BULKY DOCUMENTS
`
`(Exceeds 100 pages)
`
`Filed:
`
`7[26[2011
`
`Title: OPPOSER’S NOTICE OF RELIANCE #5: PRINTED
`
`PUBLICATIONS.
`
`Part
`
`lof 2
`
`
`
`

`
`
`
`NOVAK DRUCE + QUIGG LLP
`ATTORNEYS AT LAW
`
`July 22, 2011
`
`First Class Mail
`
`United States Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.O. Box 145 1
`
`Alexandria, Virginia 22313-1451
`
`Re:
`
`Opposition No. 91194928
`Appl. Ser. No. 77/769,844
`Opposed Mark: BERRYWAV (and Design)
`Our Matter No.: 8173.172
`
`Dear Commissioner:
`
`Enclosed for filing in connection with the above-referenced opposition is Opposer’s Notice of
`Reliance # 5, together with the supporting exhibits, filed under certificate of mailing dated July
`22, 2011.
`
`In accordance with 37 CFR § 2.197, the undersigned hereby certifies that this letter along with
`the documents described in the foregoing paragraph, was deposited with the United States Postal
`Service with sufficient postage as first class mail in an envelope addressed to: United States
`Patent and Trademark Office, Trademark Trial and Appeal Board, P.O. Box 1451, Alexandria,
`Virginia 22313-1451, on this 22nd day of July, 2011.
`
`Thank you for your attention to this matter.
`
`Respectfully yours,
`NOVAK DRUCE + QUIGG LLP
`
`Je
`
`y J. Morgan
`
`|l||||||ll|||||l||||||||ll|||||l|||||||||||||H|||
`U7-26-2011
`
`U 3. Patent.
`
`:. THDI‘:/TM Mail Rcpl UL
`
`5'32
`
`300 New Jersey Avenue, NW" Fifth Floor “Washington, DC. -* 20001
`2.: 37'\o.‘.:: 202659.01 00 « 0
`i-J‘Zl>f".".I 202659.01 05
`
`www. novcil<druce.com
`
`

`
`TTAB
`
`CERTIFICATE or MAII
`
`'
`
`I hereby certify that this correspondence is being deposited with the
`United States Postal Service with sufficient postage as first-class
`mail
`in an envelope addressed to: Trademark Trial and Appeal
`Board. United States Patent and Tr%demark Office, P.O.Box I451,
`, 201 l.
`Ale
`ia, VA 22313-1451, on July Q
`
`By:
`
`Jeffrey J. Morgan
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`RESEARCH IN MOTION
`
`LIMITED
`
`Opposer,
`
`v.
`
`BERRYWAV, LLC
`
`Applicant.
`
`\J§/Q/Q/%\—/%%%%%/%
`
`Serial No.:
`
`77/769,844
`
`Mark: BERRYWAV (and Design)
`
`Opposition No. 91 194928
`
`OPPOSER’S NOTICE OF RELIANCE #5:
`
`PRINTED PUBLICATIONS
`
`Opposer Research In Motion Limited (“RIM” or “Opposer”), pursuant to 37 C.F.R. §
`
`2.l22(e), hereby gives notice that it will rely on Research In Motion Limited’s 2009 and 2010
`
`Annual Reports, attached hereto as Exhibits 8 and 9, respectively. The Annual Reports are
`
`available to the general public on the Internet by download from clickable links at RIM’s website
`
`at the URL shown in Exhibit 10. The Annual Reports show financial data related to the sale of
`
`goods and services under the BLACKBERRY trademark and are relevant to show the fame,
`
`notoriety, reputation, prestige and scope of use of the mark.
`
`Additionally, Opposer hereby gives notice that it will further rely on RIM’s Annual
`
`Information Forms for the fiscal year ended February 28, 2009 and the fiscal year ended
`
`

`
`February 27, 2010, attached hereto as Exhibits 11 and 12, respectively. The Annual Information
`
`Forms are available to the general public on the Securities and Exchange Commission’s website
`
`on the Internet at the URLs shown in Exhibits 11 and 12. The Annual Information Forms show
`
`financial data related to the sale of goods and services under the BLACKBERRY trademark and
`
`are relevant to show the fame, notoriety, reputation, prestige and scope of use of the mark.
`
`Dated: July
`
`, 2011
`
`Wi
`
`R. Towns
`
`Jeffrey J. Morgan
`Novak Druce + Quigg LLP
`1000 Louisiana Street, 53rd Floor
`
`Houston, Texas 77002
`
`Attorneys for Opposer
`Research In Motion Limited
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the foregoing OPPOSER’S NOTICE OF RELIANCE
`#5 was sent by U.S. First Class Mail, postage prepaid, to the following on this 27-“Oéay of
`
`July, 2011:
`
`Hunter S. Freeman
`
`McNair Law Firm, P.A.
`PO Box 447
`
`Greenville, South Carolina 29602-0447
`
`OfNovak Druce + Quiggh§LP
`
`300 New Jersey Ave. NW
`Washington, DC 20001
`
`

`
`EXHIBIT 8
`
`Submitted with Opposer’s Notice of Reliance # 5
`
`Research In Motion Limited v. BerryWav, LLC.
`Opposition No. 91 194928
`
`

`
`
`
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`
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`Years of
`BlackBerry..
`
`with Blacl<Berry.
`
`Research In Motion (RIM) is proud to be celebrating 25 years of innovation
`and 10 years of Blacl<Berry“°. With over 50 million smartphones shipped, RIM
`helps users all over the globe connect to the specific people, information and
`media that makes their worlds go round. The success of Blacl<Berry products
`and services is driven by passionate employees, outstanding partnerships,
`distinctive technological expertise, a commitment to quality and a culture that
`embraces innovation, customer service and operational excellence.
`
`

`
`Connect to your favorite entertainment.
`
`Your BlackBerry smartphone puts powerful audio, video and gaming
`capabilities at your fingertips. Listen to music or watch videos
`
`whenever you wish. Play mobile games when you have time on
`your hands. Take photos or shoot videos of friends. And use built—in
`
`GPS to ensure that you find thatshop, restaurant or dinner party.
`
`your next trip — all on your BlackBerry smartphone.
`
` Purchase a novel, order flowers, reserve concert tickets and book
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`Keep tabs on your social circles. Share recent baby photos and make sure
`friends see your vacation video clips. Wish Uncle Stu "Happy Birthday,”
`instant message Sophie about lunch, email the mechanic or call Grandma
`just to say hello. Stay linked to the office while in the field or traveling,
`send important files to your co—workers and edit documents on the spot.
`Plan a night out with the girls or a poker game with the guys. Connecting
`to your social networks has never been easier.
`
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`night's sports scores. Review your stock portfolios performance. Find
`
`a great bistro for next Thursday's business lunch. Check the weather
`before heading to the soccer game. investigate the registry for gift
`ideas and get directions to the wedding. Make sure tomorrow's
`
`meeting is still on and review the big presentation. Connecting to all
`of your important information while on the go has never been easier.
`
`____.___._.____.
`
`_____Z_______
`
`
`
`2008
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`

`
`

`
`
`
`The following discussion contains forward-looking statements
`within the meaning of the US. Private Securities Litigation
`Reform Act of 1995 and applicable Canadian securities laws,
`including statements relating to R/M's plans and expectations
`for fiscal 2010, Many factors could cause RIM '5 actual results,
`performance or achievements to differ materially from those
`expressed or implied by the forward-looking statements, as
`described below under "Management's Discussion and
`Analysis of Financial Condition and Results of Operations -
`Special Note Regarding Forward-Looking Statements.”
`
`Fellow Shareholders:
`
`Fiscal 2009 was another year of exceptional growth for
`Research In Motion (RIM). The BlackBerry subscriber account
`base grew by almost 80% in fiscal 2009, driven by strong sales
`in both enterprise and consumer markets as well as excep-
`tional market acceptance of the new BlackBerry products
`launched throughout the year. We are also pleased to report
`that BlackBerry was the number one selling smartphone brand
`in North America.
`
`2009 marks the 10th anniversary of the BlackBerry wireless
`solution, and we are proud to have recently shipped our 50
`millionth BlackBerry smartphone. RIM also achieved record
`financial results with strong revenue and earnings growth, and
`maintained a strong balance sheet with over $2 billion in cash
`and investments and no debt. RIM introduced an unprec-
`edented number of new smartphones during the year, with
`the majority launched in the second half, and continued to
`expand the reach of the BlackBerry platform into broader
`market segments.
`-
`RlM continues to benefit from the industry shift to smart-
`phones and achieved significant market share in both North
`America and abroad during fiscal 2009. RlM’s position in the
`market and strong partnerships allowed us to grow substan-
`tially despite the turbulent economic environment that has
`
`been prevalent throughout fiscal 2009. We are confident in
`RlM’s ability to thrive in fiscal 2010 and are taking steps to
`position the company to take advantage of the opportunities
`ahead.
`
`We are proud of RlM’s accomplishments during the year
`and are grateful to the over 12,000 employees around the
`world whose talents, hard work and determination enabled
`RIM to maintain its market leading position. We would also like
`to communicate sincere appreciation to our customers, part-
`ners and shareholders for their support throughout fiscal 2009.
`Some of RlM’s achievements during the past year included:
`
`0 Revenue growth of 84% from approximately $6 billion
`to approximately $11 billion;
`
`- The introduction of many new and powerful BlackBerry
`smartphones, including the BlackBerry” Bold" smartphone,
`BlackBerry” Pearl” Flip smartphone, B|ackBerry® Storm”
`smartphone, BlackBerry” Curve” 8350i smartphone,
`BlackBerry” Curve-"‘ 8330 smartphone and BlackBerry”
`Curve" 8900 smartphone; '
`
`' Expansion of the BlackBerry subscriber account base to
`approximately 25 million subscribers, with record quarterly
`net subscriber account additions of 3.9 million in the fourth
`quarter;
`
`- The launch of a new, global BlackBerry brand campaign;
`
`0 BlackBerry ranked on the Millward Brown Top 100 Most
`Powerful Brands list at number 51 in the world, and rated as
`the fastest growing brand on the list with a 390% increase in
`brand value;
`
`0 Shipment of the 50 millionth BlackBerry smartphone in
`January, with approximately 26 million smartphones shipped
`in fiscal 2009 alone;
`
`0 The addition of over 100 new carrier and distribution
`partnerships globally;
`
`' Successful penetration of new market segments with
`approximately 60% of net subscriber account additions in
`fiscal 2009 coming from non-enterprise customers;
`
`0 Enhancement of the mobile experience through powerful
`partnerships that helped deliver a wide range of compelling
`mobile applications;
`
`0 Expansion of manufacturing capabilities through the
`addition of new outsourcing partners around the world
`which allowed us to almost double the number of devices
`shipped during fiscal 2009; and
`
`0 Receipt of the 2009 GSMA Chairman's Award in recognition
`of RlM’s role in pioneering the wireless data industry.
`
`

`
`Financial Highlights
`
`(in thousands of‘U'.S. dollars,-except perushare amounts)
`
`U.$. GAAP
`
`‘March 1, 2008
`
`‘March 3, 2007
`
`
`
`’
`
`.
`
`'
`
`'
`
`,
`
`_
`
`$ 6,009,395
`$ 3,080,581
`,
`1,241,310
`108,112
`=79,36’l
`1,8.-‘l0,52O -
`516,653 ~
`‘:$ 1.,‘293,'867
`.'$
`2.31
`.$
`.2.'_26
`_
`.‘51..'3%
`60%
`14.7%
`
`_
`
`'$ 3,037,103
`$1 2,657,802
`_
`'
`774,095
`_ 76,879 _
`.52,-117
`" ‘858,'945‘ '-
`1' 227,373
`631,572
`-
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`'$
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`
`54.6%
`7.8%
`17.7%
`
`Statementiof Operat‘ions~data
`Revenue ...............................................................
`Gross ‘margin ................................................................
`Research -& development and selling,
`1
`‘general and -administration ..........
`Amortization ............................
`"Investment income .................
`-income before:~.incomes.taxes..
`.=Provision':for‘income taxes
`‘Net’-‘income ........................
`Earningsrper=share....
`............................
`«Basic .;........i.......
`{Diluted ........
`.........................................................
`"opeEatingedata -(percentage :'o'f-ssrevenue)
`Grossrnargin .................................................
`
`.........................
`Research and development
`‘ Selling, marketing and administration ...........................
`2-:Balance1Sheet-data
`Cash, cash equivalents, shortaterm
`.
`-investments and investments
`.$ 1,412,878
`$ 2,343,996
`Total assets ........................................................................
`..$ 3,088,949
`$ 5,511,187
`
`Shareholders"‘=‘equity .
`$12,483,500
`$3,933,566
`
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`200012001
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`2003
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`
`2008 .2009
`
`2009
`
`2008
`
`

`
`
`
`Financial Results and Administration
`
`Revenue in fiscal 2009 grew to approximately $11 billion from
`$6 billion in the previous year. Hardware continued to repre
`sent the largest percentage of revenue at 82%, with service
`contributing-approximately 13%, and software, accessories,
`‘ and other revenue contributing the remainder. RlM shipped
`approximately 26 million smartphones in fiscal 2009, which
`was driven by strong demand from new customers as well as
`handset upgrades from a loyal customer base.
`-Gross margin for the year was approximately 46%, down
`from fiscal 2008. This decline was principally related to the
`introduction of new feature-rich, premium smartphones with
`higher associated costs (such as the BlackBerry Bold smart-
`phone, BlackBerry Storm smartphone and BlackBerry Curve
`8900 smartphone), an increased percentage of revenue derived
`from hardware sales relative to software and service fees, and
`unfavorable trends in foreign exchange rates.
`The past year has been a period of significant investment
`for RIM with the launch of a new brand campaign, an aggres-
`sive entry into broader market segments and the expansion of
`our global R&D capabilities. We plan to leverage these types
`of investments and take advantage of opportunities for cost
`improvements to grow RlM’s market share and profitability in
`fiscal 2010.
`
`Operating expenses for the year totaled approximately
`$2.38 billion and remained flat with the previous year as a
`percentage of revenue as we continued to invest in brand,
`channels and R&D.
`
`Net income in fiscal 2009 increased to $1.89 billion or $3.30
`per share fully diluted versus $1.29 billion or $2.26 per share
`fully diluted in the prior year.
`Capital expenditures increased from approximately $350
`million in fiscal 2008 to approximately $834 million in fiscal
`2009. The majority of this investment was for new facilities,
`computers and equipment to support RlM’s growing employee
`base and the expansion and enhancement of the BlackBerry‘‘‘’
`infrastructure. RIM also invested $736 million during the year
`for acquisitions of intellectual property and companies with
`strategic technologies that enhance RlM’s business.
`RIM continues to have a strong balance sheet with no debt
`and approximately $2.24 billion in cash, cash equivalents,
`short-term investments and long-term investments.
`
`RlM had over 12,000 employees at the end of fiscal 2009,
`up from approximately 8,400 employees at the end of fiscal
`2008. This increase was spread across all areas of the com-
`pany including R&D, carrier support, business development,
`marketing, customer care and manufacturing. We continue to
`recruit the best talent and believe that RlM’s team of dedicated
`employees is our strongest asset.
`
`Sales, Marketing 8: Distribution
`
`During the past year, RlM continued to expand the availability
`of BlackBerry products and services through expansion of dis-
`tribution channels in North America and around the world. We
`made significant inroads with retail partners and saw the con-
`tribution from these channels grow substantially over the year.
`Retail sales during the holiday buying season this year were the
`strongest ever for RIM, and independent surveys indicated that
`BlackBerry smartphones consistently ranked in the top three
`bestsellers in North America. BlackBerry smartphones are now
`available through approximately-475 carriers and distribution
`channels, in over 160 countries around the world.
`
`R&D and Manufacturing
`
`RlM’s product development philosophy has always been
`defined by the underlying values of innovation, quality and effi-
`ciency; and in fiscal 2009, the R&D team did an exceptional job
`of delivering on these values. RIM undertook the ambitious
`task of launching a record number of new BlackBerry smart-
`phones that incorporated the latest chipset technologies, next
`generation network support, new high resolution displays, new
`and innovative input technologies and completely new user
`interfaces. The launches of these new products — including the
`BlackBerry'Bold smartphone (RlM’s first HSDPA smartphone),
`the BlackBerry Storm smartphone (RlM’s first touch—screen
`smartphone with the award-winning SurePress"‘ technology),
`the BlackBerry Pearl Flip smartphone (RlM’s first “c|am~shell"
`smartphone), the iDen-based BlackBerry Curve 8350i smart-
`phone (with Push-to-Talk) and the BlackBerry Curve 8900
`smartphone (based on a next generation platform) - were key
`factors that contributed to the stellar revenue and market share
`growth experienced by Rllvl this year.
`
`10
`
`

`
`RlM continues to focus on scaling its R&D, manufacturing
`and new product introduction capabilities. During the year
`RIM opened two. new R&D centers - one in Germany and one
`in the United States - while also continuing to grow our Ca-
`nadian presence. RlM's R&D organization now has over 5,000
`employees engaged in areas including advanced research,
`product development, standards and licensing.
`In order to
`support the growing demand for our products, we added sig-
`nificant capacity to our manufacturing organization by adding
`new outsourcing partners globally to increase flexibility and
`scalability.
`in addition, we invested in the upgrade of certain
`production and test equipment in our own manufacturing
`facility to enable faster production. These efforts were instru-
`mental in allowing RIM to ramp production quickly during the
`fall in order to meet the strong demand generated by the new
`product launches.
`
`Another area of focus during the year was the development
`of BlackBerry” Enterprise Server version 5.0. This initiative
`involves a substantial effort from hundreds of engineers and
`will provide enterprises and their IT departments with the most
`scalable, manageable and reliable BlackBerry solution yet. We
`are looking forward to launching the product in the coming
`months.
`
`BlackBerry in the Enterprise
`
`The enterprise market continues to be very important to RlM’s
`business and there are now over 175,000 organizations with
`BlackBerry Enterprise Sewer installed behind the corporate
`firewall. RlM’s enterprise customer base is diversified with sig-
`nificant growth in the past year coming from sectors including
`Government, Law Enforcement, Health Care and Education.
`The BlackBerry” Mobile Voice System (BlackBerry MVS) is
`also beginning to gain traction as organizations look for ways
`to leverage their existing BlackBerry infrastructure to reduce
`telecom costs. BlackBerry MVS enables BlackBerry smart-
`phones to effectively become a mobile desk-phone, with one
`phone number ringing all devices, a singlevoice mailbox to
`manage, internal extension dialing capabilities, and added
`benefits for IT departments that want better control of the
`
`mobile phones in their organization. BlackBerry MVS can also
`help enterprises reduce international calling costs by lever-
`aging wireline calling rates. Rather than slowing the adoption
`of BlackBerry MVS, the difficult economic times actually appear
`to be accelerating interest in the platform due to its potential
`for a compelling return on investment. Many organizations are
`looking for ways to reduce costs and BlackBerry MVS is a good
`fit as it plugs into existing BlackBerry Enterprise Server and
`telecom infrastructures at very little incremental cost.
`BlackBerry Enterprise Server version 5.0 will be the most sig-
`nificant upgrade to BlackBerry Enterprise Server in over three
`years and, after many months of planning and testing at over
`1,000 beta sites, BlackBerry Enterprise Server V5.0 will be ready
`soon. This latest release delivers on several key corporate IT
`imperatives, including increased manageability, lower total cost
`of ownership, scalability, support for very large scale deploy-
`ments and easy mobilization of hundreds of applications.
`BlackBerry Enterprise Server 5.0 will also introduce a number
`‘of highly desired user capabilities, including file sharing, the
`ability to securely download files from the corporate network
`and enhanced email management features including the ability
`to create/delete/rename folders and assign flags to messages.
`This is the most powerful version of BlackBerry Enterprise
`Server ever and we believe it will further cement RlM’s leader-
`ship position in the enterprise market.
`
`BlackBerry Application Ecosystem
`RIM continued to expand the BlackBerry developer community
`and to enhance the platform to make it easier for our partners
`to develop compelling BlackBerry applications. RIM works with
`a broad range of developers, solution providers and system
`integrators. Together these groups have already brought thou-
`sands of BlackBerry applications and solutions to market and
`we expect this number to significantly increase with the launch
`of BlackBerry App World”. BlackBerry App World is an online
`application storefront designed to help application developers
`and carriers reach millions of BlackBerry smartphone users and
`to provide consumers with greater choice, enhanced applica-
`tion discovery and an easy method for managing the purchase,
`installation and upgrades of mobile applications.
`
`Unprecedented Global Growth
`
`
`
`W5’! Countries
`
`Carriers & Distribution Channels
`
`2008
`
`
`7200‘.-'
`
`
`
`V BlackBerry presence
`
`

`
`In fiscal 2009 there was a marked increase in the number
`of consumer applications being developed for the BlackBerry
`platform as the multimedia features on BlackBerry smart-
`phones continued to increase and as the number of consumers
`selecting BlackBerry smartphones continued to grow. Applica-
`tion availability for corporate and business use also remains
`robust with new solutions launched this year for the Health
`Care, Government, Law Enforcement, Education, Manufac-
`turing, Retail and Professional Services markets, among others.
`Other initiatives in fiscal 2009 that were focused on sup-
`porting a thriving developer community included the launch of
`the BlackBerry Partners Fund in partnership with RBC Capital
`and Thomson Reuters, the hosting of the first annual Black-
`Berry Developer Conference in California and the introduction
`of new easy-to—use development tools such as the BIacl<Berry®
`JDE Plug-in for Eclipse”.
`We look forward to supporting the continued proliferation
`of the BlackBerry application ecosystem throughout fiscal 2010.
`
`BlackBerry infrastructure
`
`We continue to invest in the BlackBerry Infrastructure to en-
`hance the BlackBerry smartphone experience and support the
`growing subscriber account base. In fiscal 2009, the BlackBerry
`Infrastructure supported more than triple the amount of traffic
`it did in fiscal 2008 with over 3 petabytes of traffic flowing
`through the system each month. Our proactive and ongoing
`investment in infrastructure has enabled us to continue to
`provide the industry-leading functionality, quality of service, se-
`curity and scalability required to continue leading the industry
`and to continue meeting the growing needs of our customers
`and partners.
`
`The‘\v'ear Ahead
`
`We believe RIM is well positioned to take advantage of the
`exciting opportunities that lie ahead in fiscal 2010. Some of our
`goals for the year include:
`
`' Expand our customer base in existing and new markets by
`growing and strengthening our relationships with carriers
`and distribution partners across the globe;
`
`0 Effectively manage costs and operating expenses to grow
`earnings;
`
`0 Continue to launch innovative new products and services to
`address existing and new market segments;
`
`° Extend RlM’s market leadership through innovation and
`focused investments in R&D;
`
`0 Launch BlackBerry Enterprise Server V5.0 and increase the
`adoption of BlackBerry® MVS in the enterprise;
`
`0 Continue to expand and grow our presence in the
`enterprise market;
`
`- Expand the number and variety of applications and
`content available for BlackBerry smartphone users through
`BlackBerry App World and through other partnerships;
`
`0 Attract, hire and retain the best available talent to support
`RlM's customers and partners and to maintain RIM’s market
`leading position; and
`
`0 Continue to focus on delivering strong financial
`performance for our shareholders.
`
`Customer Support
`
`Providing exceptional support for the growing number of
`BlackBerry customers is an important competitive advantage
`for RIM and its partners. There are now over 1,500 dedicated
`technical and affiliated support staff working at five customer
`support facilities around the world providing 24-hour, 7—days
`per week, multi-lingual support to meet the needs of our
`expanding customer base. Four new initiatives were launched
`by the BlackBerry” Technical Support Services Team in fiscal
`2009, including the BlackBerry“ Certification Program to allow
`our partners to enhance their knowledge of BlackBerry hard-
`ware and software; BlackBerry“ Support Community Forums,
`a self-service discussion medium where device users and IT
`administrators come together to ask questions of one another;
`BlackBerry Expert Support Center (BESC) to provide on-line
`technical support for accounts that have technical support
`contracts with RIM; and BlackBerry Answers which acts as
`both a mobile and desktop self-serve Q&A center. Many of
`the steps taken by the BlackBerry Technical Support Services
`Team in fiscal 2009 are designed to support the growing base
`of consumers and small business users. These new programs
`are designedto find new efficiencies, automate and streamline
`support processes, and utiiize smart-technologies to aid our
`customers and partners.
`
`12
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