Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA588253
`ESTTA Tracking number:
`02/19/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91204941
`Plaintiff
`John G. Marino
`SCOTT BEHREN
`BEHREN LAW FIRM
`2893 EXECUTIVE PARK DRIVE, SUITE 203
`WESTON, FL 33331
`UNITED STATES
`scott@behrenlaw.com, scott.behren@gmail.com
`Motion to Compel Discovery
`Scott M. Behren
`scott@behrenlaw.com, scott.behren@gmail.com
`/Scott M. Behren/
`02/19/2014
`Marino Further Motion to Compel Final.pdf(98282 bytes )
`082313 J Kelly.pdf(59936 bytes )
`082313 M Cowart.pdf(113828 bytes )
`082313 R Hajicek.pdf(109742 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`
`ESTTA588253
`ESTTA Tracking number:
`02/19/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91204941
`Plaintiff
`John G. Marino
`SCOTT BEHREN
`BEHREN LAW FIRM
`2893 EXECUTIVE PARK DRIVE, SUITE 203
`WESTON, FL 33331
`UNITED STATES
`scott@behrenlaw.com, scott.behren@gmail.com
`Motion to Compel Discovery
`Scott M. Behren
`scott@behrenlaw.com, scott.behren@gmail.com
`/Scott M. Behren/
`02/19/2014
`Marino Further Motion to Compel Final.pdf(98282 bytes )
`082313 J Kelly.pdf(59936 bytes )
`082313 M Cowart.pdf(113828 bytes )
`082313 R Hajicek.pdf(109742 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 trademark application Serial No. 85414343
`For the mark LAGUNA LAKES Published in the Official Gazette on
`February 28, 2012
`
`Opposition No: 91204941
`
`JOHN GERARD MARINO
` v.
`
`LAGUNA LAKES COMMUNITY ASSOCIATION, INC.
`
`JOHN GERARD MARINO’S MOTION
`TO COMPEL EXPANSION OF QUESTIONING AT
`30(b)(6) DEPOSITION AND FOR EXTENSION OF TIME FOR
`DISCOVERY
`
`John Gerard Marino (“Marino”), by and through his undersigned
`
`counsel hereby moves this tribunal for an Order expanding the scope of
`
`questioning at the 30(b)(6) deposition in this matter and states as follows:
`
`1. On February 3, 2014, this Court entered an Order compelling a
`
`further deposition of
`
`the corporate representative of Laguna Lakes
`
`Community Association, Inc. (“LLCA”). This tribunal ordered LLCA to
`
`produce another 30(b)(6) witness with knowledge of (1) applicant’s first use
`
`of its subject marks; and (2) information regarding any transfer/assignments
`
`of the subject marks by Transeastern Homes or any TOUSA entity to
`
`applicant.
`
`2. Based upon the additional depositions of LLCA taken of Jeff
`
`
`
`Kelly, Mary Ann Cowart, and Robert Allen Hajicek (copies of which are
`
`attached hereto), Marino seeks the Tribunal to further Order that LLCA
`
`produce a 30(b)(6) representative with knowledge of the following areas:
`a. That LLCA was not the creator of the logo;
`
`b. That Transeastern Homes, LLC never transferred ownership of
`Logo or name to LLCA;
`
`c. That before filing name application LLCA knew that “Laguna
`Lakes” is a geographic location in California;
`
`d. That before filing name application LLCA knew that at least 2
`others communities in USA have prior use of name, “Laguna Lakes;”
`
`e. Both applications were filed specifically to harm John Gerard
`Marino, A/K/A “Mr. Laguna Lakes” and not protect LLCA commerce.
`
`f. That LLCA does not and has never engaged in intrastate commerce;
`
`g. That False information was knowingly submitted on both
`Trademark applications;
`
`h. That Pertinent information was knowingly omitted on both
`Trademark applications
`
`3. Marino believes that allowing these additional deposition areas
`
`will better allow this tribunal to resolve the issues between the parties at
`
`trial. Marino seeks an extension of the discovery cut-off in this matter to
`
`allow this tribunal to rule on this Motion prior to the scheduled deposition
`
`on March 3, 2014 so that only one more deposition is necessary.
`
`WHEREFORE, Marino requests an Order expanding the scope of
`
`questioning at the 30(b)(6) deposition in this matter, for an extension of the
`
`
`
`discovery cut-off, and for any other relief this Tribunal deems just and proper.
`
`I HEREBY CERTIFY that a true and correct copy of the foregoing was
`
`furnished by electronic mail on this 19 day of February 2014 to: Donna M.
`
`Flammang, Esq., Brennan Manna & Diamond, P.L., 3301 Bonita Beach
`
`Road, Suite 100, Bonita Springs, FL 34134.
`BEHREN LAW FIRM
`2893 Executive Park Drive Suite 110
`Weston, FL 33331
`(954) 636-3802
` scott@behrenlaw.com
`By:/ Scott M. Behren/
`Scott M. Behren
`Fla. Bar 987786
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`Post Office Box 1451
`Alexandria, Virginia 22313-1451
`
`
`
`
`
`
`JOHN G. MARINO,
`
`
`vs. OPPOSITION NO. 91204897
` OPPOSITION NO. 91204941
`
`LAGUNA LAKES COMMUNITY ASSOCIATION, INC.,
`
`___________________________________
`
` DEPOSITION OF: JEFF KELLY
`
` DATE TAKEN: August 23, 2013
`
` TIME: 3:25 p.m. to 3:46 p.m.
`
`
`
`
`
`
`
`
`
` LOCATION: Von Ahn Associates, Inc.
` 13241 University Drive
` Suite 104
` Fort Myers, Florida
`
` BEHALF OF: The Plaintiff
`
`
`
`
`
` REPORTED BY: Marianne E. Sayers, RPR, CRR,
` Court Reporter and Notary Public
` State of Florida
`
`
`_______________________________________________________
`
`
`VON AHN ASSOCIATES, INC.
`Registered Professional Reporters
`2271 McGregor Boulevard, Second Floor
`Fort Myers, Florida 33901
`(239) 332-7443 FAX (239) 332-4066
`
`
`
`South Fort Myers * Naples * Punta Gorda
`
`
`
` 1
`
`APPEARANCES:
`
` 2
`
`
`
`For the Plaintiff(s):
`
`
`
` BEHREN LAW FIRM
` 2893 Executive Park Drive
` Suite 110
` Weston, Florida 33331
`
`
`
` By: Scott M. Behren, Esquire
`
`
`For the Defendant(s):
`
`
`
` BRENNAN, MANNA & DIAMOND
` 3301 Bonita Beach Road
` Suite 100
` Bonita Springs, Florida 34134
`
`
`
` By: Richard S. Annunziata, Esquire
`
`
`For the Defendant(s): (Via Conference Phone)
`
`
`
` BRENNAN, MANNA & DIAMOND
` 75 East Market Street
` Akron, Ohio 44308
`
`
`
` By: W. Scott Harders, Esquire
` Chad Rothschild, Esquire
`
`
`
`
`ALSO PRESENT: John G. Marino
`
`
`
`I N D E X
`
`
`ATTORNEY DIRECT CROSS REDIRECT RECROSS
`
`MR. BEHREN 3
`
`
`
`E X H I B I T S
`
`
`NUMBER DESCRIPTION PAGE MARKED
`
`(None)
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
` 3
`
` 1
`
`Thereupon,
`
` 2
`
`JEFF KELLY,
`
` 3
`
` a witness, called by counsel for Plaintiff, having
`
` 4
`
`been first duly sworn by the court reporter, was
`
` 5
`
`examined and testified as follows:
`
` 6
`
` 7
`
`THE WITNESS: I do.
`
`DIRECT EXAMINATION
`
` 8
`
`BY MR. BEHREN:
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`State your name, please.
`
`Jeff Kelly.
`
`Are you a resident of Laguna Lakes?
`
`I am.
`
`Were you on the board of Laguna Lakes at
`
`14
`
`some point in time?
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`about?
`
`23
`
`24
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`I was.
`
`When, approximately? From when to when?
`
`2011, 2012.
`
`Just one year?
`
`Two years.
`
`Two years.
`
`Do you know what this particular matter is
`
`Regarding trademark.
`
`Okay. Do you know what -- about what
`
`25
`
`regarding trademark?
`
`
`
` 4
`
` 1
`
` 2
`
`A
`
`Q
`
`I don't know the specifics, no.
`
`Okay. And have you ever had a deposition
`
` 3
`
`taken before?
`
` 4
`
` 5
`
`A
`
`Q
`
`No.
`
`All right. I am going to ask you a bunch of
`
` 6
`
`questions. Hopefully --
`
` 7
`
` 8
`
` 9
`
`A
`
`Q
`
`Sure.
`
`-- you'll give me answers.
`
`Try to, please, however, we speak one at a
`
`10
`
`time, so the court reporter can type it all up and have
`
`11
`
`a clear transcript.
`
`12
`
`13
`
`14
`
`A
`
`Q
`
`Okay.
`
`All right?
`
`Please try to respond verbally, yes, no, I
`
`15
`
`don't know. The uh-huh, uh-uh, shaking and nodding of
`
`16
`
`the head doesn't get transcribed well by the court
`
`17
`
`reporter.
`
`18
`
`19
`
`A
`
`Q
`
`Okay.
`
`All right? If you need a break at some
`
`20
`
`point in time, you need a drink, or whatever, then we
`
`21
`
`can -- I'm sure we can accommodate you.
`
`22
`
`23
`
`24
`
`all?
`
`25
`
`A
`
`Q
`
`A
`
`Okay.
`
`Have you ever been convicted of a crime at
`
`No.
`
`
`
` 5
`
` 1
`
`Q
`
`And how long have you been living in Laguna
`
` 2
`
`Lakes for?
`
` 3
`
` 4
`
` 5
`
`there?
`
` 6
`
` 7
`
`A
`
`Q
`
`A
`
`Q
`
`Approximately since '05. About eight years.
`
`Okay. So, did you buy new construction
`
`Yes.
`
`So, you actually bought your unit from
`
` 8
`
`Transeastern?
`
` 9
`
`10
`
`A
`
`Q
`
`Correct.
`
`And are you familiar at all with the
`
`11
`
`trademark applications that were going to be filed on
`
`12
`
`behalf of Laguna Lakes for the name Laguna Lakes, as
`
`13
`
`well as a certain logo, which appears here on top of
`
`14
`
`Exhibit F?
`
`15
`
`16
`
`what?
`
`17
`
`A
`
`Q
`
`In regards to what? Am I familiar with
`
`Are you familiar with the fact that there
`
`18
`
`was applications filed for these particular trademarks?
`
`19
`
`20
`
`21
`
`22
`
`A
`
`Q
`
`A
`
`Q
`
`By?
`
`By the Laguna Lakes Community Association.
`
`Yes.
`
`Okay. Tell me what you know or recall about
`
`23
`
`that particular issue.
`
`24
`
`A
`
`It was voted on at a board meeting, and I
`
`25
`
`voted for it.
`
`
`
` 6
`
` 1
`
` 2
`
` 3
`
` 4
`
`Q
`
`A
`
`Q
`
`A
`
`Why?
`
`I felt it was the right thing to do.
`
`Why?
`
`It seemed to be, in my opinion, that --
`
` 5
`
`should be the ownership of the community.
`
` 6
`
`Q
`
`Okay. And what -- what made you believe
`
` 7
`
`that Laguna Lakes Community Association owned either the
`
` 8
`
`name or the logo?
`
` 9
`
`10
`
`11
`
`A
`
`Q
`
`A
`
`That they owned it?
`
`Yeah.
`
`I never said they did own it. I just
`
`12
`
`thought it was a good idea that we trademarked it.
`
`13
`
`Q
`
`So, you don't have any knowledge whether or
`
`14
`
`not Laguna Lakes Community Association, Inc. was ever
`
`15
`
`the owner of either the name or the logo?
`
`16
`
`17
`
`A
`
`Q
`
`No.
`
`Isn't it true that Transeastern would have
`
`18
`
`been the owner of the name and the logo?
`
`19
`
`20
`
`other.
`
`21
`
`A
`
`Q
`
`I don't know that to be true one way or the
`
`Okay. Do you know when it was that Laguna
`
`22
`
`Lakes Community Association first started to use the
`
`23
`
`name and logo?
`
`24
`
`25
`
`A
`
`Q
`
`No.
`
`Do you -- were you ever -- was Gerard Marino
`
`
`
` 7
`
` 1
`
`ever discussed at these -- at the board meeting where it
`
` 2
`
`was the -- it was approved to apply for these
`
` 3
`
`trademarks?
`
` 4
`
` 5
`
`A
`
`Q
`
`Probably.
`
`Okay. What do you recall about discussions
`
` 6
`
`about Mr. Marino?
`
` 7
`
` 8
`
` 9
`
`10
`
`A
`
`Q
`
`A
`
`Q
`
`About the signage being used.
`
`What signage being used?
`
`For-sale signs being used.
`
`Okay. What kind of for-sale signs? You
`
`11
`
`mean like signs planted in the development, or outside
`
`12
`
`the development, or what?
`
`13
`
`14
`
`A
`
`Q
`
`Both, from what I can remember, yeah.
`
`Okay. Was there some complaint about
`
`15
`
`Mr. Marino using either the name Laguna Lakes or the
`
`16
`
`logo? Do you recall that?
`
`17
`
`A
`
`There was discussion. Whether it was a
`
`18
`
`complaint or not, I can't say it was a complaint, but
`
`19
`
`yeah, there was discussion.
`
`20
`
`Q
`
`Okay. What do you recall about -- being
`
`21
`
`discussed about that issue?
`
`22
`
`A
`
`That it should be approved by the board and
`
`23
`
`the board should -- the board as an entity should have a
`
`24
`
`right to the logo for the community.
`
`25
`
`Q
`
`Okay. But that was -- so, that was -- it
`
`
`
` 8
`
` 1
`
`was your belief that the board should have a right to
`
` 2
`
`the logo, but do you -- did you have any legal opinions
`
` 3
`
`at all on whether or not you actually were entitled to
`
` 4
`
`the logo?
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`A
`
`Q
`
`Did I personally have any?
`
`The board.
`
`UNIDENTIFIED SPEAKER: Objection, to the
`
`extent you're asking for a legal opinion that he
`
`may have held.
`
`10
`
`BY MR. BEHREN:
`
`11
`
`Q
`
`Did it -- let me ask you, was the filing of
`
`12
`
`a trademark, in particular these trademarks, was that
`
`13
`
`discussed with Ms. Flammang at a board meeting?
`
`14
`
`15
`
`A
`
`Q
`
`I don't remember whether it was or not.
`
`Okay. Do you know how it was that
`
`16
`
`Ms. Flammang wound up getting selected to file the
`
`17
`
`trademark applications?
`
`18
`
`19
`
`A
`
`Q
`
`No, I don't.
`
`Do you ever recall, at a board meeting that
`
`20
`
`the public was entitled to attend, there being a
`
`21
`
`discussion between Ms. Flammang and the board members
`
`22
`
`about the seriousness of filing a trademark?
`
`23
`
`24
`
`25
`
`A
`
`Q
`
`A
`
`About the seriousness?
`
`Yeah.
`
`No.
`
`
`
` 9
`
` 1
`
`Q
`
`Was there ever any discussion by
`
` 2
`
`Ms. Flammang with the board at a public meeting that in
`
` 3
`
`order to obtain the trademark -- to obtain these
`
` 4
`
`particular trademarks, that Laguna Lakes Community
`
` 5
`
`Association had to be the owners of the marks?
`
` 6
`
` 7
`
`A
`
`Q
`
`That they what?
`
`They had to be the owners of the things that
`
` 8
`
`they sought to be trademarked.
`
` 9
`
`10
`
`11
`
`A
`
`Q
`
`A
`
`A discussion by Donna?
`
`Yeah.
`
`Not that I recall, that -- I mean, whether
`
`12
`
`it was Donna specifically or not, no, I don't.
`
`13
`
`Q
`
`Was there ever any complaints by members of
`
`14
`
`the association about Ms. Flammang's law firm and
`
`15
`
`Ms. Flammang being used to prosecute these legal matters
`
`16
`
`for the association?
`
`17
`
`18
`
`19
`
`20
`
`A
`
`Q
`
`A
`
`Q
`
`Members of the association?
`
`Yes.
`
`No.
`
`Were there ever members of the association
`
`21
`
`who -- well, why, were there members of the board who
`
`22
`
`complained about --
`
`23
`
`A
`
`Oh, you mean members of the actual -- what I
`
`24
`
`would call the association would be the actual board.
`
`25
`
`The association -- you're talking association as far as
`
`
`
` 10
`
` 1
`
`residents?
`
` 2
`
` 3
`
` 4
`
`Q
`
`A
`
`Q
`
`Homeowners, yeah.
`
`There was, yes.
`
`What was -- what was discussed about that,
`
` 5
`
`that you recall?
`
` 6
`
`A
`
`That one of the residents was questioning
`
` 7
`
`why they were selected, why her firm was selected.
`
` 8
`
`Q
`
`Okay. What was the response on that, if you
`
` 9
`
`recall?
`
`10
`
`11
`
`was.
`
`12
`
`A
`
`Q
`
`I don't recall exactly what the response
`
`As far as you know, when you were on the
`
`13
`
`board, was Laguna Lakes involved in any interstate
`
`14
`
`commerce at all?
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`UNIDENTIFIED SPEAKER: Objection.
`
`Go ahead and answer, though, Jeff, if you
`
`know.
`
`THE WITNESS: No, not that I --
`
`MR. BEHREN: Well, just to clarify, I
`
`don't -- you don't represent this individual,
`
`correct?
`
`UNIDENTIFIED SPEAKER: I can object on
`
`behalf -- on behalf of the board, but Mr. Tardiff
`
`is here -- or, excuse me, Mr. Kelly is here
`
`subject to your subpoena.
`
`
`
` 11
`
` 1
`
` 2
`
` 3
`
` 4
`
`MR. BEHREN: I understand, right. So,
`
`you -- like I said, you don't represent this
`
`gentleman.
`
`Let me ask you another question.
`
` 5
`
`BY MR. BEHREN:
`
` 6
`
`Q
`
`Did you -- have you discussed -- since you
`
` 7
`
`left the board, have you discussed either this matter
`
` 8
`
`between Mr. Marino and the association at all with
`
` 9
`
`anybody?
`
`10
`
`11
`
`12
`
`13
`
`A
`
`Q
`
`A
`
`Q
`
`I'm sure I have.
`
`You don't recall any discussions?
`
`Not with anybody on the board, no.
`
`Okay. Once you got subpoenaed for this
`
`14
`
`particular case, did you speak with anybody about this
`
`15
`
`issue?
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Yeah, I'm sure I did.
`
`Who did you speak with?
`
`My wife, friends, neighbors.
`
`Okay.
`
`Yeah.
`
`What was discussed?
`
`Just that I got subpoenaed, and I have never
`
`23
`
`been subpoenaed before, and I was going to go give a
`
`24
`
`deposition, yeah.
`
`25
`
`I have never personally spoke with Gerard, I
`
`
`
` 12
`
` 1
`
`have never -- you know, so it was -- it was kind of --
`
` 2
`
`you know, kind of different. So, yeah, I speak about
`
` 3
`
`it, sure.
`
` 4
`
` 5
`
` 6
`
`MR. MARINO: I don't even think we have ever
`
`formally met, have we?
`
`THE WITNESS: We never have, no.
`
` 7
`
`BY MR. BEHREN:
`
` 8
`
`Q
`
`So, the -- so, I didn't remember, though,
`
` 9
`
`the answer to the question as far as whether or not --
`
`10
`
`are you aware of Laguna Lakes Community Association
`
`11
`
`being engaged in any interstate commerce at all? I
`
`12
`
`don't remember if you answered that.
`
`13
`
`14
`
`A
`
`Q
`
`I did, and I said no, I don't.
`
`Do you have any -- do you have any knowledge
`
`15
`
`at all about the association's website, like when it was
`
`16
`
`formed and when it was first being -- when it was first
`
`17
`
`started?
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`(Shaking head negatively.)
`
`Do you have any knowledge --
`
`No. Sorry, I need to -- you can't type --
`
`Yeah.
`
`No.
`
`Do you have any knowledge at all about
`
`24
`
`LagunaLakes.com, the domain name?
`
`25
`
`A
`
`Knowledge as far as whether it exists?
`
`
`
` 13
`
` 1
`
`Q
`
`Who's -- whether it exists, who's using it,
`
` 2
`
`who's ever used it.
`
` 3
`
` 4
`
`A
`
`Q
`
`No.
`
`Do you have any knowledge at all as to who
`
` 5
`
`created the Laguna Lakes logo?
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`A
`
`Q
`
`A
`
`Q
`
`No.
`
`I'm sorry?
`
`No.
`
`No.
`
`Do you have any knowledge about whether or
`
`11
`
`not Transeastern had a Laguna Lakes website at some
`
`12
`
`point in time?
`
`13
`
`14
`
`15
`
`16
`
`17
`
`A
`
`No, I don't have any knowledge of that.
`
`MR. MARINO: Could you show him the original
`
`packet, the package, original exhibit, and just
`
`have him verify who's the logo was --
`
`(Off-the-record discussion.)
`
`18
`
`BY MR. BEHREN:
`
`19
`
`Q
`
`Oh, let me ask you -- let me show you
`
`20
`
`Exhibit G, which is a trademark application for the logo
`
`21
`
`that was filed with the U.S. trademark office.
`
`22
`
`23
`
`A
`
`Q
`
`Okay.
`
`And let me show you Exhibit I, which is also
`
`24
`
`a trademark application filed by the association
`
`25
`
`actually just for the name Laguna Lakes.
`
`
`
` 14
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`Okay.
`
`Have you ever seen those before --
`
`No.
`
`-- today?
`
`No.
`
`Were you ever given those as a board member
`
` 7
`
`for review before the applications got filed with the
`
` 8
`
`trademark office?
`
` 9
`
`10
`
`A
`
`Q
`
`Not that I remember.
`
`There's some information on those things
`
`11
`
`that indicates that LagunaLakes.com was the website
`
`12
`
`being used by the association. Do you -- that's not the
`
`13
`
`case, correct?
`
`14
`
`15
`
`A
`
`Q
`
`Can you repeat?
`
`Do you know what the domain name is for the
`
`16
`
`Laguna Lakes Community Association?
`
`17
`
`18
`
`19
`
`A
`
`Q
`
`A
`
`20
`
`is, no.
`
`21
`
`22
`
`Q
`
`A
`
`No.
`
`Okay.
`
`I mean, I don't -- I don't remember what it
`
`You haven't been on it recently?
`
`It's saved in my favorites, so I don't have
`
`23
`
`to, you know, plug it in. And no, I haven't been on it
`
`24
`
`in, yeah, a long time.
`
`25
`
`Q
`
`And on both these applications, too, there
`
`
`
` 15
`
` 1
`
`is an indication as to the claimed first use in -- of
`
` 2
`
`commerce of the name Laguna Lakes and the logo. Do you
`
` 3
`
`have any knowledge at all, personal knowledge at all, as
`
` 4
`
`to when the name or the logo were first used in commerce
`
` 5
`
`by Laguna Lakes Community Association?
`
` 6
`
` 7
`
`A
`
`Q
`
`No.
`
`Do you have any knowledge at all as to when
`
` 8
`
`the signs at the front of the development were first
`
` 9
`
`erected on the development?
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`No.
`
`The Laguna Lakes signs.
`
`No.
`
`Were they there already when you moved in?
`
`Um --
`
`Or do you remember?
`
`I can't say for -- but I would think -- I
`
`17
`
`would think so, because when we moved in, the models
`
`18
`
`were up, so I -- I think probably the -- I don't know
`
`19
`
`for sure, so I'm not going to say yes, whether the signs
`
`20
`
`were there or not.
`
`21
`
`22
`
`23
`
`Q
`
`A
`
`Q
`
`I got you.
`
`Right.
`
`And that -- so, that year -- and that was
`
`24
`
`when again, you thought, 2005?
`
`25
`
`A
`
`We probably moved in in '05, yeah.
`
`
`
` 16
`
` 1
`
`Q
`
`Okay. So, you're not sure, as of '05,
`
` 2
`
`whether the signs were up outside or not?
`
` 3
`
` 4
`
` 5
`
` 6
`
`A
`
`Q
`
`A
`
`Q
`
`Hundred percent, no.
`
`Was the gate up at the time?
`
`Which gate?
`
`The front gate, where the guards were and
`
` 7
`
`what have you.
`
` 8
`
`A
`
`The swing gate, or the -- I mean, there's
`
` 9
`
`two sets of gates. There is an arm, and there is a
`
`10
`
`swing.
`
`11
`
`Q
`
`Which gates, if any, do you remember were up
`
`12
`
`at the time when you moved in?
`
`13
`
`A
`
`I believe the up-and-down gates have always
`
`14
`
`been there, even when we had a guard, I believe.
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Uh-huh.
`
`Was there a guard there when you moved in?
`
`Is "I believe so" allowed?
`
`I mean --
`
`You know, you're asking --
`
`-- you either recall or you don't recall.
`
`Okay, I --
`
`If you don't recall --
`
`No, I don't recall.
`
`Okay.
`
`Okay.
`
`
`
` 17
`
` 1
`
` 2
`
`MR. MARINO: I got to talk to you outside.
`
`(A brief recess was taken.)
`
` 3
`
`BY MR. BEHREN:
`
` 4
`
`Q
`
`Do you -- are you aware of any instances
`
` 5
`
`where anybody expressed any confusion that Gerard Marino
`
` 6
`
`was somehow working on behalf of the Laguna Lakes
`
` 7
`
`Community Association?
`
` 8
`
` 9
`
`A
`
`Q
`
`That he was working on behalf?
`
`Yeah, that he was somehow affiliated with
`
`10
`
`the association.
`
`11
`
`12
`
`13
`
`A
`
`Not to my knowledge, no.
`
`MR. MARINO: Did they know of anybody who
`
`thought there was any confusion?
`
`14
`
`BY MR. BEHREN:
`
`15
`
`Q
`
`Are you aware of anybody who thought that
`
`16
`
`there was some confusion between the association and
`
`17
`
`Mr. Marino?
`
`18
`
`19
`
`20
`
`21
`
`A
`
`Not to my knowledge.
`
`MR. MARINO: Was there --
`
`MR. BEHREN: Write down the questions.
`
`(Off-the-record discussion.)
`
`22
`
`BY MR. BEHREN:
`
`23
`
`Q
`
`Was there anybody at all who was confused
`
`24
`
`that the -- that the association somehow worked for
`
`25
`
`Gerard Marino?
`
`
`
` 18
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
`UNIDENTIFIED SPEAKER: Objection.
`
`THE WITNESS: I can't speak for anybody
`
`else.
`
`MR. MARINO: That he knows, anybody ever
`
`express to him?
`
` 6
`
`BY MR. BEHREN:
`
` 7
`
`Q
`
`Did anybody ever tell you that they were
`
` 8
`
`somehow confused about the relationship between
`
` 9
`
`Mr. Marino and the association?
`
`10
`
`11
`
`12
`
`13
`
`A
`
`No.
`
`MR. BEHREN: That's it. We're done.
`
`MR. MARINO: You, Jeff.
`
`MR. BEHREN: Thank you.
`
`14
`
` (Off-the-record discussion.)
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`MR. BEHREN: You can either -- after the
`
`transcript gets typed up, you could either come
`
`back to the court reporter's office and read it,
`
`to make sure it was accurately transcribed --
`
`THE WITNESS: Uh-huh.
`
`MR. BEHREN: -- or you can waive that right,
`
`which means basically she'll type it up and you
`
`won't ever have to see the transcript again.
`
`Or you can say you're going to read it, and
`
`then when she sends you the letter, if you decide
`
`I'm not going to bother reading it, I don't want
`
`
`
` 19
`
`to be bothered after all, it will be deemed a
`
`waiver and then she'll just type it up. She gives
`
`you a certain period of time after it's ready for
`
`you to review it.
`
`THE WITNESS: Okay.
`
`MR. BEHREN: If you don't want to review it,
`
`then just let it go.
`
`THE WITNESS: I would like to review it.
`
` (Deposition concluded.)
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
` 20
`
` 1
`
` 2
`
`ERRATA SHEET
`
`DO NOT WRITE ON TRANSCRIPT - ENTER CHANGES
`
` 3
`
`DEPOSITION OF: JEFF KELLY
`
` 4
`
`DATE OF DEPOSITION: August 23, 2013
`
` 5
`
`RE: Marino vs. Laguna Lakes
`
`
`
` 6
`
` 7
`
` 8
`
`PAGE LINE CHANGE REASON
`
`________________________________________________________
`
`________________________________________________________
`
` 9
`
`________________________________________________________
`
`10
`
`________________________________________________________
`
`11
`
`________________________________________________________
`
`12
`
`________________________________________________________
`
`13
`
`________________________________________________________
`
`14
`
`________________________________________________________
`
`15
`
`________________________________________________________
`
`16
`
`________________________________________________________
`
`17
`
`________________________________________________________
`
`18
`
`________________________________________________________
`
`19
`
`
`
`Under the penalties of perjury, I declare that I
`
`have read the foregoing document and that the facts
`
`stated in it are true.
`
`_________________________________________________________
`DATE
` NAME
`
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
` 21
`
` 1
`
`
`
` 2
`
`CERTIFICATE OF OATH
`
` 3
`
` I, Marianne E. Sayers, RPR, CRR, Notary Public,
`
` 4
`
`State of Florida at Large, certify that the witness JEFF
`
` 5
`
`KELLY personally appeared before me on August 23, 2013
`
` 6
`
`and was/were duly sworn.
`
` 7
`
`(This certificate has been digitally signed.)
`
`
`
`
`
` ________________________________
` Marianne E. Sayers, RPR, CRR,
` Notary Public, State of Florida
` Commission DD942088
` Commission Expires 1/19/2014
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`
`
`15
`
`
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
` 22
`
` 1
`
`
`
` 2
`
`CERTIFICATE OF REPORTER
`
` 3
`
`STATE OF FLORIDA)
`
` 4
`
`COUNTY OF LEE)
`
` I, Marianne E. Sayers, RPR, CRR, do hereby certify
`
`
`
` 5
`
` 6
`
`that I was authorized to and did stenographically report
`
` 7
`
`the deposition of JEFF KELLY; that a review of the
`
` 8
`
`transcript was requested; and that the transcript is a
`
` 9
`
`true and complete record of my stenographic notes.
`
`10
`
` I FURTHER CERTIFY that I am not a relative,
`
`11
`
`employee, or attorney, or counsel of any of the parties,
`
`12
`
`nor am I a relative or employee of any of the parties'
`
`13
`
`attorney or counsel connected with the action, nor am I
`
`14
`
`financially interested in the action.
`
`15
`
` DATED this 9th day of September, 2013.
`
`16
`
`(This certificate has been digitally signed.)
`
`
`
` ____________________________
` Marianne E. Sayers, RPR, CRR
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`Post Office Box 1451
`Alexandria, Virginia 22313-1451
`
`
`
`
`
`
`JOHN G. MARINO,
`
`
`vs. OPPOSITION NO. 91204897
` OPPOSITION NO. 91204941
`
`LAGUNA LAKES COMMUNITY ASSOCIATION, INC.,
`
`___________________________________
`
` DEPOSITION OF: MARY ANN COWART
`
` DATE TAKEN: August 23, 2013
`
` TIME: 3:53 p.m. to 4:48 p.m.
`
`
`
`
`
`
`
`
`
` LOCATION: Von Ahn Associates, Inc.
` 13241 University Drive
` Suite 104
` Fort Myers, Florida
`
` BEHALF OF: The Plaintiff
`
`
`
`
`
` REPORTED BY: Marianne E. Sayers, RPR, CRR,
` Court Reporter and Notary Public
` State of Florida
`
`
`_______________________________________________________
`
`
`VON AHN ASSOCIATES, INC.
`Registered Professional Reporters
`2271 McGregor Boulevard, Second Floor
`Fort Myers, Florida 33901
`(239) 332-7443 FAX (239) 332-4066
`
`
`
`South Fort Myers * Naples * Punta Gorda
`
`
`
` 1
`
`APPEARANCES:
`
` 2
`
`
`
`For the Plaintiff(s):
`
`
`
` BEHREN LAW FIRM
` 2893 Executive Park Drive
` Suite 110
` Weston, Florida 33331
`
`
`
` By: Scott M. Behren, Esquire
`
`
`For the Defendant(s):
`
`
`
` BRENNAN, MANNA & DIAMOND
` 3301 Bonita Beach Road
` Suite 100
` Bonita Springs, Florida 34134
`
`
`
` By: Richard S. Annunziata, Esquire
`
`
`For the Defendant(s): (Via Conference Phone)
`
`
`
` BRENNAN, MANNA & DIAMOND
` 75 East Market Street
` Akron, Ohio 44308
`
`
`
` By: W. Scott Harders, Esquire
` Chad Rothschild, Esquire
`
`
`
`
`ALSO PRESENT: John G. Marino
`
`
`
`I N D E X
`
`
`ATTORNEY DIRECT CROSS REDIRECT RECROSS
`
`MR. BEHREN 3
`
`
`
`
`NUMBER DESCRIPTION PAGE MARKED
`
`E X H I B I T S
`
` Photocopy of Business Cards 37
`
` L
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
` 3
`
` 1
`
`Thereupon,
`
` 2
`
`MARY ANN COWART,
`
` 3
`
` a witness, called by counsel for Plaintiff, having
`
` 4
`
`been first duly sworn by the court reporter, was
`
` 5
`
`examined and testified as follows:
`
` 6
`
` 7
`
`THE WITNESS: I do.
`
`DIRECT EXAMINATION
`
` 8
`
`BY MR. BEHREN:
`
` 9
`
`10
`
`11
`
`12
`
`Q
`
`A
`
`Q
`
`A
`
`Would you state your name.
`
`My name is Mary Ann Cowart.
`
`Where do you live?
`
`I live at 9350 Los Alisos Way, Fort Myers,
`
`13
`
`Florida, 33908.
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`case?
`
`24
`
`25
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`Have you ever had a deposition taken before?
`
`Once.
`
`When?
`
`I don't recall. Maybe about 20 years ago.
`
`What was it related to?
`
`Personal injury.
`
`You had a personal injury case?
`
`I did not.
`
`Were you a defendant in a personal injury
`
`I was not.
`
`Were you a witness in a personal injury
`
`
`
` 4
`
` 1
`
`case?
`
` 2
`
`A
`
`I -- I don't know how to answer that, but I
`
` 3
`
`can tell you what I did.
`
` 4
`
` 5
`
`Q
`
`A
`
`Okay.
`
`I was the property manager of a condo where
`
` 6
`
`the person got injured, and they called me in for a
`
` 7
`
`deposition.
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`And that was where, here in Florida?
`
`Yes.
`
`And you live in Laguna Lakes?
`
`I do.
`
`How long have you been there?
`
`Since approximately June of 2004.
`
`So, you bought it when it was first built?
`
`I bought it at a priority position --
`
`What does that mean?
`
`-- launch.
`
`I'm sorry?
`
`I purchased the home at a priority position
`
`20
`
`launch.
`
`21
`
`22
`
`Q
`
`A
`
`What's a priority position launch?
`
`It was a marketing ploy to get people to
`
`23
`
`sign up to buy homes.
`
`24
`
`25
`
`Q
`
`A
`
`Who was that by?
`
`Transeastern.
`
`
`
` 5
`
` 1
`
`Q
`
`Do you know what Transeastern entity was
`
` 2
`
`marketing and having this priority position launch?
`
` 3
`
` 4
`
`A
`
`Q
`
`Excuse me?
`
`Do you know what Transeastern entity was
`
` 5
`
`doing this marketing and having this priority position
`
` 6
`
`launch?
`
` 7
`
`A
`
`Well, it would have been the Transeastern
`
` 8
`
`corporation, I'm of the opinion.
`
` 9
`
`Q
`
`Have you ever been arrested or convicted of
`
`10
`
`a crime?
`
`11
`
`12
`
`A
`
`Q
`
`No, sir.
`
`Were you trying to avoid my process server
`
`13
`
`from serving you with a subpoena?
`
`14
`
`15
`
`A
`
`Q
`
`No, sir.
`
`Why is it that nobody would come in -- come
`
`16
`
`to the front door when your garage door was open and
`
`17
`
`there were clearly people at home?
`
`18
`
`19
`
`A
`
`Q
`
`I don't know when you're talking about.
`
`A couple days before the process server
`
`20
`
`served you with papers on your house.
`
`21
`
`22
`
`A
`
`Q
`
`I didn't know he was at the front door.
`
`Have you spoken with anybody at all about
`
`23
`
`the fact that you were seeking to be deposed in this
`
`24
`
`case?
`
`25
`
`A
`
`No, sir.
`
`
`
` 6
`
` 1
`
`Q
`
`You haven't spoken with any other residents
`
` 2
`
`of the association or board members at all?
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`yesterday?
`
`I spoke to Donna yesterday.
`
`Donna Flammang?
`
`I did.
`
`What did you discuss with --
`
`That --
`
`-- her --
`
`Hold on.
`
`What did you discuss with Donna Flammang
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`A
`
`Q
`
`That's --
`
`Go ahead.
`
`MR. ANNUNZIATA: Scott, can you hear
`
`clearly?
`
`MR. HARDERS: I would like her to speak up a
`
`little bit.
`
`MR. ANNUNZIATA: Yeah. I could -- the
`
`reason why I asked is that she's talking low, and
`
`I just didn't know if it was translating over into
`
`the phone.
`
`So, go ahead. If you could just speak a
`
`little louder so Scott can hear you. I will bring
`
`the phone closer to you.
`
`THE WITNESS: The fact that --
`
`
`
` 7
`
` 1
`
` 2
`
` 3
`
` 4
`
` 5
`
` 6
`
` 7
`
` 8
`
` 9
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`MR. ANNUNZIATA: Are you there, Scott?
`
`MR. HARDERS: Yep.
`
`MR. ANNUNZIATA: All right.
`
`MR. BEHREN: Go ahead.
`
`MR. HARDERS: Can we just repeat the
`
`question, just so we are all on the same page?
`
`MR. BEHREN: The question was what her and
`
`Donna Flammang discussed yesterday about this
`
`deposition.
`
`MR. HARDERS: Okay.
`
`THE WITNESS: That the -- I guess your guy
`
`left papers on my front door that I didn't even
`
`get until I went outside and saw it there, so I
`
`don't know when it was left, and that it had an
`
`exhibit referenced that wasn't attached.
`
`16
`
`BY MR. BEHREN:
`
`17
`
`18
`
`19
`
`Q
`
`A
`
`Q
`
`Okay. What else?
`
`That's it.
`
`What did you discuss about your deposition
`
`20
`
`in this case or about this case with her?
`
`21
`
`A
`
`That I was going to come and answer your
`
`22
`
`questions.
`
`23
`
`Q
`
`You were on the Laguna Lakes Community
`
`24
`
`Association board?
`
`25
`
`A
`
`At one point, I was.
`
`
`
` 8
`
` 1
`
` 2
`
`Q
`
`A
`
`When?
`
`I don't know when. I haven't been on the
`
` 3
`
`board for a while, so I was -- I went off of it, I
`
` 4
`
`guess -- let me think about this. So, this is 2013.
`
` 5
`
`So, I went off of it this year, so I would have been on
`
` 6
`
`it the two previous years and maybe a month or two
`
` 7
`
`before that.
`
` 8
`
`Q
`
`So, you went off this year. So, you went
`
` 9
`
`off in 2013?
`
`10
`
`11
`
`A
`
`Q
`
`Yes.
`
`So, you would have been on probably, you
`
`12
`
`said when, two previous years? So, what, back to 2010
`
`13
`
`or 2011?
`
`14
`
`A
`
`I -- I think I was like -- maybe went on in
`
`15
`
`October or November of '09, if that means -- wait a
`
`16
`
`minute. Wait a minute. Wait a minute.
`
`17
`
`Can I have a piece of paper, please, and a
`
`18
`
`pen?
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`pen.
`
`MR. ANNUNZIATA: Want me to hand her one?
`
`MR. BEHREN: Sure.
`
`THE WITNESS: Okay.
`
`MR. ANNUNZIATA: There you go, and here is a
`
`THE WITNESS: This is 2013
Accessing this document will incur an additional charge of $.
After purchase, you can access this document again without charge.
Accept $ Charge
Still Working On It
This document is taking longer than usual to download. This can happen if we need to contact the court directly to obtain the document and their servers are running slowly.
Give it another minute or two to complete, and then try the refresh button.
A few More Minutes ... Still Working
It can take up to 5 minutes for us to download a document if the court servers are running slowly.
Thank you for your continued patience.
This document could not be displayed.
We could not find this document within its docket. Please go back to the docket page and check the link. If that does not work, go back to the docket and refresh it to pull the newest information.
Your account does not support viewing this document.
You need a Paid Account to view this document. Click here to change your account type.
Your account does not support viewing this document.
Set your membership
status to view this document.
With a Docket Alarm membership, you'll
get a whole lot more, including:
- Up-to-date information for this case.
- Email alerts whenever there is an update.
- Full text search for other cases.
- Get email alerts whenever a new case matches your search.
One Moment Please
The filing “” is large (MB) and is being downloaded.
Please refresh this page in a few minutes to see if the filing has been downloaded. The filing will also be emailed to you when the download completes.
Your document is on its way!
If you do not receive the document in five minutes, contact support at support@docketalarm.com.
Sealed Document
We are unable to display this document, it may be under a court ordered seal.
If you have proper credentials to access the file, you may proceed directly to the court's system using your government issued username and password.
Access Government Site
