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`
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`members 14:6
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`named 17:9,13
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`
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`
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`
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`
`penalty 16:5
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`
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`
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`
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`
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`
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`11:18,2412:5,14
`
`jscherer@jfsny.com
`2:16
`
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`
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`
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`
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`
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`
`letter 3: 12,19,21 ,22,23
`
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`
`6:6,11,21,21 10:20
`
`October 329,10 4:17
`
`Rayvid Reporting Service
`(212) 267-3877
`
`reflecting 5:8
`refresh 7:21
`
`Registered 1 :19
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`
`REPORTED 1:18
`
`reporter 1:19,19 4:13
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`
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`
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`
`8:20 9:5,10 11:4,9
`
`12:20,2513:11,16,25
`
`

`
`
`
`CHERYL
`
`COOLEY — 11/1/2010
`
`Page 3
`
`14:5
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`
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`
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`
`11;13,23
`421-71402:16
`
`Rayvid Reporting Service
`(212) 267-3877
`
`

`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true copy of the following:
`
`Transcript and Exhibits of the Deposition of Opposer, Cheryl Cooley
`
`was served upon Applicants on or about March 10, 2011, by delivering a copy of same to
`FedEx for delivery to:
`
`Jamie Shelden. Esq.
`1760 Suite F
`
`PMB No. 220
`
`Airline Highway
`Hollister, CA 95023
`
`Dated: May 13,2011
`
`W‘
`J ck F. Scherer
`
`

`
`
`
`VOLUME I EXHIBITSVOLUME I EXHIBITS
`
`

`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`.................................................... _-x
`
`CHERYL COOLEY,
`
`Opposer,
`
`Opposition No.: 91 189474
`
`BERNADETTE COOPER and JOYCE IRBY
`
`NOTICE OF TAKING TRIAL TESTIMONY
`
`TO:
`
`Jamie Shelden, Esq.
`1760 Suite F
`PMB No. 220
`Airline Highway
`Hollister, CA 95023
`
`YOU ARE HEREBY NOTIFIED that I shall, on behalf of Cheryl Cooley,
`
`Opposer, commence the taking oftestimony upon oral examination, at 10:00 in the
`forenoon ofNovember 1, 2010, at Marriott Courtyard, Old Pasadena, CA. in the above
`action, in accordance with the Federal Rules of Civil Procedure and the Trademark Rules
`fore a Notary Public,
`
`Notary Public.
`
`The name and address of the witness whose testimony will be taken is:
`
`CHERYL COOLEY, Opposer
`5807 Pickford Street
`Los Angeles, CA 90019
`
`and such other witnesses as may be called.
`
`
`
`

`
`The examination will continue from day to day until completed.
`
`You are invited to attend for the purpose of cross examination.
`
`Dated: October 20, 2010
`
`New York, New York
`
` J k F. Scherer
`
`CERTIFICATE OF SERVICE,
`
`A copy of the within Notice of Taking Trial Testimony has been duly served by
`
`first class mail on the attorney for the Applicants, Jamie Shelden, Esq., 1760 Suite F,
`
`PMB 220, Airline Highway, Hollister, CA 95023, this 20”‘ day of October, 2010.
`
`e;__,
`. Scherer
`
`Jac
`
`

`
`Page 1 of 1
`
`y
`‘
`
`l
`A
`
`Jack Scherer
`
`Jack Scherer [jscherer@jfsny.com]
`From:
`Sent: Wednesday, October 20, 2010 12:26 PM
`
`To:
`
`‘Jamie She|den'
`
`Subject: Cheryl Cooley, Opposer
`
`Jamie:
`
`On August 25, 2010, the Trademark Trial and Appeal Board mailed its decision concerning your
`application to dismiss and Opposer’s response and cross application for leave to take Opposer’s trial testimony.
`The decision granted Opposer time in which to take Opposer’s trial testimony as well as permitting Opposer to
`serve pretrial disclosures upon Applicants within 30 days of the date of mailing of the decision. Opposer’s Second
`Set of lnterrogatories (“Second Set”) was mailed to you on Sept 14, 2010, well within the 30 day period.
`Applicants’ response to the Second Set is unacceptable, in light of the August 25 decision.
`
`I will be taking the trial testimony of Opposer and such other witnesses as may be called starting at 10
`a.m. and continuing. The place of the exam is the Marriott Courtyard in Old Pasadena, California. You are
`welcome to attend. I am mailing today, the Notice of Taking Trial Testimony.
`
`Jack
`
`
`
`10/29/2010
`
`

`
`
`
`Page 1 of 1
`
`From: Jack Scherer [ischerer@jfsny.com]
`
`Sent: Friday, October 29, 2010 12:17 PM
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`To:
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`‘Jamie Shelden‘
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`Jamie:
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`Follow up to my earlier e-mail and the Notice of Taking Trial Testimony, please be advised that when you arrive at
`the Marriott Courtyard, 180 North Fair Oaks, Pasadena, please ask, at reception, for my room number, as I will be
`taking the testimony of Cheryl Cooley in my hotel room.
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`If you have any questions, please call.
`
`Jack
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`33:.
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`33:
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`§ §
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`10/29/2010
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`

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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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`CHERYL COOLEY,
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`Opposer,
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`BERNADETTE COOPER and JOYCE IRBY
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`Applicants.
`———————————————————————————————————————————————————————x
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`NOTICE OF OPPOSITION
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`In the matter of the application for registration of an alleged trademark
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`KLYMAXX for entertainment, namely, live performance by a musical band in class 41,
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`Serial No. 77571759 filed September 17, 2008, by JAMIE SHELDEN, an attorney with
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`offices now at 201A McCray Street, Suite 306, Hollister, CA 95023-4094, which was
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`published in the Official Gazette of February 24, 2009, the undersigned CHERYL
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`COOLEY residing at 5807 Pickford Street, Los Angeles, CA 90019- 4936 believes that
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`she would be damaged by such registration and hereby gives notice of her intention to
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`oppose and hereby opposes the registration of said alleged trademark.
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`Opposer hereby appoints Jack F. Scherer, a member of the Bar of the State of
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`New York, with offices at 99 Park Avenue, 3“ Floor, New York NY 10016, her attorney
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`with full power of substitution and revocation for the purpose of opposing such
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`

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`registration and taking all action required in said proceedings, Please direct all
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`correspondence in this case to Jack F. Scherer at the above identified address.
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`As grounds for the opposition, it is alleged that:
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`l. Opposer, Cheryl Cooley, is, and for many years has been, performing as
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`Klymaxx, a live musical band.
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`As of January 1, 1981, the live performing band known as Klymaxx which
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`then consisted of Opposer, Lorena Stewart (“Stewart”) , Lynn Malsby
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`(“Malsby”), Bernadette Cooper (“Cooper”), one of the Applicants, and three
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`(3) other individuals executed a recording agreement with Solar Records, Inc
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`(“ Solar”). The seven, including Opposer, were then known as Klymaxx.
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`Thereafter, as of July 16, 1985, Opposer, the Applicants, Cooper and Joyce
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`Irby (“Irby”), Stewart, Malsby, Robin Grider (“Grider”) and one (1) other
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`executed another recording agreement with Solar, distributed by MCA
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`Records (“MCA”). The six were then known as Klymaxx.
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`Opposer, Cooper, Malsby, and Stewart signed both Solar agreements, while
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`Irby and Grider only executed the second Solar agreement.
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`In 1988, both Applicants abandoned Klymaxx to pursue solo musical careers,
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`Cooper with MCA Records, and Irby with Motown Records.
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`Upon the abandonment of Klymaxx by Applicants, Klymaxx consisted of
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`original members, Opposer and Stewart, and Grider, who executed the second
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`Solar agreement.
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`

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`In 1990, Klymaxx, which then consisted of Opposer, Stewart, and Grider,
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`delivered the Klymaxx album entitled “ The Maxx Is Back” distributed by
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`MCA.
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`. For approximately 10 years, Klymaxx ceased performing.
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`Opposer auditioned musicians in July and August, 2002, and started
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`rehearsing in September, 2002. Opposer performed as Klymaxx on May 17,
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`2003, in Long Beach, California.
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`10.
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`Since May 17, 2003, Opposer performed ‘as Klymaxx in California, Arizona,
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`and Florida; and since June 3, 2004, Opposer has performed as “Klymaxx
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`featuring original guitarist Cheryl Cooley” in California, Arizona, Nevada,
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`Pennsylvania, Texas, Alabama, and Tennessee.
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`ll.
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`Opposer is presently performing as “Klymaxx featuring original guitarist
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`Cheryl Cooley”.
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`l2.
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`13.
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`14.
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`Upon information and belief, more than 15 years after Applicants
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`abandonment of Klymaxx, Applicnts’ first performance as Klymaxx was on
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`or after November 21, 2003, 6 months after Opposer’s first use of Klymaxx.
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`Stewart, Grider and Malsby join with Opposer in the within opposition.
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`Until 2004, none of the original members of Klymaxx had applied to register
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`Klymaxx until Opposer applied under Serial Number 76/498106 which was
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`refused because of the likelihood of confusion with the mark KLIMAX in
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`U.S. registration NO. 2726589.
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`Applicants are not now the owner of the alleged trademark sought to be registered and
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`have not now, and never have had the exclusive use thereof.
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`

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`The term Klymaxx is not now, and never has been exclusively identified with
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`the Applicants, and the mark sought to be registered does not distinguish the
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`Applicants from Opposer for entertainment, namely live performances by a
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`musical band known as Klymaxx. Malsby, Grider, and Stewart join with
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`Opposer in the within opposition.
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`By reason of the foregoing facts, Opposer, Malsby, Grider and Stewart
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`9
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`will be irreparably damaged by the registration of Applicant’s alleged mark and
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`Opposer believes that such registration would deceive the trade and purchasing
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`public in general and cause confusion or mistake or deception.
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`WHEREFORE, Opposer prays that this opposition be sustained, that
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`Serial No.7757l759 be rejected and that registration of the mark shown for
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`entertainment, namely live performances by a musical band be refused and denied.
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`0/
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`_
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`CHERYL COOLEY
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`Dated: MA’/zc/4 AG 1009
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`

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`Cheryl Cooley declares that: she has read the foregoing Notice of
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`Opposition and knows the contents thereof, that the same is rue to her own knowledge
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`except as to those matters therein stated to be alleged on information and belief, and, as to
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`those matters, she believes them to be true; and, further, that these statements were made
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`with the knowledge that Wlllfill false statements and the like so made are punishable by
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`fine or imprisonment, or both, under Section 1001 of Title 18 of the United States Code
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`and tha