Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA389026
`ESTTA Tracking number:
`01/19/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91195633
`Plaintiff
`Apple Inc.
`Joseph Petersen
`Kilpatrick Stockton LLP
`31 West 52nd Street, 14th Floor
`New York, NY 10019
`UNITED STATES
`AlJones@kilpatrickstockton.com, JPetersen@kilpatrickstockton.com,
`agarcia@kilpatrickstockton.com, NYTrademarks@kilpatrickstockton.com
`Other Motions/Papers
`Alicia Grahn Jones
`AlJones@kilpatricktownsend.com, JPetersen@kilpatricktownsend.com,
`agarcia@kilpatricktownsend.com, NYTrademarks@kilpatricktownsend.com
`/Alicia Grahn Jones/
`01/19/2011
`2011-1-19- Stipulated Conf. Protective Order.pdf ( 14 pages )(439069 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
`
`
`ESTTA389026
`ESTTA Tracking number:
`01/19/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91195633
`Plaintiff
`Apple Inc.
`Joseph Petersen
`Kilpatrick Stockton LLP
`31 West 52nd Street, 14th Floor
`New York, NY 10019
`UNITED STATES
`AlJones@kilpatrickstockton.com, JPetersen@kilpatrickstockton.com,
`agarcia@kilpatrickstockton.com, NYTrademarks@kilpatrickstockton.com
`Other Motions/Papers
`Alicia Grahn Jones
`AlJones@kilpatricktownsend.com, JPetersen@kilpatricktownsend.com,
`agarcia@kilpatricktownsend.com, NYTrademarks@kilpatricktownsend.com
`/Alicia Grahn Jones/
`01/19/2011
`2011-1-19- Stipulated Conf. Protective Order.pdf ( 14 pages )(439069 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Serial No. 77/779,673
`For the mark: THEAPPLE & Design
`
`Q“?-\PPLE
`
`Filed: July 13, 2009
`Published: January 12, 2010
`
`and
`
`In the Matter of Application Serial No. 77/779,664
`For the mark: THEAPPLE
`'
`
`Filed: July 13, 2009
`Published: January 12, 2010
`
`., _______________________________________________________"X
`
`APPLE INC.,
`
`'
`
`Opposer,
`
`v.
`
`AFFINITY LABS, INC.
`
`Applicant
`_______________________________________________________ --X
`
`Q Opposition No. 91195633
`
`.
`
`:
`
`STIPULATED CONFIDENTIALITY AND PROTECTIVE ORDER
`
`Opposer Apple Inc. (“Apple”) and Applicant Affinity Labs, Inc. (“Affinity”) (collectively
`
`“the parties”), having stipulated pursuant to Federal Rule of Civil Procedure 26(0) and TBMP
`
`§ 412.02 to the entry of the following Stipulated Confidentiality and Protective Order, which is a
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`modification of the Board’s standard form, the Board ENTERS this Stipulated Confidentiality
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`and Protective Order and ORDERS as follows:
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`US2008 2208218 5
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`
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`1.
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`Classes of Protected Information.
`
`The Rules of Practice in Trademark Cases provide that all inter partes proceeding files, as
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`well as the involved registration and application files, are open to public inspection. The terms
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`of this order are not to be used to undermine public access to files. When appropriate, however,
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`a party or witness, on its own or through its attorney, may seek to protect the confidentiality of
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`information by employing one of the following designations.
`
`1.1
`
`Confidential——Material to be shielded by the Board from public access.
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`1.2
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`Highly Confidential-—Material to be shielded by the Board from public access
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`an_d available for review by the parties and attorneys for the parties subject to the
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`provisions of paragraphs 3.4 and 3.7, and available for review by independent
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`experts or consultants pursuant to paragraphs 3.9 and 4.
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`1.3
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`Trade Secret/Commercially Sensitive——Material to be shielded by the Board from
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`public access and available for review by attorneys for the parties subject to
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`paragraphs 3.4 and 3.8, and available for review by independent experts or
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`consultants pursuant to paragraphs 3.9, 4, and 5.
`
`2.
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`Information Not To Be Designated as Protected.
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`Information may not be designated as subject to any form of protection if it (a) is, or
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`becomes, public knowledge, as shown by publicly available writings, other than through
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`violation of the terms of this Order; (b) is acquired by a non-designating party or non-party
`witness from‘ a third party lawfully possessing such information and having no obligation to the
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`owner of the information; (c) was lawfully possessed by a non-designating party or non-party
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`witness prior to the opening of discovery in this proceeding, and for which there is written
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`evidence of the lawful possession; (d) is disclosedaby a non-designating party or non-party
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`US2008 22082185
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`
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`witness legally compelled to disclose the information; or (e) is disclosed by a non designating
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`party with the approval of the designating party.
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`3.
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`Access to Protected Information.
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`3.1
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`The provisions of this Order regarding access to protected information are subject
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`to modification by written agreement of the parties or their attorneys, or by
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`motion filed with and approved by the Board.
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`3.2
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`Judges, attorneys, and other employees of the Board are bound to honor the
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`parties’ designations of information as protected but are not required to sign forms
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`acknowledging the terms and existence of this Order. Court reporters,
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`stenographers, video technicians or others who may be employed by the parties or
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`their attorneys to perform services incidental to this proceeding will be bound
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`only to the extent that the parties or their attorneys make it a condition of
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`employment or obtain agreements from such individuals, in accordance with the
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`provisions of paragraph 4.
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`3.3
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`3.4
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`Parties are defined as including individuals, officers of corporations, partners of
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`partnerships, and management employees of any type of business organization.
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`Attorneys for parties are defined as including outside and in-house counsel for the
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`parties in this proceeding, and support staff operating under outside counsel’s
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`direction, such as paralegals or legal assistants, secretaries, and any other
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`employees or independent contractors operating under counsel’s instruction.
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`3.5
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`Independent experts or consultants include individuals retained by a party for
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`purposes related to prosecution or defense of the proceeding but who are not
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`otherwise employees of either the party or its attorneys.
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`US2008 2208218 5
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`
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`3.6
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`3.7
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`3.8
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`3.9
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`Non-party witnesses include any individuals to be deposed during discovery or
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`trial, whether willingly or under subpoena issued by a court of competent
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`jurisdiction over the witness.
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`Parties @ their attorneys shall have access to information designated as
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`confidential or highly confidential, subject to any agreed exceptions.
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`Outside counsel and in—house counsel for the parties named in paragraph 3.4 shall
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`have access to information designated as trade secret/commercially sensitive.
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`Independent experts or consultants, non-party witnesses, and any other individual
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`not otherwise specifically covered by the terms of this Order may be afforded
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`access to confidential or highly confidential information in accordance with the
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`terms that follow in paragraph 4. Further, independent experts or consultants may
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`have access to trade secret/commercially sensitive information if such access is
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`agreed to by the parties or ordered by the Board, in accordance with the terms that
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`follow in paragraph 5.
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`4.
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`Disclosure to Any Individual.
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`Prior to disclosure of protected information by any party or its attorney to any individual
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`not already provided access to such information by the terms of this Order, the individual shall
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`be informed of the existence of this Order and provided with a copy to read. The individual will
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`then be required to certify in writing that the Order has been read and understood and that the
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`terms shall be binding on the individual. No individual shall receive any protected information
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`until the party or attorney proposing to disclose the information has received the signed
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`certification from the individual. A form for such certification is attached to this Order. The
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`party or attorney receiving the completed form shall retain the original.
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`US2008 22082185
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`
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`5.
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`Disclosure to Independent Experts or Consultants.
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`5.1
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`In addition to meeting the requirements of paragraph 4, any party or attorney
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`proposing to share trade secret/commercially sensitive information with an
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`independent expert or consultant must also notify the party which designated the
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`information as protected. Notification must be sent by email with a confirmation
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`copy sent by overnight mail through a reputable delivery service or forwarded by
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`certified mail, return receipt requested, and shall provide notice of the name,
`
`address, occupation and professional background of the expert or independent
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`consultant.
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`5.2
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`The party or its attorney receiving the notice shall have ten (10) business days to
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`object to disclosure to the expert or independent consultant. If objection is made,
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`then the parties must negotiate the issue before raising the issue before the Board.
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`If the parties are unable to settle their dispute, then it shall be the obligation of the
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`party or attorney proposing disclosure to bring the matter before the Board with
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`an explanation of the need for disclosure and a report on the efforts the parties
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`have made to settle their dispute. The party objecting to disclosure will be
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`expected to respond with its arguments against disclosure or its objections will be
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`deemed waived.
`
`6.
`
`Responses to Written Discovefl.
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`Responses to interrogatories under Federal Rule 33 and requests for admissions under
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`Federal Rule 36, and which the responding party reasonably believes to contain protected
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`information shall be prominently stamped or marked with the appropriate designation from
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`paragraph 1. Any inadvertent disclosure without appropriate designation shall be remedied as
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`US2008 22082185
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`
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`soon as the disclosing party learns of its error, by informing all adverse parties, in writing, of the
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`error. The parties should inform the Board only if necessary because of the filing of protected
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`information not in accordance with the provisions of paragraph 12.
`
`7.
`
`Production of Documents.
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`If a party responds to requests for production under Federal Rule 34 by making copies
`
`and forwarding the copies to the inquiring party, then the copies shall be prominently stamped or
`
`marked, as necessary, with the appropriate designation from paragraph 1. If the responding party
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`makes documents available for inspection and copying by the inquiring party, all documents
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`shall be considered protected during the course of inspection. After the inquiring party informs
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`the responding party what documents are to be copied, the responding party will be responsible
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`for prominently stamping or marking the copies with the appropriate designation from
`
`paragraph 1. Any inadvertent disclosure without appropriate designation shall be remedied as
`
`soon as the disclosing party learns of its error, by informing all adverse parties, in writing, of the
`
`error. The parties should inform the Board only if necessary because of the filing of protected
`
`information not in accordance with the provisions of paragraph 12.
`
`8.
`
`Depositions.
`
`8.1
`
`Protected documents produced during a discovery deposition, or offered into
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`evidence during a testimony deposition shall be orally noted as such by the
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`producing or offering party at the outset of any discussion of the document or
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`information contained in the document. In addition, the documents must be
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`prominently stamped or marked with the appropriate designation.
`
`8.2
`
`During discussion of any non-documentary protected information, the interested
`
`party shall make oral note of the protected nature of the information.
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`US2008 22082185
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`
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`8.3
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`The transcript of any deposition and all exhibits or attachments shall be
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`considered protected for 30 days following the date of service of the transcript by
`
`the party that took the deposition. During that 30-day period, either party may ’
`
`designate the portions of the transcript, and any specific exhibits or attachments,
`
`that are to be treated as protected, by electing the appropriate designation from
`
`paragraph 1. Appropriate stampings or markings should be made during this
`
`time. If no such designations are made, then the entire transcript and exhibits will
`
`be considered unprotected.
`
`9.
`
`Filing Notices of Reliance.
`
`When a party or its attorney files a notice of reliance during the party’s testimony period,
`
`the party or attorney is bound to honor designations made by the adverse party or attorney, or
`
`non—party witness, who disclosed the information, so as to maintain the protected status of the
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`information.
`
`10.
`
`Briefs.
`
`When filing briefs, memoranda, or declarations in support of a motion, or briefs at final
`
`hearing, the portions of these filings that discuss protected information, whether information of
`
`the filing party, or any adverse party, or any non—party witness, should be redacted. The rule of
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`reasonableness for redaction is discussed in paragraph 12 of this Order.
`
`11.
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`Handling of Protected Information.
`
`Disclosure of information protected under the terms of this Order is intended only to
`
`facilitate the prosecution or defense of this case. The recipient of any protected information
`
`disclosed in accordance with the terms of this Order is obligated to maintain the confidentiality
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`US2008 22082185
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`
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`of the information and shall exercise reasonable care in handling, storing, using or disseminating
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`the information.
`
`12.
`
`Redaction; Filing Material With the Board.
`
`12.1
`
`When a party or attorney must file protected information with the Board, or a
`
`brief that discusses such information, the protected information or portion of the
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`brief discussing the same should be redacted from the remainder. A rule of
`
`reasonableness should dictate how redaction is effected.
`
`12.2
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`Redactjon can entail merely covering a portion of a page of material when it is
`
`copied in anticipation of filing but can also entail the more extreme measure of
`
`simply filing the entire page under seal as one that contains primarily confidential
`
`material. If only a sentence or short paragraph of a page of material is
`
`confidential, covering that material when the page is copied would be appropriate.
`
`In contrast, if most of the material on the page is confidential, then filing the
`
`entire page under seal would be more reasonable, even if some small quantity of
`
`non-confidential material is then withheld from the public record. Likewise,
`
`when a multi-page document is in issue, reasonableness would dictate that
`
`redaction of the portions or pages containing confidential material be effected
`
`when only some small number of pages contain such material.
`
`In contrast, if
`
`almost every page of the document contains some confidential material, it may be
`
`more reasonable to simply submit the entire document under seal.
`
`12.3
`
`Protected information, and pleadings, briefs or memoranda that reproduce, discuss
`
`or paraphrase such information, shall be filed with the Board under seal. The
`
`US2008 22082l8.S
`
`
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`envelopes or containers shall be prominently stamped or marked with a legend in
`
`substantially the following form :
`
`CONFIDENTIAL
`
`This envelope contains documents or information that are subject to a protective
`order or agreement. The confidentiality ofthe material is to be maintained and
`the envelope is not to be opened, or the contents revealed to any individual,
`except by order ofthe Board.
`
`13.
`
`. Acceptance of Information; Inadvertent Disclosure.
`
`Acceptance by a party or its attorney of information disclosed under designation as
`protected shall not constitute an admission that the information is, in fact, entitled to protection.
`
`Inadvertent disclosure of information which the disclosing party intended to "designate as
`
`protected shall not constitute waiver of any right to claim the information as protected upon
`
`discovery of the error.
`
`14.
`
`Challenges to Designations of Information as Protected.
`
`14.1
`
`If the parties or their attorneys disagree as to whether certain information should
`
`be protected, they are obligated to negotiate in good faith regarding the
`
`designation by the disclosing party. If the parties are unable to resolve their
`
`differences, the party challenging the designation may make a motion before the
`
`Board seeking a determination of the status of the information.
`
`14.2 ‘ A challenge to the designation of information as protected must be made
`
`substantially contemporaneous with the designation, or as soon as practicable
`
`after the basis for challenge is known. When a challenge is made long after a
`
`designation of information as protected, the challenging party will be expected to
`
`show why it could not have made the challenge at an earlier time.
`
`USZOOS 22082185
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`
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`14.3 The party designating information as protected will, when its designation is timely
`
`challenged, bear the ultimate burden of proving that the information should be
`
`protected.
`
`15.
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`Board’s Jurisdiction; Handling of Materials After Termination.
`
`15.1 The Board’s jurisdiction over the parties and their attorneys ends when this
`
`proceeding is terminated. A proceeding is terminated only after a final order is
`
`entered and either all appellate proceedings have been resolved or the time for
`
`filing an appeal has passed without filing of any appeal.
`
`15.2 The parties may agree that archival copies of evidence and briefs may be retained,
`
`subject to compliance with agreed safeguards. Otherwise, within 30 days after the
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`final termination of this proceeding, the parties and their attorneys shall return to
`
`each disclosing party the protected information disclosed during the proceeding,
`
`and shall include any briefs, memoranda, summaries, and the like, which discuss
`
`or in any way refer to such information. In the alternative, the disclosing party or
`
`its attorney may make a written request that such materials be destroyed rather
`
`than returned.
`
`16. Other Rights of the Parties and Attorneys.
`
`This Order shall not preclude the parties or their attorneys from making any applicable
`
`claims of privilege during discovery or at trial. Nor shall the Order preclude the filing of any
`
`motion with the Board for relief from a particular provision of this Order or for additional
`
`protections not provided by this Order.
`
`SO ORDERED, this __day of _____________, 2011.
`
`
`
`
`US2008 2208218.5
`
`
`10
`
`
`
`Interlocutory Attorney
`Trademark Trial and Appeal Board
`
`US2008 22082185
`
`11
`
`
`
`
`
`joseph Petersen
`Kilpatriek Townsend & Stockton LLP
`31 West 52nd Street, 14th Floor
`
`Foley & Lardner LLP
`90 Park Ave
`
`New York, New York 10019
`
`New York, New York 10016-1301
`
`Attorneyfor OpposerAppleInc.
`Date:
`M
`
`Attorneyfor/1p17z’cantA_/YinilyLabs Inc.
`Date:
`M
`
`US2008 22082185
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Serial No. 77/779,673
`For the mark: THEAPPLE & Design
`
`QVXPPLE
`
`Filed: July 13‘, 2009
`Published: January 12, 2010
`
`and
`
`In the Matter of Application Serial No. 77/779,664
`For the mark: THEAPPLE
`
`Filed: July 13, 2009
`Published: January 12, 2010
`
`....................................._;-___-__-----____-_X
`
`APPLE INC.,
`
`Opposer,
`
`v.
`
`AFFINITY LABS, INC.
`
`Applicant.
`.......................................................--X
`
`Opposition No. 91195633
`
`-
`
`:
`
`ACKNOWLEDGMENT OF STIPULATED CONFIDENTIALITY
`
`I
`
`AND PROTECTIVE ORDER
`
`I
`[print name], declare that I have been provided
`with a copy of the Stipulated Confidentiality and Protective Order regarding the disclosure of,
`and protection of, certain types of information and documents during and after the above~
`captioned opposition proceeding before the Trademark Trial and Appeal Board.
`
`I have read the Stipulated Confidentiality and Protective Order and understand its terms
`and provisions, by which I agree to be bound. Specifically, I agree to hold in confidence any
`information or documents disclosed to me in conjunction with any part I take in this proceeding.
`
`I declare under the penalty of perjury that these statements are true and correct.
`
`US2008 22082185
`
`13
`
`
`
`[signature]
`
`[print title, if applicable]
`
`[date]
`
`US2008 22082I8.5
`
`14
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