Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA654446
`ESTTA Tracking number:
`02/06/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91207982
`Plaintiff
`Gface GmbH
`NED W BRANTHOVER
`ABELMAN FRAYNE & SCHWAB
`666 THIRD AVENUE , 10TH FLOOR
`NEW YORK, NY 10017
`UNITED STATES
`nwbranthaover@lawabel.com, pjlynfield@lawabel.com
`Other Motions/Papers
`Ned W. Branthover
`nwbranthaover@lawabel.com, pjlynfield@lawabel.com
`/Ned W. Branthover/
`02/06/2015
`Opposer's Motion to Take Deposition of Applicant by Video Conferencing -
`SIGNED - February 6, 2015.pdf(3209720 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
`
`222,605
`
`In the Matter of Serial No. 85/626,388
`Filed: May 15, 2012
`————————————————————————————————————————————————————-..X
`
`Gface GmbH,
`
`Opposer,
`
`Opposition No. 91207982
`
`iConnectUS LLC.
`
`Applicant.
`
`____________________________________________________ __x
`
`OPPOSER’S MOTION TO TAKE DEPOSITION OF APPLICANT BY VIDEO
`CONFERENCING
`
`Opposer Gface GmbH (“Gface” or “Opposer”) by and through its attorneys, moves pursuant
`
`to TBMP §404.06 and the Federal Rules of Civil Procedure 30(b)(4) for an order granting
`
`Opposer’s motion to take deposition of Applicant by Video conferencing at a date and time
`
`determined by the Board. Applicant resides in Costa Mesa, California and the deposition can take
`
`place in the jurisdiction where Applicant’s resides at the below location:
`
`U.S. Legal Support
`575 Anton Blvd., Ste. 400
`Costa Mesa, CA 92626
`(877) 479-2484
`
`FACTS
`
`1. On January 7, 2015 Opposer’s attorney sent an email to Applicant seeking consent to take
`
`Applicant’s deposition by telephone/video conferencing (“telephone”) together with a
`
`

`
`Notice of Deposition pursuant to Rule 30 (b)(6) noticing the deposition date for February 3,
`
`2015. A copy of the email and the Notice of Deposition is attached as Ex. A.
`
`2. On January 21, 2015 Opposer’s attorney sent another reminder email because Applicant’s
`
`attorney did not respond to the email dated January 9, 2015. A copy of this email is attached
`as Ex. B.
`1
`
`3. On January 31, 2015 Applicant’s attorney Andrew Do (“Mr. Do”) sent the attached email
`
`stating that his firm no longer represents the Applicant.‘ A copy of this email is attached as
`
`Ex. C.
`
`4. On February 2, 2015 Opposer’s attorney sent an email to Mr. Doinforming him that his firm
`
`is still the attorney of record and requested a response from him, concerning the deposition.
`
`A copy of this email is attached as Ex. D.
`
`5. On February 2, 2015 Opposer’s attorney received an email from Applicant’s CEO, Mr.
`
`Michael Fetyko, under the business name iConnectUSPRO, refusing to appear for the
`
`deposition pursuant to the Notice of Deposition because the place of deposition was noticed
`
`for Opposer’s attorney’s office in New York City. A copy of this email is attached is Ex. E.
`
`6.
`
`In reply, Opposer’s attorney sent an email to the Applicant on February 2, 2015 with a copy
`
`to Mr. Do requesting iirr a_l_ig their consent for a telephone deposition. A copy of this email
`
`is attached as Ex. F.
`
`7. Applicant did not reply to Opposer’s attorney’s February 2, 2015 email.
`
`8. Opposer’s attorney called Mr. Do on February 3, 2015 and left a voice mail message
`
`requesting a response by February 4, 2015.
`
`9. Mr. Do did not respond.
`
`1 Mr. Do’s law firm has changed from Oswald & Yap, APC to FitzGerald Yap Kreditor LLP but the address is the
`same.
`
`

`
`10. Therefore, Opposer is making this motion for a deposition by telephone/video conference to
`
`avoid unnecessary travel expenses and because based on Applicant’s conduct throughout
`
`this proceeding, Opposer doubts Applicant will appear for its deposition which will
`
`unnecessarily increase Opposer’s legal fees and expenses.
`
`11. Applicant’s failure to comply with its duties to cooperate in this proceeding is further
`
`evidence of App1icant’s bad faith. Therefore, Opposer requests that the Board admonish
`
`Applicant and instruct Applicant that its failure to appear for the deposition will be cause for
`
`a default judgment.
`
`Opposer also requests that this proceedings be extended to thirty (30) days after said deposition
`
`is scheduled. Under the current schedule, discovery will close on April 14, 2015. Opposer requires
`
`App1icant’s deposition to prepare its case. It is respectfully requested that this motion be granted
`
`for the reasons set forth above.
`
`, 1711
`Date: February (9 , 2015
`
`Resrfict
`1
`
`
`lly Submitted,
`
`Q1),/tact/\‘Vé»,,g,/,1
`
`K‘
`
`Ned W. Branthover
`
`ABELMAN, FRAYNE & SCHWAB
`666 Third Avenue
`
`New York, New York 10017
`Tel: 212-949-9022
`
`Fax: 212 949-9190
`
`Email: nwbranthover@1awabel.com
`
`Attorneys for Opposer
`Gface GMBH
`
`

`
`CERTIFICATE OF SERVICE
`
`r‘
`I hereby certify that this (0
`
`day ofFebruary, 2015, a copy of Opposer’s Motion to Take
`
`Deposition by Telephone was sent via email and regular mail to the following:
`
`Andrew Do, Esq.
`FitzGerald Yap Kreditor LLP
`16148 Sand Canyon Ave.
`Irvine, CA 92618
`
`Email: ado@fyk1aw.co1n
`
`Andrew Do, Esq.
`OSWALD &. YAP, APC
`16148 Sand Canyon Ave.
`Irvine, CA 92618
`
`Email: ado@oswald-yap.com
`
`Mr. Michael Fetyko
`My Game Face LLC
`324 E. 19“: Street
`
`Costa Mesa, CA 92627
`
`and a copy to:
`
`Emails: mfet ko
`
`iconnectus ro.com
`
`
`
`mfetyko@yahoo.com
`
`Ned W. Branthover
`
`

`
`EXHIBIT A
`
`

`
`
`
`T0:
`Subject:
`
`BRANTHOVER, N.
`RE.’ GAIVIEFACE TTAB Opp.-91207982 — Our File 222,605
`
`.. ,1... .
`..
`From:
`Sent: Friday, January 09, 2015 1:17 PM
`~ To: Andrew Do
`
`M..-
`
`.
`
`Subject: GAMEFACE TFAB Opp. 91207982 - Our File 222,605
`
`Mr. Do,
`
`l have attached a notice of deposition. Please confirm your receipt and consent to this date. I
`would probably like to take this deposition by phone at the outset and if more is needed then
`we can do a follow up deposition in person.
`After our last telephone conversation suggesting a settlement proposal, I have reviewed this
`file and I do not think a settle based on co—existence is possible since my client clearly has
`priority and the goods are similar.
`
`We look forward to hearing from you.
`Regards,
`
`Ned Branthover
`
`Ned W. Branthover
`
`Abelman Frayne Schwab
`
`666 Third Avenue
`
`New York, NY 10017
`
`(t) 212-885-9376
`
`(f) 212-949-9190
`
`Email: nwbranthover@lawabel.com
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`222,605
`
`ln the Matter of Serial No. 85/626,388
`Filed: May 15, 2012
`
`E§iii2;"&§I{i§i_i""""""""""""""""""""""""""""""
`Opposer,
`
`v.
`
`iConnectUS LLC.
`
`Applicant
`
`____________________________________________________
`
`:
`'
`
`:
`
`Opposition No. 91207982
`
`NOTICE or DEPOSITION
`
`PLEASE TAKE NOTICE that pursuant to Rule 30 (b)(6) of the Federal Rules of Civil
`
`Pz‘oced1.u*e, Opposer Gfaee GmbH will take deposition upon oral examination of Applicant
`
`iConnectUS LLC (“Applicant”). Applicant is requested to designate a representative to testify
`
`concerning the following:
`
`l) The selection of the mark GAMEFACE (“Mark”).
`
`2) The development of any product or printed rnaterial bearing or using the Mark inchrding
`
`but not limited to Game]?ace Executive Summary produced by Applicants in response to
`
`Opposer’s First Set of Document Request, a copy of the cover page is attached as Ex, A.
`
`3) The preparation of the GameFace Executive Summary as Ext A.
`
`4) All investors in Applicant’s GAMEFACE products and all persons Applicant
`
`approached as investors
`
`5) Applicant’s discovery responses.
`
`

`
`The deposition will commence at 10 am. on Feb1‘ua1‘y 3, 2015 at the offices ol’Abelmem,
`
`l~7rayne _& Sohwab, 666 Third Avenue, New York, NY 10017 or such other time and place as agreed
`
`upon by the parties.
`
`The examination will be conducted before a notary public or other officer authorized to
`
`aCl.1'I1lI1lST.(31' maths and will be recorded swnographically.
`
`Date: January _"-L 2015
`
`Respectfully Submitted,
`
`CM.»
`
`,
`
`/"’
`ff
`X»
`
`.
`
`If
`
`//?m
`
`'
`Necl W. Branthover
`ABBLMAN, FRAYNJL‘ (SQ: SCHWAB
`666 Third Avenue
`
`New York, New York 10017
`Tel: 2l2—949—9022
`
`Fax: 212 949-9190
`Email: nWb1*anthover@lawabel.c0m.
`
`Attorneys for Opposer
`GFACE GMBH
`
`

`
`_CERTIEICATE QF SERVICE
`
`11 hereby certify that this ELU1 day of;i~».W;:_?L_, 2015, a copy ofthe Notice of
`Deposition was sent via email and US. first—c1ass mail to the following:
`
`Andrew Do
`
`OSWALD & YAP, APC
`16148 Sand Canyon Ave.
`Irvine, CA 92618
`
`Email; ado@oswa1d~yap.com
`
`
`
`

`
`EXHIBIT A
`
`

`
`Gam‘eFacea= Executive Summary
`
`@2012 My GameFace, LLC CONFIDENTIAL
`
`

`
`EXHIBIT B
`
`

`
`
`To:
`BRANTHOVER, N.
`Subject:
`RE: GAIVIEFACE TTAB Opp. 91207982 — Our File 222,605
`
`2
`From: BRANTHOVER,
`Sent: Wednesday, January 21, 2015 1:19 PM
`To: ‘Andrew Do‘
`Subject: RE: GAMEFACE TFAB Opp. 91207982 — Our File 222,605
`
`Mr. Do,
`We would appreciate a response to our below email by Friday January 23,2015.
`Regards,
`Ned Branthover
`
`From: .BRANTHOll/ER“, 2 W
`Sent: Friday, January 09, 2015 1:17 PM
`To: Andrew Do
`Subject: GAMEFACE TTAB Opp. 91207982 — Our File 222,605
`
`Mr. Do,
`I have attached a notice of deposition. Please confirm your receipt and consent to this date. I
`would probably like to take this deposition by phone at the outset and if more is needed then
`we can do a follow up deposition in person.
`After our last telephone conversation suggesting a settlement proposal, l have reviewed this
`file and I do not think a settle based on co—existence is possible since my client clearly has
`priority and the goods are similar.
`We look forward to hearing from you.
`
`Regards,
`
`Ned Branthover
`
`Ned W. Branthover
`
`Abelman Frayne Schwab
`
`666 Third Avenue
`New York, NY 10017
`
`(t) 212—885—9376
`(f) 212-949-9190
`Email: nwbranthover@lawabel.com
`
`

`
`EXHIBIT C
`
`

`
`
`
`To:
`Subject:
`
`'
`
`BRANTHOVER, N.
`RE: GAMEFACE TTAB Opp. 91207982 — Our File 222,605
`
`From: Andrew Do <ado@fyklaw.com>
`
`Date: January 31, 2015 at 4:29:04 AM EST
`To: "BRANTHOVER, N." <nwbranthover@lawabel.com>
`Subject: RE: GAMEFACE TTAB Opp. 91207982 — Our File 222,605
`
`Mr. Branthover,
`
`~ Our firm no longer represents the Applicant in this matter.
`
`Andrew Do, Of Counsel
`
`Fit‘zGerald Yap Kreditor LLP
`16148 Sand Canyon Avenue
`Irvine, California 92618
`ado(a3fyklaw.com
`Telephone: (949) 788-8900
`Facsimile: (866) 303~9026
`This electronic mail message is intended solely for the use of the individual or entity to which it is addressed and
`may contain privileged and confidential information that is exempt from disclosure under applicable law. If the
`reader of this electronic mail message is not the intended recipient(s) or the employee or agent responsible for
`delivering the electronic mail message to the
`intended recipient(s), you are hereby notified that
`any
`dissemination, distribution, or copying (digital or otherwise) of this communication is strictly prohibited. If you
`have received this communication in error, please notify us immediately by telephone at
`(949) 788-8900
`and/or electronic mail at ado@fyl<law.com that you have destroyed any printed copies and deleted any digital copies
`of the electronic mail message. Thank you.
`
`\§~.
`
`

`
`EXHIBIT D
`
`

`
`
`
`To:
`Subject:
`
`BRANTHOVER, N.
`RE: GAMEFACE TTAB Opp. 91207982 — Our File 222,605
`
`.As...s.......__,-._........t..c_...»..,.1,.,.m.z ,/
`
`~
`
`.—s........,...../.-..,.-— ..
`
`~:_-$422’
`
`A —...,...v,..,.r..,..m-.— ~.....=_—_..1...g....=.
`
`»......;..;..,1m¢s..1._;...;..m._-w.;.,.......¢......_..l.... .n_-l.._~;_.l......_..m_-_. w.-:N.‘..=2—.l..._...,._k..a.ns.;.,..,,.m..,.......M..-V_......4B....;-i.m.m.».....»)I—(hF}1:h0\1J&im—1l1lIdb{IMibI'lsI4nné’-X
`
`From: BRANTHOVER, N.
`Sent: Monday, February 02, 2015 11:57 AM
`To: ‘Andrew Do’
`
`Subject: RE: GAMEFACE TTAB Opp. 91207982 ~ Our File 222,605
`
`‘Mr. Do
`
`Your firm is still attorney of record in the subject opposition representing ICONNECTUS
`LLC. Therefore, your representation is inaccurate. We therefore request a pre~motion
`* discovery conference for today at 3pm East Coast time to discuss this discovery dispute.
`Regards,
`
`Ned Branthover
`
`Ned W. Branthover
`
`Abelman Frayne Schwab
`
`666 Third Avenue
`
`New York, NY 10017
`
`(t) 212-885-9376
`
`(f) 212-949-9190
`
`Email: nwbranthover@lawabel.com
`
`..........
`
`................m...,..............-...........=.........,....._....s.s...............,.......................
`
`Sent: Saturday, January 31, 2015 4:29 AM
`To: BRANTHOVER, N.
`Subject: RE: GAMEFACE 'lTAB Opp. 91207982 — Our File 222,605
`
`Mr. Branthover,
`
`Our fnm no longer represents the Applicant in this matter.
`
`Andrew Do, Of Counsel
`
`FitzGerald Yap Kreditor LLP
`16148 Sand Canyon Avenue
`Irvine, California 92618
`ado@,flklavv.com
`Telephone: (949) 788-8900
`Facsimile: (866) 303-9026
`This electronic mail message is intended solely for the use of the individual or entity to which it is addressed and may contain
`privileged and confidential information that is exempt from disclosure under applicable law.
`If the reader of this electronic
`mail message is not the intended recipient(s) or the employee or agent responsible for delivering the electronic mail message to the
`intended recipient(s), you are hereby notified that any dissemination, distribution, or copying (digital or otherwise) of
`this communication is strictly prohibited. Ifyou have received this communication in error, please notify us immediately by telephone
`1
`
`

`
`EXHIBIT E
`
`

`
`mlH=Arv¢;m::¢i’/ldicafiiakewrlvlgerwtyko [mailto:mfetyko@iConnectUsPro.com] wwwwwwwwMMMVVVVM
`Sent: Monday, February 02, 2015 2:24 PM
`To: BRANTHOVER, N.
`Subject: GameFace Deposition Location
`Importance: High
`
`Dear Mr. Bra nthover:
`
`Having reviewed the Notice of Deposition on the GameFace Trademark matter I realized the deposition place is located
`in New York. My understanding of the FRCP 45 is the deposition must be held within 100 miles of my residence, which is
`California. Please change the location of the deposition to Orange County CA near Laguna Beach. Please let me know
`the address, time and place.
`
`All the best,
`
`Michael Fetyko
`CEO
`
`i€onnectUSPR“
`
`
`
`Voice: 949.295.6697
`
`Email: rnfetyl<o@iconnectusprocom
`
`Skype: mfetyko
`Web: www.iconnectuspro.com
`
`The information contained in this email message and any attachments
`may be privileged, confidential and protected from disclosure. Any
`unauthorized use, printing, copying, disclosure, dissemination ofor
`reliance upon this communication by persons other than the intended
`recipient may be subject to legal restriction or sanction. If you think
`you have received this email message in error, please reply to the
`sender and delete this email promptly. Thank you for your cooperation.
`
`

`
`EXHIBIT F
`
`

`
`
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`
`BRANTHOVER, N.
`Monday, February 02, 2015 2:51 PM
`LYNFIELD, P.
`Ngai, Ann
`FW: GameFace Deposition Location
`
`From: BRANTHOVER, N.
`Sent: Monday, February 02, 2015 2:50 PM
`To: ‘Michael Fetyko'
`Cc: ‘Andrew Do‘
`
`Subject: RE: GameFace Deposition Location
`
`Mr. Fetyko,
`
`I am responding to your below email. i cannot communicate with you directly when you are
`represented by counsel, so I am copying your attorney of record on this email. Your attorney
`informed me by email this past Friday that he is no longer representing lConnect, but he has
`not withdrawn as your attorney of record.
`
`If your current attorney is not going to represent the Applicant lConnect then you need to file
`a substitution of attorney. Since the applicant is a corporation you must retain an attorney to
`represent your company. This has been explained to you many times before and the TTAB has
`
`informed you of this in its rulings.
`
`When I served the notice of deposition, we requested the deposition to be by telephone. So,
`we request your consent to a telephone deposition, and we need to arrange for the deposition
`exhibits to be sent to you.
`
`Therefore, please file a substitution of attorney; otherwise, we will proceed with a motion to
`
`compel. We would appreciate a response from your attorney.
`
`Regards,
`
`Ned Branthover
`
`Ned W. Branthover
`
`Abelman Frayne Schwab
`
`666 Third Avenue
`
`New York, NY 10017
`
`(t) 212-885-9376
`
`(f) 212-949-9190
`
`Email: nwbranthover@|awabel.com