throbber
Trademark Trial and Appeal Board Electronic Filing System. httgj/estta.usQto.gov
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`91 1 95943
`
`Plaintiff
`
`Integrated Management Information, Inc.
`CHERYL L BURBACH
`HOVEY WILLIAMS LLP
`10801 MASTIN BOULEVARD SUITE 1000, 84 CORPORATE WOODS
`OVERLAND PARK, KS 66210
`UNITED STATES
`
`c|b@hoveywi||iams.com, |itigation@hoveywi||iams.com
`Plaintiff's Notice of Reliance
`
`
`
`Cheryl L. Burbach
`
`c|b@hoveywi||iams.com, |itigation@hoveywi||iams.com
`
`/Cheryl L. Burbachl
`11/17/2011
`
`Opposer's Notice of Re|iance.pdf ( 140 pages )(6588377 bytes )
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA441743
`ESTTA Tracking number:
`11/17/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91195943
`Plaintiff
`Integrated Management Information, Inc.
`CHERYL L BURBACH
`HOVEY WILLIAMS LLP
`10801 MASTIN BOULEVARD SUITE 1000, 84 CORPORATE WOODS
`OVERLAND PARK, KS 66210
`UNITED STATES
`clb@hoveywilliams.com, litigation@hoveywilliams.com
`Plaintiff's Notice of Reliance
`Cheryl L. Burbach
`clb@hoveywilliams.com, litigation@hoveywilliams.com
`/Cheryl L. Burbach/
`11/17/2011
`Opposer's Notice of Reliance.pdf ( 140 pages )(6588377 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
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Opposition No. 91195943
`
`Integrated Management Information, Inc.
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`Opposer,
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`v.
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`
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`Frank Barrie
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`
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`
`
`Applicant.
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`
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`
`
`
`
`OPPOSER INTEGRATED MANAGEMENT INFORMATION, INC.’S
`NOTICE OF RELIANCE
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`Opposer Integrated Management Information, Inc. (“Opposer”) notifies the Trademark
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`Trial and Appeal Board Applicant Frank Barrie (“Applicant”), pursuant to 37 C.F.R. § 2.120 and
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`37 C.F.R. § 2.122, of its intent to make of record the following documents in connection with
`
`this opposition and are attached hereto:
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`
`
`
`
`Exhibit A.
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`Excerpts (specified below) from the discovery deposition of Frank Barrie
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`with selected exhibits, dated June 30, 2011.
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`Pages: Lines
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`Pages: Lines
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`Pages: Lines
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`21: 15 – 22:13
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`34: 13-25 – 35: 1-6
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`97: 7 – 98: 5
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`28: 10-20
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`41: 1-25 – 42: 1-16
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`102: 7-13
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`28: 21 – 29:19
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`65: 10-25 – 67: 17
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`108: 15-25
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`30: 1-12
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`33: 11-15
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`71: 6-22
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`116: 15-25
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`86: 8 – 87: 19
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`134: 17 – 137: 12
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`

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`Respectfully Submitted,
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`
`
`
`
`
`
`/s/ Cheryl L. Burbach
`Cheryl L. Burbach
`HOVEY WILLIAMS LLP
`10801 Mastin Boulevard, Suite 1000
`Overland Park, KS 66210
`Phone: 913-647-9050
`Fax: 913-647-9057
`Email: clb@hoveywilliams.com
`
`Attorneys for Opposer
`Integrated Management Information, Inc.
`
`
`
`CERTIFICATE OF FILING
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`Dated: November 17, 2011
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`I  hereby  certify  that  the  foregoing  is  being  filed  electronically  with  the  United  States 
`Patent and Trademark Office ‐ Trademark Trial and Appeal Board.   
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`/s/ Cheryl L. Burbach
` Cheryl L. Burbach
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`CERTIFICATE OF SERVICE
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`I hereby certify that a copy of the foregoing Opposer Integrated Managemetn
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`Information Inc.’s Notice of Reliance has been served upon Applicant via U.S. mail, postage
`
`prepaid, on this 17th day of November, 2011 at the following address:
`
`/s/ Cheryl L. Burbach
`
`
`
`
`
`2
`
`Frank W. Barrie
`117 South Pine Avenue
`Albany, New York 12208
`
`
`
`
`
`
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` 
`
`

`
`Exhibit A
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
`
`_.
`
`..
`
`_.
`
`._
`
`.....
`
`..
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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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`.... X
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`INTEGRATED MANAGEMENT INFORMATION,
`
`INC.,
`
`Opposer,
`
`Opposition No.
`91195943
`
`Serial No.
`77/883,973
`
`—against«
`
`FRANK BARRIE,
`
`
`
`
`
`
`
`
`
`
`_
`..
`....
`_.
`_.
`_
`..
`_
`..
`._
`_.
`u...
`._
`._
`.. X
`
`
`Applicant.
`
`
`
`EXAMINATION BEFORE TRIAL of FRANK BARRIE,
`
`the Applicant,
`
`taken by the Plaintiff,
`
`pursuant to Notice, held at the offices of
`
`Baymont Inn & Suites, 1606 Central Avenue,
`
`Albany, New York, on June 30, 2011 at 10:04
`
`
`
`
`
`
`
`
`
`
`
`
`a.m. before George Malinowski, a Notary Public
`
`of the State of New York.
`
`
`
`Se-I-depow
`The Evoluflan of Deposition Management
`
`Nationwide Scheduling
`
`Toll Free:
`
`1.800.451.3376
`Toit Free Fax: 1.888.451.3376
`WWW Setdepo Com
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
`
`And I've learned that I have sufficient
`
`knowledge of the subject matter that involved
`
`in.
`
`It's been a learning experience, Cheryl.
`If you look on the website,
`the book
`
`reviews —~ I have only four book reviews
`
`confidence that I can contribute more to this
`
`area of local food advocacy.
`
`The book by —— I
`
`don't want to run on if I'm not responsive, so
`
`
`
`
` F . BARRIE
`
`the content up that I wanted to have.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
` posted, but if you look at the titles and if
` you have the chance to see the reviews —~
`I'm
`learning as I go and I'm gaining more
` 10
` ll
`
`
`
`12
`
`13
`14
`
`
`
`15
`
`16
`
`Q
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`That's okay. You're the sole operator
`
`and it's your intention to hire or recruit
`
`either employees or other volunteers to help
`you with the website business?
`
`A
`
`It‘s so much easier to edit than it is
`
`
`
`
`
`
`
`
`17
`
`
` 33
`
`
`
`19
`
`
`
`
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`
`
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`
`
`try and try and try and I have found two
` 24
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` 25 willing souls.
`
`20
`21
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`22
`23
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`to write. And I keep trying to persuade
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`friends to write restaurant reviews of
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`farm—to—table restaurants.
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`I even offered to
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`subsidize the meal with checks of $50 and I
`
`
`
`Nationwide Scheduling
`
`Toll Free:
`
`1.800.451.3376 .
`Toli Free Fax: 1.888.451.3376
`WWW SetdepO COm
`
`The Evolution of Deposiflon Management
`
`

`
`Frank Barrie
`
`2011
`June 30,
`
`
`
`F . BARRIE
`
`
`
`And just yesterday I put up a restaurant
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`review,
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`this is great, of a restaurant in
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`Halifax, Nova Scotia called Chives and this is
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`a very good friend who is on vacation in Nova
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`Scotia and she actually dined at a wonderful
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`farm—to~table restaurant and wrote a review.
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`So at this point that's the most that
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`I've accomplished is this friend Linda Warden.
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`10
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`l2
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`13
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`l'7'
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`l8
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`2l
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`22
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`23
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` ll
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`14
`15
`16
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` 19
` 20
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`24
`25
`is going to write a review of a restaurant in
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`And then a very bright son of a good friend,
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`who has an easy time using words, Ethan
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`Bennett who is out
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`in your state. Well, next
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`door, Missouri.
`
`Q
`
`A
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`I live in Missouri.
`
`Oh, good. He's in St. Louis. He's in
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`the PHD program and history at Washington
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`University. And he's always been able to use
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`language clearly and he enjoys writing.
`
`He
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`usually writes about his historical subjects.
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`But Ethan has been writing reviews, restaurant
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`reviews. And I subsidize his meals, I'll give
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`Ethan $50 for every meal he wants to write
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`about.
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`And he's written reviews of
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`restaurants in St. Louis.
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`And this weekend he
`
`
`
`Nationwide Scheduiing
`Toll Free:
`1.800.451.3376
`Toll Free Fax: 1.888.451.3376
`www.setdepo.com
`
`sefdepo“
`
`The Evolution of Deposifian Management
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
`
`Maybe it is.
`
`F . BARRIE
`
`Q
`
`Actually,
`
`I think I see it in paragraph
`
`
`
`
`three,
`there is midway through it says,
`"This
` site will also have areas for and the number
`
`~~ third one is review of books,
`literature,
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`
`
`
`
`
`11
` 12
` 33
`
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`films, etcetera, which promote local,
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`sustainable, organic agriculture."
`
`A
`
`Thank you.
`
`10
`
`14
`
`if you
`I can see,
`Also in paragraph two,
`Q
`look at the first sentence, it talks about the
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`foods that are produced in a sustainable,
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`healthy way or 'organically” grown?
`
`A
`
`You‘re right.
`
`By the time this mission
`
`35
`l6
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`18
`19
`
`20
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`2].
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`22
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`statement got posted, it had become clearer in
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`my mind organic is something to stress.
`
`Q
`
`If I understand correctly, your mission
`
`is to support local and organic grown produce
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`and livestock;
`
`is that correct?
`
`A
`
`Q
`
`Right.
`
`I'd like to redirect you a little bit
`
`and keep on sort of a path I had mapped out
`
`about
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`the trademark about
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`
`
`17-
`
`
`
`
`
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` 23
` 24
`knowwhereyourfoodcomesfrom.com. You talked
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`25
`about how you selected the mark. Before
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`Se-I-depom
`The Evoiufion of Deposition Management
`
`Nationwide Scheciufing
`
`Toll Free:
`
`1.800.451.3376
`TOH Free Fax: 1.888.451.3376
`WWW Setd epo COm
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
`
`F . BARRIE
`
`use?
`
`
`
`A
`
`No.
`
`15.
`
`available for use or registration?
`
`I didn't. And the idea of getting a
`No,
`A
`trademark for the mark, it evolved as I was
`
`
`
`
`
`developing the mark, if you know what
`
`I mean.
`
`
`
`adopting that trademark, did you do any sort
` of search or investigation to determine
`
` whether that mark or any similar mark was in
`
` use?
`
`
`A
`No,
`I didn't.
`
`
`Q
`Did you ask anybody or cause anybody
` else to do a search or any investigation to
`
`find out if the mark or a similar mark was in
`
`
` 10
` ll
`
` 12
`
`Q
`Did you,
`I think you probably answered,
`
`
`but did you at any point visit the United
`13
`14. States Patent and Trademark Office,
`to
`
`
`15
`determine whether or not
`the mark was
`
`
`
`
`
`
`
`
`37
`18
`
`39
`
`20
`
`21
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`22
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`Q
`
`A
`
`What do you mean by that?
`
`When I saw how wonderful
`
`the mark was
`
`that Cathy Sikule, her business, Brownstone
`
`
`
`23 Graphics in Albany came up with, it was really
`24' her worker, Laura McEaney, she‘s no longer on
`
`25 Ms. Sikule's staff, she left last December.
`
`
`
`
`
`
`
`-
`
`Sefdepow
`The Evolution ofDeposition Management
`
`Nationwide Scheduling
`
`Toli Free:
`
`1.800.451.3376
`Ton Free Fax: 1.888.451.3376
`WWW Setdepo CO m
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
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`was,
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`I thought ~- it occurred to me, it's
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`important to have a branding, something that
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`logo.
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`10
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`11
`l2
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`33
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`14
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`17
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`18
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`19
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`23
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`in the universe.
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`Q
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`Did you prepare and file the application
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`yourself?
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`Yes. Yeah,
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`I didn't want to start
`
`spending a lot of money.
`
`I thought
`
`I had the
`
`ability to read and think and the legal
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`background,
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`that I should be able to do it.
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`Though,
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`I know the law has become so
`
`specialized and it's remarkable how
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`specialized it's all become. But I thought I
`
`would be able to work through the process.
`
`So I didn't take any
`filing the application.
`steps to see what else was floating out there
`
`
` F. BARRIE
`
`But she was the one who developed the
` particular mark that I'm seeking to get
`
`trademarked. And when I saw how wonderful it
`
`
`
`
`
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`you could develop and I should get a trademark
`
`
` over this wonderful
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`
`
`So at that point I just looked into
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`35' A
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` 16
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`20
` 21
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` 22
`
`Q
`I'd ask you to now look at Exhibit 2.
`
`
` 24
` 25 If you would look at it and let me know
`
`
`Yes.
`
`The Evoiuffon ofbeposflfon Management
`
`Nationwide Scheduling
`
`Tel! Free:
`
`1.800.451.3376
`Toll Free Fax: 1.888.451.3376
`WWW Setdepg CO m
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
` F. BARRIE
`
`
`
`that they can lead a clean and healthy life."
`
`A
`
`Q
`
`Right.
`
`It's promoting public awareness of
`
`shopping locally?
`
`A
`
`Q
`
`Right.
`
`Promoting public awareness of the need
`
`for sustaining local agriculture.
`
`Do you see
`
`
`
`
`
`
`
`
`
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`
`
`
`
` 10
`Yes.
`11
`
`
`
`Do you recall if you added the words
` 12'
`
`ustaining local agriculture?
`
`
`
`
`
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`
`
`
`
`
`
`
`17
`
` 18
`
`19
`sources.
`Do you see that?
`
`
` 20
`
`Yes.
`
`
`I'll represent to you that my copy local
`
`
`
` 23 wondering maybe if you're responsible for
`
` 24
`
`25'
`
`
`A
`Yes.
`
`
`that?
`
`
`
`A Q s
`
`A
`
`Yeah,
`
`the idea of local agriculture and
`
`sustaining. Yeah,
`words.
`
`that could have been my
`
`
`
`Q
`
`Then it says finally promoting the goods
`
`and services of others by providing a website
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`at which users can link to local agriculture
`
`A Q
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`agriculture sources is in red and I'm
`
`adding those words?
`
`fd
`Se
`The Evolufion of Deposition Management
`
`“
`
`0
`
`use
`
`T if F Nat'°”"fi§3§§'§ld§§3§
`TOM Free Fax: 1.888.451.3376
`WWW Setdepo Co m
`
`.
`
`.
`
`.
`
`2
`
`3
`
`4
`
`l3
`
`14
`
`l5
`
`Jfi
`
`21
`
`22
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
`
`trademark.
`
`When I'm referring to your trademark,
`
`I'm referring to the trademark which is the
`
`subject of application serial number 77883973.
`
`That way I don‘t keep falling over my words.
`
` A Sure.
`
`Q
`
`Are you currently offering services to
`
`promote health and environmental awareness
`
`within people so they can lead a clean and
`
`A Q
`
`promoting up public awareness of shopping
`
`locally, are you currently offering those
`
`services in connection with your mark?
`
`Can the same be said for the third and
`
`A Q
`
`fourth description of services, promoting
`
`l-41
`
`15
`
`36
`
`l8
`
`
` F. BARRIE
`
`
`Q
`Promoting health and environmental
`
`
`awareness within people so they can lead a
` clean and healthy life. Are those services
`
`
`
`that are currently being offered in connection
` with the know where »— I should just say your
`
`
`
`
`
` 10
`
`
`
`31
`12
`
`
`13
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`
`
`
`
`
`
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`healthy life in connection with your mark?
` 17
`Yes.
`
`
`As far as the second description,
`
`
`19
`
` 20
`
` 21
` 22
`Yes.
`
`23
`
` 24
`
`
` 25 public awareness of the need for sustaining
`
`
`Se-fdepow
`The Evofufion of Deposlfian Managemeni
`
`Nationwide Scheduling
`
`Toli Free:
`
`1.800.451.3376
`Ton Free Fax: 1.888.451.3376
`WWW Setdep0 CO m
`
`

`
`
`
`Frank Barrie June 30, 2011
`
`I thought we that's a very good
`
`
`
`
`A Q
`
`A
`
`question.
`
`I thought it would be good to
`
`protect from having someone else use my mark
`
`since I thought it was a real accomplishment.
`
`It's just such a wonderful mark.
`
`Q
`
`Why is it important to you to preclude
`
`someone else from being able to use your mark?
`
`A
`
`Q
`
`Because it's my mark; right?
`
`Right.
`
`I developed it through the
`And you know,
`A
`use of friends, professionals, who put time
`
`and effort into it.
`
`Q
`
`What is the function of your trademark?
`
`The trademark brands and identifies the
`
`10
`
`l3
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`14
`
`15
`
`15
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`17
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`13
`19
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`20
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`
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` F. BARRIE
`
`local agriculture and promoting the goods and
`services of others by providing a website at
`
`
` which users can link to local agriculture
`
`
` sources?
`
` Yes.
`
`Why did you decide to file a federal
`trademark application for your mark?
`
`
`
`
`
`
`
`
`11
`
` 12
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`21
`
`_A
` 22
`
`
`23 website.
`
`24
`
`
`Q
`Does the trademark distinguish you from
`
` 25 others who may be offering similar or related
`
`
`Sefdepow
`The Evolution of Deposifion Managemenf
`
`Nationwide Scheduting
`
`Toll Free:
`
`1.800.451.3376
`Tofl Free Fax: 1.888.451.3376
`WWW Setdepo Com
`
`

`
`Frank: Barrie
`
`June 30, 2011
`
`
`
`industrial agriculture.
`
`F . BARRIE
`
`
`
`
`
`
`Can you explain what you mean by that?
`
`the website,
`
`is to promote local
`
`The three big areas of
`
`
`Q
`Well, my website and the purpose of the
` A
`
` entity,
`
`
` agriculture.
`
`
`information on the website are listings of
`
`
`farmers markets, which are selling the produce
`
`
` of family farms located locally to the market.
`
`The second big area on the website is
` 10
`
` ii
`
`
`
`
`
`
`EA
`
`
` 35
`
` 16
`
`17
`
`
`
`
`18.
` 19
`
` 20
`
` 21
`
`
`
`
`
`your community where you're living and my
`24
`
`
`understanding of IMI is more of a focus on
` 25
`
`
`the directory of community supported
`
`l2
`
`13
`
`I have pages for every
`agriculture farms.
`state and each of the Canadian provinces,
`
`except for the Yukon I think and Newfoundland.
`
`And those farms are local farms where people
`in the community buy a share in the farm‘s
`
`produce.
`
`And the third big area of information on
`
`the website are the listings of farm—to—table
`
`restaurants, which are restaurants that show a
`
`commitment to using food that is locally
`
`22
`
`23
`
`grown.
`
`So local agriculture is agriculture near
`
`
`
`' Sefdepow
`The Evoluffan ofbepaslfion Managemenf
`
`Nationwide Schedui-Eng
`
`Ton Free:
`
`1.800.451.3376
`Toll Free Fax: 1.888.451.3376
`wwwisetd epo I COm
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
`
`
`F. BARRIE
`
`
`
`food safety.
`
`
`
`
`
`
`
`
`
`
` being used very widely in the market place
`
`now. There is a lot of use of green language
`by the most extraordinary kinds of entities.
`
`Q
`
`Your website promotes local agriculture,
`
`does it also promote a sustainable
`
`agriculture?
`
`A
`
`Well,
`
`the words are a little —— are
`
`
`
`
`ll
`
`
`
`
`
`10
`
`12
`
`13
`
`You know,
`
`industrial agriculture --
`
`Q
`
`Your website, does it promote
`
`sustainable agriculture?
`
`A
`
`I would say so.
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`You talked earlier it also encourages
`Q
`organic agricultural practices; correct?
`
`A Q
`
`
`
`term of what you used local agriculture?
`
`.A
`
`No,
`
`I'm not aware of their regulations
`
`in that area.
`
`I will say I‘m not that
`
`
`
`3A-
` 15
`
` 16 Yes.
`
`17
`
`
`Do you have an understanding as to
`
`
`18 whether the United States Department of
`
` 19 Agriculture has an order for food products or
`
`agricultural products to qualify as to the
` 20
`
` 2l_
` 22
`
`
`23
`24
`
`
`
`familiar with the regulations of the USDA.
`
`I've begun to study and educate myself
`
`
`25
`
`Se‘!-depoe
`‘me Evaiufion of Deposition Management
`
`I
`
`Nationwide Scheduling
`
`Toll Free:
`
`1.800.451.3376
`Toli Free Fax: 1.888.451.3376
`WWW setdep0 CO m
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
`
`F . BARRIE
`
`
`
`
`
`I don't «- it gives you a funny
`countries,
`feeling. What exhibit?
`
`
`
`Q
`
`A
`
`Q
`
`Q
`
`A
`
`Exhibit 6.
`
`Okay, got it.
`
`Take a moment to look at it and refresh
`
`
`
`
`
`Well, when I started thinking about
`
`doing the website,
`
`I had enough knowledge that
`
`It
`
`this section of New York State and we started
`
`this newspaper.
`
`I think we printed —— I got
`
`1
`
`2
`3
`
`4
`
`5
`
`6
`
`10
`
`ll
`
`IL2
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`I9
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`
`
` your recollection if you've seen this document
`before?
` I have.
` Yes,
`
`What is Exhibit 6?
`
`
`
`
`I knew I should do something like a business
`
` plan to organize my thinking and that was the
`
`
`
`purpose of this document.
`The only other time
`
`
`I ever did anything like this, starting a
`
` business, was with some friends in the 1980s,
`
`it didn‘t really work out. But we did print a
`
`
`
` newspaper called the Upstate Legal Record.
`
` was in the prewinternet age when lawyers
`
` didn't have easy access to court decisions and
`
`
`
`we were covering all the court decisions in
`
`
`
`
`
`
`I got out of it
`out, when I became a judge,
`
`
`Z Sefdepow
`"the Evolution afneposifion Management
`
`Nationwide Scheduiing
`
`Ton Free:
`
`1.800.451.3376
`Toll Free Fax: 1.888.451.3376
`WWW _ Setdepo I CO m
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`
`
`and didn't really make any money.
`
`
`
`
`
`I made enough money,
`
`I think $3,000,
`
`to
`
`buy a piano,
`
`they bought me out for that. But
`
`other than that, my friend thought this would
`
`a thousand subscribers and they sold
`
`advertising,
`
`too.
`
`But they had people working, selling
`
`adds and what we did was read the court cases
`
`and digest the decisions.
`
`So I knew to do a business plan and
`
`35
`
`that's —— in fact I probably pulled out,
`
`
` F . BARRIE
`
`
`
`
`
`really become a humdinger of a business. But
`
`
` when we did that, we did a business plan. We
`sold subscriptions to the newspaper and we had
`
`
`
`
` 10
`
` 11
`
`
` 12
`
`
` 13
` 14
`
`
`
` 13
`
`
` 17
`
`l8
`
`
`
` 19
`
`
`
`
`
`
`
`
`
`to potential investors or banks or anyone
`
` 23 else?
`24
`
`
`A
`No.
`I don't even know if —~ somebody
`
`
`
`
`must have read it.
`I don't even know if my
`
`
`though I don't have it,
`
`the business plan for
`
`the Upstate Legal Record,
`
`I don't know where
`
`it might be, but when I did this,
`
`I probably
`
`would have fished around in the musty old
`
`attic to find it.
`
`So that's what this is.
`
`Q
`
`Was this business plan ever distributed
`
`20
`
`21
`
`22
`
`25
`
`
`
`
`
`The Evolurian of Deposition Management
`
`Nafionwkkzschedunng
`
`Ton Free:
`
`1.800.451.3376
`TOH Free Fax: 1.888.451.3376
`WW W Setd e :30 CO m
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`son read it.
`
`F. BARRIE
`
`Q
`
`Was this document just created so you
`
`could internally organize your plan going
`
`forward?
`
`A
`
`Yes. And then I did send it to —— my
`
`piano tuner said, when I told him what I was
`
`doing, he said I know a lawyer who might be
`
`interested in what you're doing. And I think
`
`I sent it to him and he read it and he said
`
`you need to describe what your revenue is
`
`going to be better.
`
`But it was —~ no,
`
`I really didn't
`
`distribute it or send it around much.
`
`Q
`
`What year was this document created,
`
`according to the front page?
`
`A
`
`Q
`
`It would be 2009.
`
`At
`
`the top area it says Know About Your
`
`Food,
`
`Inc.
`
`Do you see that?
`
`A
`
`Q
`
`Right.
`
`Was
`
`the company ever incorporated under
`
`that name?
`
`A
`
`Q
`
`No.
`
`It sounds like you might have used a
`
`business plan from your first business as sort
`
`
`
`Se1'dep0==~
`The Evoiution of Deposifion Manage.-men?
`
`Nationwide Scheduling
`
`Ton Free:
`
`1.800.451.3376
`Toli Free Fax: 1.888.451.3376
`WWW I setd e DO _ Com
`
`

`
`Frank Barrie
`
`June 30, 201i
`
`Bates number them.
`
`F. BARRIE
`
`It's very good. Okay, 39.
`
`Are you on page 3 of your business plan?
`
`Page 3, yes.
`
`You stated under Roman numeral III the
`
`first sentence says
`
`knowwhereyourfoodcomesfrom.com will be a
`
`website designed to promote small, sustainable
`
`local agriculture by encouraging customers to
`
`eat locally grown food which are produced in a
`
`in a sustainable and healthy way or
`
`organically grown.
`
`A
`
`Consumers, not customers,
`
`though.
`
`By
`
`encouraging consumers to eat.
`
`Q
`
`Oh,
`
`I'm sorry, consumers, correct.
`
`To
`
`eat locally grown foods which are produced in
`
`a sustainable and healthy way or organically
`
`grown.
`
`A
`
`Q
`
`A
`
`Q
`
`Right.
`
`Is that still an accurate description?
`
`Yes, you know it is.
`
`Then in the next paragraph it says you
`
`have a long range plan.
`
`Then you listed
`
`approximately twelve sort of measures that you
`
`10
`
`ll
`
`12
`
`13
`
`l4
`
`l5
`
`16
`
`17
`
`l8
`
`l9
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`sefdepo“
`
`Ihe Evolution ofbeposifion Management
`
`Nationwide Scheduling
`TOH Free:
`1.800.451.3376
`TbH Free Fax: 1.888 451.3376
`wwwsemmpotom
`
`

`
`Frank Barrie
`
`
`June 30, 2011
`
`F. BARRIE
`
`it's more of a way ~~ it's just too much, it's
`
`a very different kind of model, business.
`
`Q
`
`We're going to switch gears a little bit
`
`now and actually,
`
`let‘s take a step away from
`
`the exhibits for a minute here.
`
`Do you recall what
`
`the earliest date was
`
`that you began using
`
`knowwhereyourfoodcomesfrom.com in commerce?
`
`A
`
`Did I answer that in the answers to the
`
`interrogatories?
`
`That would be better than
`
`off the top of my head.
`
`Q
`
`A
`
`Q
`
`Sure,
`
`let me see if I can find it here.
`
`Yes.
`
`Yes,
`
`interrogatories.
`
`By the way,
`
`is
`
`the exhibit is one of the new ones,
`
`Exhibit
`
`16.
`
`A
`
`Q
`
`Okay,
`
`I have that.
`
`And it's of interrogatory six on page 3.
`
`The question was, please state the date on
`
`which applicant first used in commerce the
`
`words Know Where Your Food Comes From
`
`including, but not limited to use as part of
`
`applicant's mark.
`
`Do you see that?
`
`A
`
`Yes.
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`1'7
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`seidepo“
`
`The Evolution of Deposiflon Management
`
`Nationwide Scheduling
`TQM Free:
`1.800.451.3376
`TON Free Fax: 1.888.451.3376
`www.setdepo.com
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`F. BARRIE
`
`Q
`
`It sounds like from this response that
`
`you first began using the mark in March of
`
`2010?
`
`A
`
`Well, using it in commerce on the
`
`website, you know, it was used when we
`
`developed the logo which would have been in
`
`December of 2GO9 when I m~ no,
`
`that was the
`
`date of the application for the trademark.
`
`So
`
`the fall of 2009 as it was ~w as the logo was
`
`developed,
`
`the words were used in the logo.
`
`Q
`
`A
`
`Okay.
`
`But actually, for someone in the general
`
`public to see it would have been when the
`
`website went live.
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`When was that?
`
`This date here.
`
`March 11th, 2010?
`
`Yeah.
`
`Last sentence in that, while we're here,
`
`you have a statement that says "consequently,
`
`a persuasive argument may be made if the words
`
`are not used in commerce per se by the
`
`applicant." What do you mean by that?
`
`A
`
`Well, because there is no revenues,
`
`is
`
`
`
`Sefdepaw
`The Evalufion of Deposition Management
`
`Nafionmfldescheduhng
`
`Ton Free:
`
`1.800.451.3376
`Tb“ Free Fax: 1.888.451.3376
`WWW Setd e p O CO m
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`F. BARRIE
`
`A
`
`That's true. When you lick on food
`
`news, you come up with a page which has just a
`
`couple sentences under the heading of each
`
`article, yeah, and I would have written all
`
`these pieces.
`
`Q
`
`If I understand correctly, you said that
`
`the articles that you've posted have been
`
`proprietary or were written by you?
`
`A
`
`Q
`
`Yes,
`
`I‘Ve written them.
`
`Other than your website, do you deliver
`
`your information through any other channel?
`
`A
`
`Q
`
`No.
`
`For instance,
`
`let me be more specific.
`
`Do you use any social media sites?
`
`A
`
`I'm very untechy and I do have a
`
`Facebook page.
`
`Q
`
`Yeah,
`
`if you look at exhibit 9,
`
`I think
`
`that might be helpful at this point.
`
`A
`
`I do have a Facebook page to protect the
`
`name knowwhereyourfoodcomesfrom.com.
`
`Q
`
`Does exhibit
`
`9 appear to be an accurate
`
`copy of your Facebook page?
`
`A
`
`Q
`
`Yes.
`
`Have you actually used this Facebook
`
`
`
`' Sefdepow
`The Evofufion of Deposfiion Manage-men!
`
`Nafionwkkascheduhng
`
`Toll Free:
`
`1.800.451.3376
`TOH Free Fax: 1.888.451.3376
`WWW Setdepo Com
`
`

`
`Frank Barrie
`
`
`June 30, 2011
`
`page to deliver information?
`
`F. BARRIE
`
`A
`
`No,
`
`just as a link to the website.
`
`So
`
`if someone is on Facebook they could link to
`
`the website itself.
`
`Q
`
`Have you used your trademark to deliver
`
`your services or provide your information
`
`services,
`
`is there any other channel, for
`
`instance, have you ever perhaps had a table at
`
`a farmers market?
`
`A
`
`Q
`
`No, never have done that.
`
`Have you ever attended a trade show
`
`where you had a booth?
`
`A
`
`Q
`
`No.
`
`Do you intend to use either of those
`
`channels at some point?
`
`A
`
`It's not
`
`in my intentions now,
`
`I haven‘t
`
`really thought of that.
`
`Q
`
`A
`
`Q
`
`I'm not trying to give you ideas.
`
`Right.
`
`How about your articles, do you ever
`
`publish your articles in the publications of
`
`others?
`
`A
`
`No.
`
`I think I had a request
`
`from third
`
`parties on that article describing the lawsuit
`
`10
`
`11
`
`12
`
`13
`
`14'
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`seidepo“
`
`The Evolution of Deposiiion Management
`
`Nationwide Scheduling
`ToH Free:
`1.800.451.3376
`ToH Free Fax: 1.888.451.3376
`www.setdepo.com
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`F . BARRIE
`
`people, I‘ll send them an e~mail and say we've
`
`posted an article on this topic and you're
`
`mentioned in it.
`
`So in a way that's promoting
`
`the website,
`
`they'd be curious to see what was
`
`written about
`
`them.
`
`Q
`
`A
`
`Do you have an ewmail distribution list?
`
`I don't really,
`
`I do —~
`
`I have about
`
`ten
`
`e—mail addresses of people who have sent me
`
`e~mails that say things like I
`
`love your
`
`website, your website is terrific and I‘ll
`
`note their name. And I do have a file folder
`
`and it has about ten names in it.
`
`When I did this article on the lawsuit
`
`against Mont Santo on the issue of transgenic
`
`seed that's polluting the fields of organic
`
`farmers,
`
`I did get responses from people who
`
`read that who said they like the article and
`
`they might be included. But it's only like a
`
`list of about ten to twenty e—mail addresses.
`
`I haven't really had the time to do
`
`that, I've been so busy just inputting
`
`information to develop content. As
`
`I say the
`
`directories are almost done, but I still
`
`haven't finished the farmers markets directory
`
`
`
`Sefdepos"
`The Evofufion of Deposifion Mcmcrgemeni
`
`Nafionwkkzschedufing
`
`Ton Free:
`
`1.800.451.3376
`TOH Free Fax: 1.888.451.3376
`WWW Setdepo Com
`
`

`
`Frank Barrie
`
`_
`
`June 30, 2011
`
`F. BARRIE
`
`Q
`
`Any sort of displays that would bear
`
`that trademark?
`
`A
`
`Q
`
`No.
`
`Do other people have permission to use
`
`your logo?
`
`A
`
`No.
`
`Someone did ask me for a bumper
`
`sticker, it was someone down in Georgia.
`
`I
`
`think I listed a CSA farm that she operated.
`
`She said could you send me a bumper sticker so
`
`I
`
`Q
`
`A
`
`thought whoa.
`
`Do you have bumper stickers?
`
`I don't do them, but I should probably,
`
`but no,
`
`I haven't.
`
`Q
`
`Does the trademark appear on any sort of
`
`letterhead?
`
`A
`
`I do have a letterhead.
`
`I have it on a
`
`letterhead.
`
`Q
`
`Q
`
`A
`
`How about on business cards?
`
`And I have it on my business card.
`
`Does the trademark appear on any other?
`
`The only thing I have it on is I have a
`
`postcard which talks about
`
`farm—to—table
`
`dining and the purpose of the website.
`
`It's a
`
`postcard.
`
`
`
`Se-fdepow
`The Evolution of Deposifion Management
`
`Nationwide Scheduling
`
`Toll Free:
`
`1.800.451.3376
`Toll Free Fax: 1.888.451.3376
`WWW Setd e p 0 co m
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`F . BARRIE
`
`that run that platform and I switched over to
`
`her and the website loads really fast now.
`
`It's like night and day.
`
`I was down only once and it was because
`
`they got hit,
`
`the lightning storm was coming
`
`through and they had a little trouble, so that
`
`was a good move and the website has been
`
`working very well on their servers.
`
`So they
`
`replaced —— you'll see invoices from the
`
`earlier company, Network Solutions, which is
`
`no longer providing any services to me.
`
`Q
`
`A
`
`Q
`
`I think I'm done with that exhibit.
`
`Okay.
`
`I'm going to talk a little bit about
`
`the
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`15
`
`16:
`
`typical consumer that you intend to target or
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`if you could maybe explain who you're
`
`typically trying to reach with your website?
`
`A
`
`It would be someone who's interested in
`
`knowing where their food comes from,
`
`that they
`
`want to eat food that is grown locally,
`
`so
`
`it's not transported hundreds of thousands of
`
`miles.
`
`The carbon footprint isn't huge and
`
`has a concern for preserving farmland and
`
`local family farms.
`
`
`
`sefdepo"
`
`The Evolution of Deposition Manage-men?
`
`Nafionwkkescheduhng
`TOH Free:
`1.800.451.3376
`T0||Free Fax: 1.888.451.3376
`www.setdepo.com
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`F. BARRIE
`
`tags and meta names are words that websites
`
`put into their source codes,
`
`so that when
`
`people are searching online and use those
`
`words, it will then draw that website to the
`
`organic search results. There are other ways
`
`that happens,
`
`too, but that's one of the ways.
`
`A
`
`Q
`
`Okay.
`
`If you look at the part that's
`
`highlighted or shadowed in the black and white
`
`copies where it says meta names key words,
`
`those are the keywords that are meta tags that
`
`basically are words that when consumers type
`
`in those words,
`
`that would trigger your
`
`website.
`
`A
`
`Q
`
`Okay.
`
`I will point out to you that the words
`
`"Where Food Comes From", which are separated
`
`by commas, but also in exact order of my
`
`client mark shows up.
`
`I'm wondering if you
`
`were aware of that before today?
`
`A
`
`Q
`
`A
`
`Q
`
`Which page were you on here?
`
`The very first page of Exhibit 17.
`
`Okay,
`
`I'm on that page.
`
`The highlighted part where it says meta
`
`
`
`Sefdepgw
`The Evolution of Deposflion Management
`
`Nafionwkkaschedufing
`
`Toll Free:
`
`1.800.451.3376
`TOH Free Fax: 1.888.451.3376
`WWW SE3td€DO COITI
`
`

`
`Frank Barrie
`
`June 30, 2011
`
`F. BARRIE
`
`name equals.
`
`Are you on Exhibit 18?
`
`No, Exhibit 17.
`
`I'm not there.
`
`Okay, I'll wait.
`
`Okay,
`
`I'm on 17 and on the first page
`
`keywords and it shows ~~
`
`Q
`
`Right,
`
`there is a shadowed box where I
`
`highlighted?
`
`A
`
`Right. Where food comes from,
`
`local
`
`sustainable agriculture.
`
`Q
`
`I wonder if you were aware if those were
`
`the meta tags or keywords that were on your
`
`website?
`
`A
`
`No,
`
`I didn't know that, but it makes
`
`sense, doesn‘t it? It's what
`
`the websites
`
`about.
`
`Q
`
`When I search where food comes from, it
`
`would pull up your website, wouldn't it,
`
`whereas it doesn't say know where your food
`
`comes from?
`
`A
`
`Well, it would probably come up first if
`
`you do know where your food comes from.
`
`Q
`
`Well,
`
`I don't know --
`
`
`
`Sefdepow
`The Evolution ofbeposffion Managernenf
`
`Nationwide Scheduling
`
`Ton Free:
`
`1.800.451.3376
`ToH Free Fax: 1.888 451.3375
`WWW Setdepo Cam
`
`

`
`Frank Barrie
`June 30, 2011
`
`F. BARRIE
`
`A
`
`No,
`
`I do,
`
`I know that because I've
`
`Googled Know Where Your Food Comes From and it
`
`comes up pretty high.
`
`I don't know where --
`
`really have been focused on getting the
`
`content up and not focusing on this --
`
`Q
`
`Sir,
`
`sir,
`
`I understand that this is
`
`something that was done by the website
`
`10
`
`ll
`
`12
`
`13
`
`14
`
`:5"
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`developer based on your testimony today.
`
`I
`
`didn't know that beforehand,
`
`so I guess I just
`
`wanted to find out, what your knowledge was
`
`about
`
`the fact that my client's mark
`
`basically, verbatim, are the first four words
`
`in your meta tag in order.
`
`A
`
`Q
`
`Oh, with the commas in between?
`
`Right.
`
`I didn't know if you had an
`
`understanding as to why if that was one of the
`
`reasons perhaps your website shows up higher
`
`in the rankings than my Client's website?
`
`A
`
`No,
`
`I don't have any knowledge of this
`
`one way or the other how the rankings appear.
`
`But there is traffic from my doing the farmers
`
`markets, especially this time of year.
`
`Q
`
`Are you saying that because y

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