Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA685823
`ESTTA Tracking number:
`07/25/2015
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91214673
`Plaintiff
`Edge Games, Inc.
`REV DR TIM LANGDELL
`EDGE GAMES INC
`530 SOUTH LAKE AVENUE , 171
`PASADENA, CA 91101
`UNITED STATES
`uspto@edgegames.com, tim@edgegames.com
`Motion to Compel Discovery
`Dr. Tim Langdell
`tim@edgegames.com, uspto@edgegames.com
`/Tim Langdell/
`07/25/2015
`OpposersMotionToCompel.pdf(1583598 bytes )
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`Proceeding
`Party
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`Correspondence
`Address
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`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`EDGE GAMES, INC.
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`Opposer,
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`v.
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`FUTURE PUBLISHING LTD.,
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`Applicant
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`____________________________________}
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`Cancellation No. 91214673
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`Mark: EDGE
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`Application Serial Nos. 85153958
`and 85153981
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`OPPOSER'S MOTION TO COMPEL DISCOVERY RESPONSES
`AND MOTION TO TEST THE SUFFICIENCY OF RESPONSE
`TO ADMISSION REQUESTS
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`Comes Opposer Edge Games, Inc. ("Opposer") moving to compel the applicant Future
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`Publishing, Ltd. ("Applicant") to comply with discovery requests and to both produce documents
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`reasonably requested and to correct and amend its inadequate or false responses to Admission
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`Requests.
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`BACKGROUND
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`These proceedings have comprised thus far of Applicant doing all it can to frustrate
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`Opposer's reasonable attempts to pursue discovery. It has now almost a year since Opposer
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`served its discovery requests on Opposer, and still to this day Opposer has not produced a single
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`page of a single document, instead Opposer has put up every barrier it can contrive to explain
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`why it has still not complied with any document discovery request (and as will be see below,
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`Applicant has now invented the absurd 'fact' that in over twenty years of trading in the U.S. it
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`has never bothered to track either its sales or marketing activity in the U.S. -- a clear falsehood
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`that it is astounding Applicant would expect the Board to be so naive as to be deceived by).
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`Further, while Applicant served responses to Opposer's request for Interrogatories and
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`Admissions, such responses were mostly not actually responsive, and several of its responses to
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`Admission Requests and Interrogatories were blatantly false, and/or deliberately misleading
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`and/or deceitful, or at best disingenuous.
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`In March and April of 2014, and the commencement of the discovery period, Opposer did
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`all in its power to try to persuade Applicant to participate in the discovery process. While the
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`parties ultimately exchanged email pertaining to initial disclosure, despite extensive attempts by
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`Opposer to have Applicant join Opposer in an actual discovery conference telephone call,
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`Applicant repeatedly either failed to do so or refused to do so. It was Opposer's assumption --
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`now acknowledged to be naive -- that if Applicant would just agree to take part in a telephonic
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`discovery conference, that the parties would be able to broadly agree what documents to produce
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`to each other, and on what timescale. But Applicant persistently refused to even have such a
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`telephonic conference, nor would they enter into email exchanges on the topic.
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`By August 2014 Opposer was out of patience with trying to get Applicant to participate
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`in discovery, and to attend a discovery conference, and consequently Opposer served its initial
`discovery requests on Applicant on August 11, 2014 (see Exhibits A,B,C of Dr Langdell's
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`attached declaration). In response, Opposer tried without success to ascertain that Applicant at
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`least intended to participate in discovery, and that it would even respond to Opposer's First
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`Discovery Requests. From every impression given to Opposer, Applicant continued to refuse to
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`take part in an actual discovery conference call, and gave Opposer every reason to believe it did
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`not intend to respond to the Discovery Requests. Further, Applicant had taken no steps itself to
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`serve any discovery on Opposer, further supporting the impression that Applicant had no
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`intention of taking part in discovery.
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`As a consequence, Opposer filed and served what was in hindsight a slightly premature
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`(by a few days) Motion to Compel on September 12, 2014 having been given the clear indication
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`by Applicant that it did not intend to participate. In fact, while Applicant did serve barely
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`technically acceptable responses just within the time permitted, these responses were not in any
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`real sense actually "responsive" to the Discovery Requests -- rather they were just a series of
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`excuses as to why Applicant had not responded and had not produced even a single document
`(see Exhibits D, E, F to Dr Langdell's declaration). Accordingly, Opposer filed an Amended
`Motion to Compel Discovery dated September 24, 2014 making this point (see docket#11).
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`The Board ultimately ruled on Opposer's Amended Motion to Compel on December 30,
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`2014 (docket #21) denying Opposer's motion on the misunderstood basis that Opposer had not
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`made sufficient attempt to work out discovery issues with Applicant prior to filing the Amended
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`Motion. In fact, contrary to the misunderstood position the Board presumed in its December
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`ruling, Opposer had made extensive attempts to discuss discovery with Applicant, dating right
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`back to March and April of 2014 when Opposer tried without success to have Applicant
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`participate in an Initial Discovery Conference at which the parties could have worked out what
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`documents would be produced and on what time schedule, etc.
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`Certainly, Opposer did not make only one attempt to discuss the issues with Applicant,
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`giving them only 24 hours to respond (as the Board mistakenly stated in its December ruling),
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`rather the email in question that the Board was referring to was just one of many attempts, both
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`in writing and telephonically, to work the issues out with Applicant. Moreover, and pertinently, it
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`appears that the Board missed the key fact that the email in question was not asking Applicant to
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`actually serve responses or produce documents within 24 hours, rather all the email called for
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`was that Applicant merely confirm that it did intend to participate in any meaningful way in
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`discovery, and that it would be producing documents. That was far from being an unreasonable
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`request on short notice given Applicant's failure to respond to repeated such requests since
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`March of that year. And yet Applicant still refused to respond to even just confirm that it
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`intended to participate in any way in discovery, or to confirm that it would produce any
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`documents at all, even on a timescale to be agreed between the parties.
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`Bearing this entire corrected picture in mind, Opposer's Amended Motion to Compel was
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`not at all unreasonable. Indeed, Opposer would say that its Amended Motion was in hindsight
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`entirely reasonable (and, with respect, should perhaps have been granted at the time) given that
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`now, a whole year later, Applicant has still not produced a single document and still not
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`provided acceptable discovery responses.
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`In its December 30, 2014 ruling, the Board stated that it had confidence that the parties
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`could work out discovery issues between them in good faith without needing to resort to a
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`Motion to Compel being granted. Thus in good faith, Opposer reached out to Applicant in early
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`January 2015, and eventually was able to at last get Applicant to agree to the first telephone call
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`between the parties to discuss discovery. The telephone call finally took place on January 30,
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`2015. In that telephone call Mr. Rob Phillips acting for Applicant made the following
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`commitments to Opposer: first, in respect to Opposer's Interrogatory Requests which Applicant
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`had refused to respond to at all. Applicant sought to maintain that the number of interrogatories
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`exceeded the maximum permitted, but Opposer continued its response to that false suggestion,
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`which response Opposer promptly made in September 2014, that it is clear on the face of the
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`record that the number of interrogatories were not excessive. In the January 30th call, the parties
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`agreed a compromise, which Mr. Phillips orally agreed to on behalf of Applicant. Namely,
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`Opposer would send Applicant a revised set of Interrogatory Requests, this time renumbering the
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`requests and editing them so that it is clear they are well within the prescribed limits. In return,
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`Applicant agreed to respond to said amended interrogatories within 14 days and agreed not to
`insist on a further 30 days to respond (see Exhibit T to the attached declaration of Dr. Langdell).
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`Accordingly, believing the parties had a firm oral agreement, Opposer served its original
`Interrogatories, re-edited as agreed, on Applicant on February 3, 2015 (Exhibit T, Langdell
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`decln.). That is, very promptly following the telephonic meeting on January 30. However,
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`Applicant reneged on its oral agreement to respond within 14 days, and indeed did not respond
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`within 30 days either. Instead, when Opposer inquired with Applicant as to the whereabouts of
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`the promised Interrogatory responses, Applicant both decided to falsely state that it had never
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`agreed to respond in anything less than 30 days, and also denied receipt of the newly edited
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`version. Despite Opposer showing proof of service on February 3, 2015, and sending a further
`courtesy copy on March 2, 2015 (see Exhibit H to attached declaration by Dr Tim Langdell),
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`Applicant insisted that it would ignore the proof of service and that it intended to take a full 30
`days to respond (see Exhibit I to attached declaration by Dr Tim Langdell). Applicant then
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`proceeded to take a full 30 days to respond, eventually sending its Interrogatory responses that
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`were due in September 2014 to Opposer in April 2015. While these responses were at least a
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`marginally reasonable attempt at response, they were not fully responsive and worse in several
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`cases they were knowingly false and/or deliberately misleading.
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`As to Opposer's Initial Request for Production of Documents, in the January 30, 2015 call
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`Applicant conceded that its previous excuses for not producing any documents based on the fact
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`that at the time there were motions pending were no longer valid reasons for failing to produce
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`documents given the motion(s) were resolved in December 2014. Opposer proposed that
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`Applicant respond to the best of its ability, where it felt the request was over broad or
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`burdensome, Applicant should respond to the extent that it felt to be reasonable and appropriate.
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`Opposer also agreed to send Applicant details of its responses to Applicants objections clarifying
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`further narrowing of scope. However, Opposer did not agree to serve amended Requests for
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`Production per se, since it was agreed between the parties that Applicant would commence
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`production within two weeks and Opposer did not wish to create a situation where Applicant
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`suddenly decided it had a further 33 days to respond to a formal Amended Request. Mr. Phillips,
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`on behalf of Applicant, orally agreed to this proposal in the January 30, 2015 call, and indicated
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`that he would seek to speak with his clients in Britain within the following week, and that he
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`would then aim to start producing such documents as they agreed to produce commencing the
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`following week.
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`In the event, Mr. Phillips went silent on Opposer and no documents were produced
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`despite the oral undertaking to at least commence the process. Opposer served its responses
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`narrowing scope of discovery in early February, but Applicant did not respond, either within the
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`two weeks agreed upon, or at all (even to this day). Mr. Phillips was to later deny that he agreed
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`to produce any documents, or speak to his client in Britain, and reverted to the obstinate position
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`he held prior to the January 30 call, namely a position of simply refusing to produce documents
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`and adhering to their grounds for non-production based on their objections.
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`In regard to Opposer's First Request for Admissions, in the January 30, 2015 call
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`Opposer pointed out that among the most egregious reasons for Opposer finding Applicant's
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`initial responses unacceptable was the fact that a number of responses were clearly false based
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`on the public record. At the time, in the January 30 call, Mr. Phillips conceded that some of the
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`responses were indeed not accurate, and he agreed to review the document with a view to serving
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`a revised set of Admission Request responses within the ensuing two weeks. In the event,
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`Applicant once again reneged on its agreement, failed to produce an amended set of Admission
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`responses, and then eventually denied that it had ever agreed to revise its prior responses.
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`On March 25, 2015 Opposer wrote to Applicant to once again complain that despite what
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`was agreed in the January 30 call, and despite the assurances given to Opposer in the call,
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`Opposer had still received no revised Admission responses and had still received no documents
`at all in response to the document requests (see Exhibit J to attached declaration by Dr.
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`Langdell). In response, Applicant acted as if the January 30 call had never occurred, and merely
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`responded that it stands by its previous responses -- which includes the Admission responses
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`noted to be false by both parties, and standing by the their position that they do not need to
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`produce any documents, with no indication that they ever intend to produce a document in
`response to any request from Opposer (see Exhibit K to attached declaration by Dr. Langdell).
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`On February 3, 2015 Opposer served on Applicant a Reply to Applicant's objections to
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`Opposer's First Set of Requests for Document Production, significantly narrowing scope and
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`clarifying what was being requested to ensure all requests were valid, not overly burdensome
`(see Exhibit G to Dr. Langdell's declaration). However, as stated above, more than a month later
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`in March, Applicant had still neither produced any documents nor indicated that it even intended
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`to ever produce any.
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`On April 7, 2015 Applicant finally sent to Opposer its responses to the Interrogatories
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`that Opposer had served on Applicant in August 2014. However, these responses fell short of
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`being acceptable and to Opposer's alarm Applicant made no reference at all to the missing
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`revised Admission responses or the complete absence of the document production promised in
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`the January 30 call. Moreover, the Interrogatory responses confirmed a number of documents
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`that Applicant stated it was aware it possessed and needed to produce, but yet still there
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`remained no indication that Applicant was prepared to even produce these specified documents
`(see Exhibit E to attached declaration by Dr. Langdell).
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`On April 9, 2015 Opposer wrote yet again to Applicant once more pointing out that
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`discovery promised in the January 30, 2015 phone call had not been received. Applicant failed to
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`respond to this message, and continued to fail to respond to any attempts to discuss Applicant
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`complying with discovery requests for the ensuing two months until mid June. In mid June,
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`Opposer contacted the Board and asked for permission again to file and serve a Motion to
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`Compel since after a further five months there had been no movement in Applicant complying
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`with discovery, particularly in regard to the promised corrected Admissions responses and in
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`regard to the production of any documents whatsoever (let alone complete production of all
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`documents Opposer is entitled to). The Board refused to grant permission to file a Motion to
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`Compel, and instead asked Opposer to yet again seek to work things out amicably with
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`Applicant.
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`On June 17, 2015 Opposer, in compliance with the Board's request, reached out to
`Applicant yet again, this time specifically insisting on a telephone conference call (see Exhibit L
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`to attached declaration by Dr. Langdell). Applicant initially agreed to participate in a call on
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`Tuesday June 18, 2015 (see Exhibit L to attached declaration by Dr Tim Langdell) but then
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`reneged on that agreement. Mr. Phillips continued to fail to make himself available, but by
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`Opposer being insistent, eventually Mr. Phillips' colleague, Mr. Cullis, agreed to speak on behalf
`of Applicant in an inter-parties call on June 19, 2015 (see Exhibit L to attached declaration by
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`Dr. Langdell).
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`The conversation with Mr. Cullis was entirely unproductive since on behalf of Applicant
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`he simply continued to assert that the Interrogatory responses they had give were adequate, that
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`they now intend to stand by their original Admission responses (even having previously admitted
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`they were in error and knowingly false), and he continued to maintain that Applicant has no
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`obligation to produce any documents whatsoever at this stage of the proceedings. Opposer
`summarized the call to Applicant in an email on June 19, 2015 (see Exhibit M of Dr. Langdell's
`declaration). Applicant then sought to send its own summary of the same call (see Exhibit N of
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`Dr. Langdell's declaration), which was significantly at variance with Opposer's knowledge of
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`what actually took place in the call. In consequence, later on June 19, 2015 Opposer responded
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`to Applicant's false summary of events, correcting what actually took place and was said in the
`call (see Exhibit O of Dr. Langdell's declaration).
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`Most pertinently, while Opposer had taken the time to narrow the scope of its discovery
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`requests in early February 2015, Mr. Cullis purported for the first time in the June 19, 2015 call
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`that Applicant had not received such a document. Accordingly, Opposer sent Applicant a further
`copy of the February 3rd narrowing of scope (see Exhibit P to attached declaration by Dr.
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`Langdell) and in response Mr. Phillips indicated that he would respond the following week (see
`Exhibit Q to attached declaration by Dr. Langdell). However, yet again, Mr. Phillips reneged on
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`his word, and did not respond to the document narrowing scope of discovery requests. After a
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`further two weeks of no response from Applicant, and no sign at all of discovery being complied
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`with, Opposer once again telephone Applicant on July 7, 2015 asking Mr. Phillips specifically
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`when Opposer could expect Applicant to commence compliance with discovery, and in
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`particular when Applicant would at last start producing documents. In this call, Opposer
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`reminded Applicant that it had itself admitted to several documents that should be produced in its
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`Interrogatory responses. In response, Mr. Phillips refused to comment on when his client would
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`start to comply with discovery, or even if his client ever would start complying, and would only
`say that he was "99% certain it would not be this current week" (see Exhibit R to attached
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`declaration by Dr. Langdell).
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`Accordingly, with no movement at all on the majority of the dispute between the parties
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`after almost one full year of Opposer doing all it could to encourage Applicant to comply,
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`Opposer once again asked the Board for permission to file a Motion to Compel. This time the
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`Board granted that permission resulting in the instant motion.
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`GROUNDS TO COMPEL DOCUMENT PRODUCTION
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`Review of Applicant's so-called "Responses" to Opposer's First Set of Document
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`Requests shows that they are responses in name only, merely giving objections as to why they
`felt they did not need to respond - they did not actually acceptably "respond" (see Exhibit D to
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`Dr. Langdell's declaration).
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`During the period August to December 2014, Applicant refused to produce any
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`documents whatsoever relying primarily on the grounds that it argued there were pending
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`motions before the Board. Being experienced counsel, there can be no doubt that Applicant's
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`representatives were fully aware that time was not stayed in regard to obligations to respond and
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`perform on discovery requests during this period, and yet Applicant and its representatives still
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`persisted in not producing a single document.
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`Insofar as Applicant was seeking to argue in this period that it felt some of the document
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`production requests were overly broad or burdensome, or that they were unclear, or etc, it would
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`have been reasonable for Applicant to at least produce those documents that it reasonably
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`believed were being requested and were reasonable to produce given the question of relevance to
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`this action. Yet, again, Applicant failed to produce a single document, even though it is not
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`credible that they were not fully aware of the existence of at least tens, probably hundreds, of
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`documents that were being requested, were pertinent, and were ones that could be easily obtained
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`without undue burden. Yet Applicant continued to disingenuously argue that because of the
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`pending motions they were not obliged to produce any documents, and continued to
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`disingenuously pretend to be puzzled or confused by perfectly reasonable requests that they
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`could have at least made a reasonable good faith attempt at responding to.
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`By February 2015 when Applicant received Opposer's revised Request for Documents
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`that substantially limited the scope of the requests, ensured relevancy and no undue burden, they
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`then had no excuse for not acting on the requests and start producing documents. Certainly, there
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`were no pending motions, so that false excuse was not even on the table, and in any event there
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`had been no stay in these proceedings that tolled the time to respond to and act upon discovery
`requests (the February limiting of scope is exhibited in Exhibit G attached to Langdell decln.).
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`In April Applicant finally responded to some reasonable degree for the first time to
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`Opposer's Interrogatories first served on Applicant in August 2014. In these responses by
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`Applicant they admitted the existence of several documents that they confirmed were in their
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`possession and confirmed were ones they knew should be produced to Opposer. All of these
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`documents were ones that were among those requested in Opposer's Document Requests, and
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`thus were not only documents requested as long ago as August 2014, but were ones that
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`Applicant admitted should be produced to Opposer. Yet, still, Applicant refused to produce even
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`these documents. As at the date of drafting this motion, Opposer has repeatedly asked Applicant
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`to at least produce these documents referenced in its Interrogatory Responses, and yet Applicant
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`has failed to do so while simultaneously refusing to state why it is refusing to do so.
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`As at the time of drafting this motion, even if Applicant continues to deny receipt of the
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`document narrowing scope served in February, then even by their best argument Applicant has
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`been in possession of that document for at least 34 days, since it is undisputed that the document
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`was at worse case safely received on June 21, 2015. Yet despite repeated promises by Applicant
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`that it would act on this narrowing of scope and start producing documents at last, as of this date
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`Applicant has not only failed to respond in any reasonable and acceptable manner, and has not
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`only failed to still produce even a single requested document, but has specifically made such
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`obstructive comments as "99% certain not to happen in the next week."
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`Despite numerous email exchanges since September 2014, and despite two formal
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`telephone conferences to try to resolve this issue (January 30, 2015 and June 19, 2015) Applicant
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`still steadfastly refuses to properly participate in discovery and still refuses to even produce a
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`single document, let alone the several tens of documents that it identified itself in its
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`Interrogatory Responses, or the many more that it is fully aware are in its possession, are
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`reasonably and validly requested, are well within TTAB guidelines for discovery, are pertinent to
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`this action, and yet still they refuse to produce a single piece of paper.
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`Clearly, Opposer's narrowing of scope and clarification document served on Applicant in
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`February 2015 is a document that is entirely reasonable that Applicant should have responded to
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`by actually promptly producing all the documents requested therein. This document not only
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`narrowed the scope to ensure only documents that are reasonable to produce and are relevant are
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`being requested, but moreover the narrowing has in most cases a self-assuring mechanism in that
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`what is asked for is described as what is reasonable and proper to ask for. Further, it has now
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`been at least 34 days, even by Applicant's best argument, since Applicant received that
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`narrowing of scope and yet it has still not produced any documents or given any acceptable
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`responses to the Document Requests.
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`In short, Applicant should be compelled to produce all of the documents requested,
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`should not be permitted to tender any further excuses as to why it is not producing any given
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`document, and should be barred going forward from objecting to any of Opposer's document
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`requests. On a related note, the Board should please adjust the Trial Dates of this case
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`accordingly, so that the next steps do not commence until a reasonable period after Applicant has
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`actually fully completed discovery to the full and reasonable satisfaction of Opposer.
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`GROUNDS TO TEST THE SUFFICIENCY OF ADMISSION RESPONSES
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`It is a sad and stunning fact that the situation regarding Applicant's improper,
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`unacceptable and false responses to Opposer's First Request for Admissions has not changed
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`since Opposer filed its Amended Motion to Compel and Test Sufficiency in September 2014.
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`That is, all the issues with Applicant's first attempt at responding to the Admission Requests still
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`exist, and Applicant has refused to amend its Admission responses in any way.
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`Here is what Opposer stated as grounds for testing the sufficiency of Applicant's
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`responses in our September 2014 filing (with updates):
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`Review of Applicant’s replies to Opposer’s Initial Request for Admissions (attached as
`Exhibit F to Langdell decln.) reveals that Applicant is clearly being obstructive and refusing to
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`admit virtually anything, or to respond fully to virtually any of the requests. Worse, even where
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`it is clear perjury (or at least a clear falsehood) for Applicant to respond with “Denied,” still
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`Applicant outrageously gives this knowingly false response. This should not be tolerated by the
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`Board, and Opposer respectfully requests that Applicant be ordered to respond fully to each and
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`every request, not being permitted to respond “Denied” unless it is actually provably true, and
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`where Applicant disingenuously uses blanket terms such as “ambiguous” or “compound” (or
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`similar) as a basis for not responding at all, Applicant should be ordered to respond giving the
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`best answer that it genuinely can, justifying and explaining any perceived ambiguity in the
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`response, and so forth, rather than being permitted to not respond at all beyond objecting.
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`Following is a summary for each request (“REQ”).
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`REQ 1. It is patently false for Applicant to put “Denied” to knowledge prior to applying
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`for the Marks given it is public record that Applicant and Opposer were in litigation in the UK
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`for more than a year over the issues prior to said date, revealing a “Denied” response to clearly
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`be a lie. Applicant should be warned of the consequences of deliberately not telling the truth in
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`its responses.
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`REQ 2. See above for REQ 1.
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`REQ 3. See above for REQ 1.
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`REQ 4. There is no reasonable basis for objection (and none given), the request is not
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`compound, it is also not ambiguous, and to respond “Denied” is a blatant falsehood (Applicant
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`should be warned as to the consequences of being untruthful in its responses). Applicant should
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`be compelled to respond fully and to the further possible reasonable extent that it can.
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`REQ 8: Unacceptable response. TMBP 414(21) states that it is not necessarily a basis for
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`objecting to a request that the request may call for some form of legal conclusion. Further, the
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`request was not ambiguous or irrelevant.
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`REQ 9: Clearly false response since Applicant was fully aware of these two facts.
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`REQ 10: This is a clear absolute falsehood given that this fact was common knowledge to
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`Applicant and was extensively referenced in the UK proceedings that had been ongoing for a
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`year prior to Applicant's application date. The contract between the parties retroactive to 1993
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`also shows that Applicant had to know this fact for at least 10-15 years prior to the date in
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`question.
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`11
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`

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`REQ 11: As Mr. Phillips acknowledged in the January 30, 2015 call, Applicant was well
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`aware of this fact and at the time of the call committed to amend their response. Further, this
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`REQ is not ambiguous.
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`REQ 12: See REQ 11 above.
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`REQ 13: This REQ asks that Applicant confirm that the mark EDGE and the mark EDGE
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`are the same mark. And yet they deny it. This is clearly a deliberately false and unacceptable
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`response.
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`REQ 14: See REQ 13 - there is no reasonable basis for denying this and it is not
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`ambiguous.
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`REQ 15: This is a clear falsehood since the license in question is for Applicant to use the
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`mark EDGE for precisely the goods and services listed in its instant applications. Applicant
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`should be compelled to provide a true response of "Admitted."
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`REQ 16: This request is neither compound or ambiguous. The existence of the license
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`detailed in the contract that Applicant executed on October 15, 2004 is a matter of simple fact.
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`"Denied" therefore cannot be an acceptable response. One purpose of these REQs is to dispose of
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`issues that are not disputed between the parties so as to reduce the issues that the Board needs to
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`hear argument on, and decide on, at trial. This point should not be in dispute and should not be
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`an issue the Board needs to spend time on at Trial.
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`REQ 17: Per TMBP 414(21) the fact a response may call for some form of legal opinion
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`is not necessarily a basis for objection. However, here it is simple language that is being called to
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`confirm. The request is not ambiguous and it is most certainly not irrelevant since if (as Opposer
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`maintains) Applicant is only using the mark under a license and is therefore not entitled to
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`registration, and if that license is styled as 'perpetual' and thus has not ended nor can ever be
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`ended, then this request is absolutely central to this case. Applicant should be compelled to
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`answer honestly and acceptably.
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`REQ 18: See REQ 18 above since the same arguments apply here, too.
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`REQ 19: See REQ 18 above since the same arguments apply here, too.
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`REQ 20: See REQ 18 above since the same arguments apply here, too.
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`12
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`

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`REQ 19(b): This is patently obviously true and Applicant should be compelled to amend
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`its response to a truthful one. The objections are not valid.
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`REQ 20(b): See REQ 19(b) above since the same arguments apply here, too.
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`REQ 22: This response is unacceptable. It is not only common knowledge that Opposer's
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`goods and services are targeted at computer game playing consumers, but Applicant is well
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`aware of this fact having settled with Opposer's predecessor in rights in 1996 on the basis of this
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`fact, and having entered into a revised contract in 2004 on the basis of this fact, and having been
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`in litigation that was reliant on the truth of this fact for at least one year prior to applying for the
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`instant applications. This response is thus patently untrue and Applicant should be compelled to
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`give a true response.
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`REQ 23: It is a fact that Applicant received such a communication; at the very least
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`Applicant should be cautioned not to deliberately lie in its responses.
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`REQ 24: See REQ 23 above for the same arguments as to why this is unacceptable. There
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`is no reference to attorney work product here: what is referred to are inter-party communications.
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`REQ 34(b): Applicant denies that Opposer will be harmed if Applicant is granted either
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`of the Future Marks, even though it is a matter of record that the Future Marks are cited by the
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`USPTO against Opposer, preventing Opposer's marks from moving forward to publication.
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`Applicant's response of "Denied" is thus patently false, and