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
`
`
`
`91203596
`
`Plaintiff
`
`Outer Banks Sporting Events Inc.
`IAN D TITLEY
`SCHRODER FIDLOW PLC
`1901 E FRANKLIN STREET, SUITE 107
`RICHMOND, VA 23233
`UNITED STATES
`
`idt@gschroderfid|ow.com
`
`Reply In Support of Motion
`
`Ian D Tltley
`
`idt@schroderfid|ow com
`
`/ Ian D. Titleyl
`02/20/2013
`
`Reply Brief.pdf (6 pages )(452208 bytes )
`Ex A.pdf ( 2 pages )(70915 bytes )
`Ex B.pdf ( 15 pages )(16972173 bytes)
`Ex C.pdf ( 16 pages )(4191955 bytes)
`Ex D.pdf ( 2 pages )(644493 bytes)
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA522683
`ESTTA Tracking number:
`02/20/2013
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91203596
`Plaintiff
`Outer Banks Sporting Events, Inc.
`IAN D TITLEY
`SCHRODER FIDLOW PLC
`1901 E FRANKLIN STREET , SUITE 107
`RICHMOND, VA 23233
`UNITED STATES
`idt@gschroderfidlow.com
`Reply in Support of Motion
`Ian D. Titley
`idt@schroderfidlow.com
`/Ian D. Titley/
`02/20/2013
`Reply Brief.pdf ( 6 pages )(452208 bytes )
`Ex A.pdf ( 2 pages )(70915 bytes )
`Ex B.pdf ( 15 pages )(16972173 bytes )
`Ex C.pdf ( 16 pages )(4191955 bytes )
`Ex D.pdf ( 2 pages )(644493 bytes )
`
`

`
`THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Serial No. 85230941
`
`Outer Banks Sporting Events, Inc.,
`a North Carolina corporation
`
`Opposer,
`
`VS.
`
`Finish Strong, LLC
`a North Carolina limited liability company
`
`Applicant
`
`\/[Q/\/%%%/\J\/%
`
`Opposition No. 91203596
`
`OPPOSER’S BRIEF IN REPLY TO APPLICANT’S OPPOSITION TO
`
`OPPOSER’S MOTION FOR SUMMARY JUDGMENT
`
`Opposer Outer Banks Sporting Events, Inc. (“OBSE”) hereby files this its Brief in
`
`Reply to Applicant’s Opposition to Opposer’s Motion for Summary Judgment in the
`
`above referenced case.
`
`The case is well suited for summary judgment.
`
`Both parties rely on the same documents to argue their view of the case. Apart
`
`from Applicant’s self-serving affidavits, the factual record is not in dispute and this case
`
`is ripe for decision.
`
`Clarification of Applicant’s interpretation of the facts.
`
`Applicant claims it created and held the first Outer Banks Triathlon in spring
`
`2008. (Applicant’s Brief in Opposition to Opposer’s Motion for Summary Judgment
`
`(“ABIO”) at 1 and Affidavit of Jason Biggs December 5, 2012, (“Biggs December Aff.”)
`
`1H[ 3, 4.)
`
`

`
`The documents provided by Applicant establish that the spring 2008 event was a
`
`re-appearance of an event that had been previously run by other groups. It was not a new
`
`or original invention or creation of Applicant. (Exhibit A).
`
`Applicant claims it promoted and held a race in summer 2009. ABIO at 2 and
`
`Biggs December Aff. 1] 7. Whatever Applicant’s role was in this race, the summer 2009
`
`event was publicized as the OUTERBANKS SPRINT TRIATHLON (emphasis added)
`
`Exhibit B, not the OUTERBANKS TRIATHLON.
`
`Applicant claims that it established terms regarding “how Opposer was able to use
`
`the mark for promotion of the races” and that it sent these terms to Opposer in a Proposal
`
`Package. ABIO at 2 and Affidavit of Jason Biggs February 7, 2013 (“Biggs February
`
`Aff.”) at M 4, 5. While neither party has produced a signed copy of the 2010 proposal,
`
`the signed copy of the 2011 proposal is of record and for ease of reference is attached as
`
`Exhibit C.
`
`The Biggs February Aff. does not identify which terms Biggs is referring to. Item
`
`3 of the “Client Agrees” section of the proposal states that Opposer will “Use FS Series
`
`logo on all promotional materials and t shirts.” (Exhibit C page FSS000255) This is
`
`clarified in the accompanying email correspondence in which Opposer states “OBSE will
`
`use the FS logo on all sponsor recognition materials, if indeed FS is offering to sponsor
`
`some of their services.” (Exhibit C page FSS0000078) Clearly, “FS logo” means the logo
`
`of Applicant’s company name and Opposer controls whether or not Applicant’s company
`
`logo will be displayed as a sponsor. The paragraph concludes with Opposer agreeing to
`
`list Applicant as an in-kind sponsor because Applicant is providing swim caps.
`
`

`
`Even more telling is a paragraph further down the same page wherei
`
`ga_c]u_es_ts Applicant to include “the OBSA and TRI logo [referring to the OUTER
`
`BANKS TRIATHLON logo] on the TRI registration site/page and in all OB TRI eblasts
`
`and promotionals.” Applicant replies “Not a problem” and the page is initialed by “JSB”
`
`and dated 2/27/2011. (Exhibit C page FSS0000078) The signed document is clear —
`
`Opposer controls Applicant’s “use” of the mark.
`
`It is true Opposer held the Outer Banks Triathlon in 2012, and Opposer denies
`
`this infringed any rights of Applicant. In fact, Applicant has presented no evidence that it
`
`ever objected to Opposer’s use of the mark, despite having full knowledge that Opposer
`
`was holding the event. See Exhibit C page FSS0000079.
`
`ARGUMENTS
`
`To the extent Applicant “used” the OUTER BANKS TRIATHLON mark in 2010
`
`and 2011, it was because Opposer hired Applicant to promote and manage the event, (see
`
`Exhibit C page FSS0000254: “FS Series will promote the event through. . .websites. ..
`
`calendars... emails. . .flyers.”) Applicant was an agent of Opposer and Applicant’s “use”
`
`of the mark inured to the owner, not to the agent. Applicant states on Exhibit C page
`
`FSS0000254 “Our ultimate goal is to be your solution for all your event planning,
`
`promotion, organization, and management needs.” The proposal, which became a signed
`
`contract, refers to the Outer Banks Triathlon as “your event” (meaning Opposer’s event)
`
`multiple times.
`
`The Board may grant summary judgment in spite of Applicant’s affidavit
`
`claiming that it “used Opposer as its local organization to assist with the 2010 and 2011
`
`races.” Biggs February Aff. 113. In Paluh v. HSBC Bank USA 409 F.Supp.2d 178, 189
`
`(W.D.N.Y.) the court explained the following:
`
`

`
`Vague assertions supported only by self-serving statements in the nonmoving
`party's affidavit are insufficient to defeat a properly supported summary judgment
`motion. Coniglio v. Highwood Services, Inc., 495 F.2d 1286, 1292 (2d Cir.), cert.
`denied, 419 U.S. 1022, 95 S.Ct. 498, 42 L.Ed.2d 296 (1974). "The non-moving
`party may not rely on conclusory assertions or unsubstantiated speculation [to
`defeat summary judgment]." Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998).
`Rather, "the non-movant must produce specific facts indicating that a genuine
`factual issue exists." Wright v. Coughlin, 132 F.3d 133, 137 (2d Cir.1998).
`
`The signed 2011 Proposal (attached as Exhibit A to the Notice of Opposition and
`
`the signature pages for which were provided to the Board by Applicant, see Exhibit I
`
`Bates Numbers FSSOOOOO72-80 to App1icant’s Motion for Summary Judgment) controls
`
`the use of the various logos and which entities have control and the risk of loss for the
`
`event. This contract was contemporaneous with the event in question and takes
`
`precedence over Applicant’s February 7"‘, 2013 conclusory affidavit attempting to spin
`
`the facts to its advantage.
`
`Controlling law regarding Applicant’s purported “use” of the mark is described in
`
`Section 1201.03 of the Trademark Manual of Examining Procedure (“TMEP”).
`
`Section 5 of the Trademark Act, 15 U.S.C. 1055, states, in part, as follows:
`
`Where a registered mark or a mark sought to be registered is or may be used
`legitimately by related companies, such use shall inure to the benefit of the
`registrant or applicant for registration, and such use shall not affect the validity of
`such mark or of its registration, provided such mark is not used in such manner as
`to deceive the public.
`
`Section 45 of the Act, 15 U.S.C. 1127, defines "related company" as follows:
`
`The term "related company" means any person whose use of a mark is controlled
`by the owner of the mark with respect to the nature and quality of the goods or
`services on or in connection with which the mark is used.
`
`

`
`Section 1201.03(a) of the TMEP further provides: “The party who controls the
`
`nature and quality of the goods or services on or in connection with which the
`
`mark is used should be set forth as the applicant.”
`
`Applicant’s use is analogous to that of a distributor or an importer of a
`
`product manufactured by another. Applicant provided its timing and event
`
`management services to not-for-profit entities that have been using the Outer
`
`Banks Triathlon to raise money for their causes. Just as an importer does not
`
`acquire trademark rights in the brands that it imports, Applicant does not acquire
`
`trademark rights in the events that it manages for others.
`
`This is further explained in the Trademark Manual of Examining Procedure
`
`at §120l.06(a) where it states:
`
`A distributor, importer, or other distributing agent of the goods of a manufacturer
`or producer does not acquire a right of ownership in the manufacturer’s or
`producer’s mark merely because it moves the goods in trade. See In re Bee Pollen
`fiom Eng. Ltd., 219 USPQ 163 (TTAB 1983); Audioson Vertriebs - GmbH v.
`Kirksaeter Audiosonics, Inc. , 196 USPQ 453 (TTAB 1977); Jean D ’Albret v.
`Henkel-Khasana G.m.b.H., 185 USPQ 317 (TTAB 1975); In re Lettmann, 183
`USPQ 369 (TTAB 1974); Bakker v. Steel Nurse ofAmerica Inc., 176 USPQ 447
`(TTAB 1972). A party that merely distributes goods bearing the mark of a
`manufacturer or producer is neither the owner nor a related-company user of the
`mark.
`
`Even if Applicant acquired any trademark rights by virtue of its “use” of
`
`the mark in 2008 and 2009, it appears the use was on behalf of the Outer Banks
`
`Tri Club. (Exhibit D — listing the Outer Banks Tri Club as the responsible
`
`organization).
`
`

`
`Conclusion
`
`Opposer respectfully requests the Board to find that the evidence establishes that
`
`Applicant does not own exclusive trademark rights in the name OUTERBANKS
`
`TRIATHLON, and to grant Opposer’s motion for summary judgment.
`
`Respectfully Submitted,
`
`By:
`
`Z / %
`
`Ian D. Titley, Esq.
`VSB# 27531
`
`Schroder Fidlow, PLC
`Attorney for Opposer
`1901 E. Franklin St. #107
`
`Richmond, VA 23223
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that a true and correct copy of the foregoing
`Opposer’s Brief In Reply To Applicant’s Opposition To Opposer’s Motion For Summary
`Judgment was served this 20”‘ day of February, 2013 upon Applicant by forwarding said
`copy, via email and first class mail to Anthony J. Biller and David Kalish at the following
`address:
`
`Anthony J. Biller
`David Kalish
`
`Coats & Bennett, PLLC
`
`1400 Crescent Green, Suite 300
`Cary, North Carolina 27518
`abi1ler@coatsandbennett.corn
`dkalish@coatsandbennett.com
`
`Ian
`
`. Titl
`
`

`
`Exhibit A
`
`Exhibit A
`
`

`
`Triathlons - Outer Banks Triathlon Weekend
`
`http://web.archive.org/web/20080111181347/http://fsseries.com/triathlo...
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`Triathlons - Outer Banks Triathlon Weekend
`
`Saturday, April 26, 2008 - 8am
`Sprint and Olympic Triathlon - Manteo, NC
`
`Sunday, April 27, 2008 - 10 am
`Outer Banks Kids Triathlon - Manteo, NC
`
`The Weekend
`
`The Outer Banks Triathlon will make its 2008
`re-appearance with a different format and a weekend full
`of events. The Olympic and Sprint races will take place
`simultaneously on Saturday. The Kids Triathlon will take
`place Sunday morning at the Outer Banks YMCA. The
`weekend will be full of clinics, food, and family activities.
`
`Race Day Information
`
`The Olympic and Sprint Race
`
`The swim will be in Shallowbag Bay on Manteo Waterfront, a sheltered bay off
`Roanoke Sound. The water is salty and has little current. The bike course will use
`the William B. Umstead Bridge and proceed into Mashoes. The run course is an out
`and back, in downtown Manteo. Water stations are provided at the turn around
`point on the bike and on the run. The finish line is across the street from the
`transition area.
`
`The race course revolves around a transition area next to Manteo Waterfront. The
`same transition area will be used for all phases. The transition area will open at
`6am; ALL bikes need to be placed in position before the transition area closes at
`7:45am.
`
`Get Race Updates
`
`Charity
`
`Outer Banks Relief Foundation
`Outer Banks Triathlon Club
`Outer Banks YMCA
`
`Hotels
`
`http://www.outerbanks.org/accommodations/
`
`Distance
`
`FSS000270
`
`

`
`EXHIBIT B
`
`EXHIBIT B
`
`

`
`
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`
`
`
`SPRINT“-WTRIATHLON-.-—
`1000M swm 22K Ema 5K RUN
`8.23.09
`
`Arrival Time: Arrive at event site no later than 5:45 am. EVENT START - 7:00 am. Packet pick up line will close
`at 6:00 am.
`If you are not in line by this time you will not be allowed to get your packet.
`
`Packet Pick-U :
`
`Saturday (8/22) — 3:00 pm — 6:00 pm @
`Outer Banks YMCA 3000 South Croatan Highway Nags Head, NC 27959
`
`Sunday (8/23) - 5:00 am — 6:00 am @ Bonnett Street Beach Access Nags Head, NC 27959
`
`Non-USAT Annual Members:
`race site.
`
`If you have not paid the one day $10.00 USAT fee, be prepared to pay this at the
`
`Parking: There are two main areas to park but if you stay close to the site, we strongly recommend you ride or walk
`to the event. The first lot is the Nags Head Elementary School on S. Wrightsville Avenue. This lot is less than V4 mile
`from the transition area. Once this lot fills you will be asked to park at the Outer Banks YMCA less than ‘/4 mile from the
`transition area. Additional parking will take place at North and South Beach access. Spectators can park at the Outer
`Banks YMCA. PLEASE DO NOTPARK IN ANYLOT THA TI5 NOT LISTED! YOU WILL BE TOWED.
`REMEMBER: IF YOU ARE ON YOUR BIKE AT ANY TIME AT ANY USAT EVENT YOUR HELMET MUST BE
`FASTENED.
`
`Body Marking: All participants must be marked at the body marking area located near the Transition area. Body
`marking will stop at 6:45 am.
`
`Winning Time Chip Timing: You will receive ourtiming chip on event morning at the Timing Chip Pick-Up Tent.
`YOU MUST HAVE YOUR BIB NUMBER TO PICKUP A CHIP. All chips should be secured to your LEFT ANKLE with the
`Velcro strap provided and not hidden under heavy clothing. Please review the Chip Instruction Sheet in your event
`packet. You are responsible for the return of your chip to the timing officials at the finish line. Failure to return your chip
`for any reason will result in a $50.00 replacement fee. THERE WILL BE NO EXCEPTIONS TO THIS RULE.
`
`- NOTE: You must have your run number with you on race morning to pick up your timing chip.
`o NOTE: Do not cross any timing mats between 7-11 am on race day unless you are racing.
`
`Pre-Event Instructionsl Meeting: A pre—race participant meeting with important information and instructions
`will held at Saturday, August 22 at 6:00 pm at the transition area. This meeting is optional. A short pre—race briefing will
`take place at 6:45 am at the swim start race morning. You must attend this meeting!
`
`Pick UQ Your Trash: We ask you to be considerate and not throw debris on the ground during the run and bike.
`Littering compromises our chances of staging these races at selected venues.
`It also makes it difficult for staff and
`volunteers following the race.
`It will also get you DQ’d if a USAT official catches you! Please help us out and look for
`trash bins - there will be plenty of them scattered around the course.
`
`Post Race Festivities: Post Race Festivities will be at Ramada Inn 1.5 Miles north of Bonnett Street. The
`
`festivities will begin at approximately 10 am. You must bring your BIB # in order to receive 2 complimentary drinks.
`
`Awards: Award presentation will begin immediately after the last finisher completes the race. The estimated time for
`the awards ceremony is 10:30 am. The awards ceremony will be at Ramada Inn 1.5 miles north of Bonnett street.
`Post race beverages will be available also. Awards will not be mailed out. Have someone pickup your award if you are
`not present.
`
`FSSOO0185
`
`

`
`EXHIBIT C
`
`EXHIBIT C
`
`

`
`
`
`
`
`
`
`
`
`Outer Banks Triathlon
`For
`Outer Banks Sporting Events
`
`PROPOSAL PACKAGE
`
`
`
`1
`
`FSS000252
`
`

`
`TABLE OF CONTENTS
`
`
`
`
`
`Table of Contents…………………………………………………………………………………………..………2
`
`Objectives……………………………………………………………………………………………………………..3
`
`Agreement……………….……………………………………………………………………………………………4
`
` Fees……………………………………..………………………………………………………………………………5
`
`Contact Information and Action Item……………………………………………………………………....6
`
`
`
`
`
`2
`
`FSS000253
`
`

`
`FS Series LLC
`305 Coorsdale Drive
`Cary, NC 27511
`www.fsseries.com
`919.481.9556
`
`
`
`Event Production Company
`
`
`
`February 3, 2011
`
`Dear Outer Banks Sporting Events:
`
`On behalf of FS Series Event Production Company, we would like to thank you for allowing us to
`be your Timer and Event Manager. Our ultimate goal is to be your solution for all your event
`planning, promotion, organization, and management needs.
`
`Objectives
`
`Based on our discussions, the race and event objectives are as follows for the Outer Banks
`Triathlon on September 10 and 11th, 2011 in Manteo, NC based on 2 Year Contract.
`
`FS Series will promote the event through:
`1. A wide range of running and triathlon websites with race calendars.
`2. Periodic emails sent to email databases.
`3. Distribution of flyers at area race events leading up to your event.
`4. Provide course and insurance certification (USA Triathlon Certified). Per fee
`5. Provide participant database management and bib number allocation (part of timing
`service).
`6. On-site registration and website.
`7. Pre-registration and day of event registration direction.
`8. Complete timing of event with results posting on all relevant results websites.
`9. Obtain sanctioning and insurance for your event, if needed.
`10. Provide course materials such as cones, mile markers, etc, if needed.
`11. Provide bib numbers and respective number of safety pins, if needed.
`
`
`Event Results
`o On site preliminary results posted, approximately every 15 minutes
`o Award results printed for race director
`o Results posted on results site within 24 hours
`
`
`
`
`
`3
`
`FSS000254
`
`

`
`
`
`
`Client Agrees:
`
`
`AGREEMENT
`
`1. To use FS Series as the sole provider of duties and responsibilities as agreed
`upon below.
`2. To use FS Series online registration system.
`3. Use FS Series logo on all promotional materials and t shirts.
`4. To block off parking lot and allow FS to setup in designated area beginning at 12:00 pm
`the Friday before the race.
`5. To pay for costs associated with management of your event in addition to event
`management as they arise, e.g. timing, event website, event insurance, course
`certification, awards, etc. (to be specified and approved by client before acquired by FS
`Series.)
`6. To pay base rates if the event is cancelled unless the participant fees are returned.
`7. To not hold responsible FS Series, people and/or sponsors associated with FS Series, for
`any claims of damages or injuries brought by participants in your event, and/or poor or
`low participant turnout. Client shall pay FS Series for duties already carried out listed
`below if client cancels event for any reason.
`8. To pay a $200 non refundable deposit to secure the event date and services (the $200
`will be applied as a credit towards the timing costs after the event).
`
`
`
`FS Series Agrees To:
`
`Outer Banks Sporting Events
`
`1. Provide timing chips for race and 5 splits (Swim, T1, Bike, T2, Run, Finish)
`2. Provide required equipment to conduct a triathlon (clocks, netting, bike boxes, etc.)
`3. Arrive at event location in time to be set up for an 7:00 am start. Setup will occur
`Friday afternoon during packet pickup.
`4. Bring needed staff to support timing (Outer Banks Sporting Events to provide requested
`volunteers)
`5. Provide a finish line to include: a chip map, small tent, timing clock, small runner’s
`chute (via cones, or rope), and back up timing
`6. Event Results to be posted as defined above and are to include age group placing to be
`used by USA Triathlon for awards distribution.
`7. Provide all support to race director and staff for a successful event.
`
`
`4
`
`
`
`
`
`FSS000255
`
`

`
`
`
`
`
`Fees for Race Event
`
`Numbers based on 2 year contract
`
`Setup and Timing:
`
` base rate per day plus $
`
` per registration over 200 participants
`
`• 2 rooms for 3 nights at hotel accommodations—$
`• Mileage at $.
`/mile from Cary to event=N/A
`
` (Comp room is also adequate)
`
` $
`
`
`
`
`
`
`
`
`
`
`
`Rate
`
`Quantity
`
`Total
`
`$
`
`$
`
`$
`
`$
`
`$
`
`$.
`
`N/A
`
`
`
`
`
`2
`
`750
`
`1
`
`
`
`9
`
`500
`
`
`
`750
`
`
`
`$
`
`$
`
`$
`
`$
`
`$
`
`$
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`*$
`
`
`
`$
`
`Fees
`
`
`
`Base Rate
`
`
`
`
`
`
`
`Per Participant Fee $
`
`
`
`USAT Sanctioning
`
`
`
`Series Fee
`
`Triathlon series
`
`Hotel Room
`
`3 nights – 2 rooms
`
`Mileage
`
`$.
`
`at 500 miles
`
`Swim Caps
`
`Provided by FS
`
`Numbers
`
`Bike Frame and Helmet #’s
`
`Total
`
`
`
`
`
`*Estimated on bike frame and helmet #. This is the highest amount.
`
`5
`
`
`
`
`
`
`
`
`
`FSS000256
`
`

`
`
`
`
`
`
`Contact Information
`
`
`Business Address:
`
`FS Series LLC
`305 Coorsdale Drive
`Cary, NC 27511
`www.fsseries.com
`919.481.9556 (Office/Fax)
`
`Jason Biggs, Partner, 919-796-4878, jason@fsseries.com
`
`Brent Dorenkamp, Partner, 919-790-0364, brent@fsseries.com
`
`Marc Primanti, Partner 919-931-9262, marc@fsseries.com
`
`
`
`
`
`
`Action Item
`
`If you are in agreement with this letter, please sign below and return to me at your earliest
`convenience. **Note that your event date will not be guaranteed with FS Series until the LOA
`is in place and $200 deposit made. Please contact me with any questions and/or concerns.
`
`Again, thank you for choosing FS Series Event Production Company. We look forward to
`serving you.
`
`Sincerely,
`
`Brent, Jason and Marc
`FS Series Event Production Company
`
`Client Signature:
`
`Please mail to:
`
`FS Series
`305 Coorsdale Drive
`Cary, NC 27511
`
`6
`
`
`
`Print Name:
`
`
`
`Title:
`
`
`
`Date:
`
`
`
`
`
`
`
`FSS000257
`
`

`
`5410 Trinity Road, Suite 410. Raleigh ,NC 27607
`Phone: (919)747-7910. Fax: (919) SSf-2630
`www. keystonecorporation.com
`
`INGFACSIMILESHEET ( ln
`
`pages)
`
`Company:
`
`Fax Number:
`
`The following items are being faxed.
`
`For your comment/approvat
`
`t RGENT
`
`_
`Remarks:
`
`FYI
`-
`_ Per your request
`
`Per our conversation
`
`please Call
`
`'l)
`
`ar (er9) 74i-ist0.
`
`'
`t/ n
`"-f
`vith this transmission, please contact-
`Qluuu þ Tful ry
`!trc), p-n ^f- Ú//-/- þ"e'ltt\'t'' CONFIDENTIALITY N.TICE*
`'t4 U/'@
`r
`/\
`\"'
`l^;f
`--t,
`¡
`)
`U'/qUX--'
`,) ,./
`þrf*a-*
`4PÈ'"
`Cl¿Se
`P O ßø+J/"1 -'t/
`KÐÉ t ilU *7?/(
`
`rdividual or entity to which it is addressed and may contain information thar is privileged and
`tended recipient you are hereby notified that any disclosure, distribution or copying of this
`this transmission in error, ptease notify us immediately by telephone and retum the faxed
`ratesPostalservice
`
`9.doc
`
`FSS000072
`
`

`
`Contact Information
`
`fo*n m l(Å1
`
`Business Address:
`
`FS Series LLC
`305 Coorsdale Drive
`C^ry,NC 27511
`www.f'sserics.corn
`9 I 9.48 1.9556 (Offrce/Fax)
`
`Jason Biggs, Partner, 919-796-4878, iason(Òfsseries. com
`
`Brent Dorenka m p, Paft ner, 9 19-790-0364, brent@fsseri es. com.
`
`Marc Primanti, Paftner 919-931-9262, marc@fsseries.com
`
`Action ltem
`
`If you are in agreement with this letter, please sign below and return to me at your earliest
`convenience. **Note that your event date will not be guaranteed with FS Series until the LOA
`is in place and $200 deposit made. Please contact me with any questions and/or concems.
`
`Again, thank you for choosing FS Series Event Production Company. We look fonruard to
`seruing you.
`
`T
`
`Sincerely,
`
`Brent, Jason and Marc
`FS Series Event Production Company
`
`Cli.e4þSignature:
`
`Print Name:
`
`oL-
`
`ÐrL
`\ìfu*ó{r-
`[4; i'u tl o "
`"rr"
`Date: ,ltt fao t¡
`
`Please mail to:
`
`FS Series
`305 Coorsdale Drive
`Cary, NC 275LL
`
`=
`
`FSS000073
`
`

`
`Lynda Wood
`
`From:
`Sent:
`¡o:
`Cc:
`Subject:
`
`Lynda Wood < ltwood@yahoo.com >
`Wednesday, February 23,20LL L2:31 PM
`jason biggs
`lynda wood; jim snyder
`Fw: Re:OBSE TRI Contract
`
`Jason,
`Please see below. I don't see any problem with this, do you? Let me know, I'd like to get this to you today if
`possible.
`Thank you!
`
`Lynda
`252256-2056 cell
`-- On Mon, 2 l2l I ll, Jim Gilrea th <I írît@o ut e r b an ks law. c o m> wrote :
`
`From: Jim Gilreath <Jim@outerbankslaw.com>
`Subject: Re: OBSE TRI Contract
`To: "Lynda Wood" <ltwood@yahoo.com>
`Date: Monday, February 21,2011,9:13 PM
`
`Yes as long as he signs as well.
`
`Sent from my iPad
`
`On Feb 2I,20I1, at 8:59 PM, "Lynda Wood" <ltwood@yahoo.com> wrote:
`
`Is it acceptable for me to sign and fax the contract along with the (initialed) amendments agreed upon to Jason
`Biggs at FS to sign and initial. Would that be suffrcient to hold up as a legitimate contract agreement?
`Thank you.
`
`Lynda
`
`--- On Mon,2l2llll, Jim GilreathW
`
`wrote:
`
`From: Jim Gilreath <Jim@outerbanksla
`Subject: RE: RE: RE: OBSE TRI Contract
`To: "Lynda Wood" <ltwood@yahoo.com>
`Date: Monday, February 21,2011, 5:26 PM
`
`Lynda:
`
`t ),\ 2'({
`,J/ \>.)
`ty\
`q;(,Yu
`
`FSS000074
`
`

`
`ldeally you would want#7 on Page 4 to read something like this:
`
`1. To not hold responsible FS Series, íts agents and employees and/or sponsors associated with FS
`Series for any poor or low participant turnout. Client shall pay FS Series for duties already carried out
`listed below if client cancels event for any reason.
`
`It currently reads as follows:
`
`2. To not hold responsible FS Series, people and/or
`claims of damages or injuries brought by partici
`turnout. Client shall pay FS Series for duties already
`any reason.
`
`;"-àÞr,r
`
`associated with FS Series, for any
`your event, and/or poor or low participant
`out listed below if client cancels event for
`
`lf FS is directly responsible for the damages or injuries you would like to hold them accountable as well go after
`their insurance. As currently drafted it is inartfully worded. I don't have a problem releasing sponsors but
`surely FS has some insurance for what they do.
`
`I would be happy to discuss further with you. Thanks.
`
`On the other issue if you want to get 3-4 proposed dates/times I can likely make something work.
`
`Jim
`
`<image0)1.jpg>
`
`, ,,n \0'l[
`
`This e-mail mav contain confidential or privileqed information. lf vou are not the intended recipient. please advise bv return e-mail and delete
`immediatelv without readinq orforwardinq to others.
`
`Al,l
`
`")''v"
`
`FSS000075
`
`

`
`From: Lynda Wood [mailto:ttwood@yahoo.com]
`Sent: Monday, February 21,2011 4:16 pM
`To: Jim Gilreath
`Cc: jim snyder; John Gillam; lynda wood
`Subject: Fw: RE: RE: OBSE TRI Contract
`
`Jim,
`
`Please review and take a look at the email conversation I have had with Finish Strong (FS) and let me know if
`there are any other ammendments we need to make before signing this contract.
`
`Thank you!
`
`Also, I have spoken with Joanne Bailey (our medical rep) an{*dlsaidtoldher\<noffitren you are available to
`íiatow(r,
`ølk with Caroline Munay (10 yr. old who wants to run
`HalÐ andéhe will make herself available to meet
`with us. It would probably be best if it is around 3lD0lafter school.
`
`í,*#d
`
`Jim, Thank you so much for your help!
`
`Lynda
`
`--- On Mon, 2l2llll, Lynda \ilood <ylg@pþxsaoÈ wrote:
`
`From: Lynda V/ood <lUda@qbx$.o{g>
`Subject RE: RE: OBSE TRI Contract
`To: "'Jason Biggs"' @,
`"'Lynda Wood"'<ltwood@yahoo.com>
`Cc:'''jimsnyder'''<jirn@gþAg9'çam>,'''JimKfanda'''@,'''RobynKeenan'''
`<Iqþy!@qþxsg.atg>, "'John Gillam"'
`Date: Monday, February 2t,2011,9:49 AM
`
`Jason,
`
`Thank you so much! I will get something to you asap.
`
`We do look fonrard to working with you and FS again this year!
`
`Lynda
`
`4',*\â'rl
`
`À#r,V'V"\
`
`FSS000076
`
`

`
`From: Jason Biggs [mailto:jason@fsseries.com]
`Sent: Monday, February 21,2011 8:47 AM
`To:'Lynda Wood'
`Gc: Jim snyde/; 'Jim Kranda'; 'Robyn Keenan'; 'lynda wood'; 'John Gillam'
`Subject: RE: RE: OBSE TRI Contract
`
`Lynda,
`
`We are OK with the 1 year contractl Just let us know how to proceed. I will get registration updated today also.
`
`Thanks
`
`Jason
`
`FS Series - Racing Done Right
`
`www.fsseries.com
`
`---Original Message---
`From: Lynda Wood [mailto:ltwood@yahoo.com]
`Sent: Thursday, February 17,2011 4:36 PM
`To: iason@fsseries.com
`Gc: jim snyder; Jim Kranda; Robyn Keenan; lynda wood; John Gillam
`Subject: Fw: RE: OBSE TRI Contract
`
`Jason,
`
`Thank you for your swift reply. IVe do look forward to working with you and FS to help
`set-up and time the OB TRlathlon.
`
`I have placed a call in to you, but just to clarify in writing, I have copied your responses
`and added a few notes.
`
`There are several items in the contract that I'd like to request and/or clarify. They
`are as follows:
`
`-Pg. 3; We request that:
`
`{rJ' ,ul''"
`ix'Po"
`
`FSS000077
`
`

`
`-#2 FS consider sending out emails/eblasts building up our 3/1 launch
`date then on 3/1 announcing the OB TRlathlon registration launch. Wc
`cau inclttcle your ittfìlrrnation in or¡r ncxt blast corning out in thc ncxt f'crv
`days ancl .lul¡, ¿¡1,¡ Âugust blast. Thank you. This is great. Wc usually orrly
`clo thc month bcfìr'c bLlt wc havc no problcrn aclcling yor¡ guys to a f cw
`cxtra. Wc can't do OIIX'l'ri spccifìc trlast sillcc r,vc l.¡avc 40 t racc
`clircctors that r,vill cnlail asking \\,hy thcrc cvcnt isrr't gctting a sllccifìc
`blast. Ok. this is fine.
`
`-#6-FS Staff be on-site throughout the event to work directly with OBSE
`staff on registration. We also request assistance in working with the
`insurance situation with non-member registrants. M), rvif'c l)cbbic ancl lrS
`stall'will r11¿ìn¿ìgc rcgistrati<tn proccss. OIlSli voluntccrs/stafl'can hancl
`out nunrbcrs. swin.r ca¡rs. shirts. ctc. Sounds great! Thank you!
`-pg. 4; #3(top)- OBSE will use the FS logo on all sponsor recognition
`materials, if indeed FS is offering to sponsor some of their services. We
`will, however, put the FS logo on the OBSE events website and TRI
`webpage with a link to the FS site. I clon't havc a problcnr with krgo orr
`spotrsorsltip rnaterials. Wc clo provide sr,virn caps at a valuc of'$1.00 per
`person so \ryc actually coulci be a $ì750 spollsor il'you reach 750
`peoplc. IlLrt I'nl finc with whatevcr yoLr glrys clcciclc. We will add you as
`an in-kind sponsor- Thank you!
`
`#3(below)-We request that:
`
`- FS agree to provide staff assistance in setting the buoys for the races.
`I'm actually paying rny swirn coordinator that dclcs all my slvini [ruo1,
`placetttct-tts to conrc clor,vn stay lbr thc r.vcckcncl. l'rn rvorking on gctting
`hirrr a boat. We can probably get a boat with no problem. Work with Jim
`on this one- we need your staffhelp and advice on setting the bouys.
`- FS agree to: add the OBSE and TRI logo on the TRI registration
`site/page and in all OB TRI eblasts and promotionals; provide monthly
`payments to OBSE of registration fees m¡nus the participant's service
`fees; invoice OBSE for professional services (set-up and timing)
`following the event. Not a problem. What clate woulcl yoLr likc thc
`palinrents scnt b,v'l First of the month starting in April. So you r,r'¿int all thc
`registration nloncy thcn you are going to write a chcck back to us alÌcr tllc
`racc is ovcr? Yes, that's how we have arranged payment in the past with
`other timing companies. We need the cash flow. .f ust l'or clarif ication.
`
`Jason, we do consider you and FS to be a valuable partner in the
`success of the OB TRlathlon. I have heard nothing but positive comments
`about