Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA925004
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`Filing date:
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`09/27/2018
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`91224726
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`Party
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`Correspondence
`Address
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`Defendant
`Albert G Carson IV
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`FRANCIS JOHN CIARAMELLA
`RICK RUZ PLLC
`300 SEVILLA AVENUE SUITE 301
`CORAL GABLES, FL 33134
`UNITED STATES
`francis@ruzlaw.com, rickruz@ruzlaw.com
`305-921-9326
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Opposition/Response to Motion
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`Francis John Ciaramella, Esquire
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`francis@ruzlaw.com
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`/Francis John Ciaramella/
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`09/27/2018
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`Attachments
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`Response to Motion for Summary Judgment.pdf(3870444 bytes )
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`

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`ÍIN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`____________________________
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`THE MARS GENERATION, INC.,
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`
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`Opposer,
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`v.
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`
`
`ALBERT G. CARSON IV,
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`
`
`____________________________
`
`
`Applicant.
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` Opposition No. 91224726
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`APPLICANT’S RESPONSE IN OPPOSITION TO
`OPPOSER’S MOTION FOR SUMMARY JUDGMENT
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`Pursuant to TBMP §528 and Fed. R. Civ. P. 56, the Applicant, ALBERT G. CARSON
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`
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`IV (hereafter “Applicant”), respectfully submits this Brief in Opposition to the Motion for
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`Summary Judgment (hereafter “Motion”) filed by THE MARS GENERATION, INC. (hereafter
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`“Opposer”). Applicant requests that the Trademark Trial and Appeal Board deny Opposer’s
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`Motion for the reasons set forth below.
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`FACTUAL BACKGROUND
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`Applicant is the owner of Application Nos. 86/494,807 and 86/516,111 for the marks I
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`AM THE MARS GENERATION and WE ARE THE MARS GENERATION (hereafter the
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`“Applicant’s Marks”).
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`On November 4, 2015, Opposer filed the instant Opposition to oppose registration of the
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`Application, alleging that the Application was confusingly similar to Opposer’s marks for
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`MARS GENERATION (hereafter, “Opposer’s Marks”), that Applicant’s marks were void ab
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`1
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`

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`initio, and that Applicant’s Marks are merely descriptive. Applicant filed an Answer on
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`December 14, 2015.
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`Applicant filed responses to Opposer’s First Request for Admissions on October 19,
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`2016, and to Opposer’s First Set of Interrogatories, and First Requests for Production of
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`Documents on October 28, 2016.
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`Opposer raised several issues, which Applicant attempted to be resolve in good faith.
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`Thereafter, Applicant served Revised Responses to Opposer’s First Request for Admissions,
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`First Set of Interrogatories, and First Requests for Production of Documents on April 6, 2017.
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`Opposer then served Opposer’s Second Request for Admissions and Second Set of
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`Interrogatories on Applicant. Applicant filed responses to the same on July 6, 2017. Opposer
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`claims that these additional responses further complicate the instant Opposition. Thereafter,
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`Opposer filed a Motion to Compel on November 17, 2017.
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`On April 30, 2018, the Board granted Opposer’s motion to the extent that Applicant was
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`ordered to serve on Opposer: an amended written and verified response to Interrogatory No. 1(c)
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`as written, without objections; and amended written responses to Requests for Admission 1, 2,
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`99, 100, 108 and 109.
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`Thereafter, on May 30, 2018, Applicant served amended Requests for Admission 1, 2,
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`99, 100, 108, and 109, and a response to Interrogatory 1(c) on Opposer. See Attached Exhibits
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`A, B, and C.
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`Opposer then filed the instant Motion for Summary Judgment on August 28, 2018.
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`Applicant requests that Opposer’s Motion for Summary Judgment be denied.
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`2
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`ARGUMENT
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`To prevail on a motion for summary judgment, the moving party must demonstrate that it
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`is entitled to judgment as a matter of law, and that there are in dispute no genuine issues of
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`material fact. Fed. R. Civ. P. Rule 56(c). Copelands’ Enterprises, Inc. v. CNV, Inc., 945 F.2d
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`1563, 1565 (Fed. Cir. 1991). The nonmoving party is entitled to have all disputed inferences
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`resolved in its favor. Opryland USA Inc. v. Great American Music Show, Inc., 970 F.2d 847, 850
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`(Fed. Cir. 1992).
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`Opposer bears the burden of proving its claims in its Notice of Opposition: that the
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`Applicant’s Marks are confusingly similar to the Opposer’s Mark, and that Opposer has used its
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`mark in US commerce before Applicant. Sanyo Watch Co., Inc. v. Sanyo Elec. Co., Ltd., 691
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`F.2d 1019, 1022 (Fed. Cir. 1982). Furthermore, the Opposer also bears the burden to
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`affirmatively establish that the Applicant’s Marks are void for lack of use in commerce.
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`Thus, Opposer has an affirmative burden to show, by competent evidence, that it can
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`sustain its burden of proving at trial its claim. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.
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`Ct. 2548, 91 L. Ed. 2d 265, 4 Fed. R. Serv. 3d 1024 (1986) (the party opposing a motion for
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`summary judgment must “make a showing sufficient to establish the existence of an element
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`essential to that party’s case, and on which that party will bear the burden of proof at trial”).
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`Accord, Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 254, 255, 106 S. Ct. 2505, 91 L. Ed. 2d
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`202, 4 Fed. R. Serv. 3d 1041 (1986). To show that there is in dispute a “genuine” issue of
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`“material” fact, Opposer “must do more than simply show there is some metaphysical doubt as to
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`the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586,
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`106 S. Ct. 1348, 89 L. Ed. 2d 538, 4 Fed. R. Serv. 3d 368 (1986).
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`3
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`I.
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`The Relevant DuPont Factors Demonstrate No Likelihood of Confusion
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`Determination of the existence of a likelihood of confusion is based on an analysis of the
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`probative factors set for in In re E. I. DuPont DeNemours & Co., 476 F.2d 1357, 1361 (CCPA
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`1973). See Shen Mfg. Co., Inc. v. The Ritz Hotel Ltd., 393 F.3d 1241 (Fed. Cir. 2004). Those
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`factors are:
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`(1) The similarity or dissimilarity of the marks in their entireties
`as to appearance, sound, connotation and commercial
`impression;
`(2) The similarity or dissimilarity of the nature of the goods or
`services as described in an application or registration or in
`connection with which a prior mark is in use;
`(3) The similarity or dissimilarity of established, likely-to-continue
`trade channels;
`(4) The conditions under which and buyers to whom sales are
`made, i.e. “impulse” vs. careful, sophisticated purchasing;
`(5) The fame of the prior mark (sales, advertising, length of use);
`(6) The number and nature of similar marks in use on similar
`goods;
`(7) The nature and extent of any actual confusion;
`(8) The length of time during and conditions under which there has
`been concurrent use without evidence of actual confusion;
`(9) The variety of goods on which a mark is or is not used (house
`mark, “family” mark, product mark);
`(10) The market interface between Applicant and the owner of a
`prior mark:
`a. A mere “consent” to register or use;
`b. Agreement provisions designed to preclude confusion, i.e.
`limitations on conditnued use of the marks by each party;
`c. Assignmetn of mark, application, registration and good will of
`the related business;
`d. Laches and estoppel attributable to owner of prior mark and
`indicative of lack of confusion;
`(11) The extent to which Applicant has a right to exclude other
`from use of its mark on its goods;
`(12) The extent of potential confusion, i.e., whether de minimis
`or substantial;
`(13) Any other established fact probative of the effect of use. Id.
`(emphasis added).
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`4
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`A. Issues of Fact Exist in the Instant Matter
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`In any summary judgment proceeding, “the non-moving party is required to introduce
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`evidence beyond mere pleadings to show that there is an issue of material fact concerning ‘an
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`element essential to the party’s case, and on which that party will bear the burden of proof at
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`trial.’” Nordco A.S. v. Ledes, 44 U.S.P.Q.2d 1120, 1122 (SDNY 1997). Here, numerous issues
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`of material fact exist, and Applicant possesses evidence demonstrating that the marks in question
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`are not likely to cause confusion, and that the parties’ respective marks are easily distinguishable.
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`Therefore, there exist issues of material fact concerning elements essential to the Opposer’s case,
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`specifically whether the Applicant’s marks are likely to cause confusion or mistake amongst the
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`consuming public when compared to the Opposer’s marks, and whether Opposer’s marks were
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`used prior to the Applicant’s marks in US commerce.
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`“Because of the factual nature of trademark disputes, summary judgment is generally
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`disfavored in the trademark arena.” KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.,
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`408 F.3d 596, 602 (9th Cir. 2005). Moreover, if the evidence is such that a jury could return a
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`verdict for the non-moving party, summary judgment is not appropriate. Anderson v. Liberty
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`Lobby, Inc., 477 U.S. 2242, 243-43 (1986).
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`
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`Here, the dispute about material facts, namely whether the marks are confusingly similar
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`and whether Opposer has priority of use, is genuine. Moreover, it does not appear that Opposer,
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`in filing its Motion for Summary Judgment, discusses priority or a likelihood of confusion with
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`respect to Opposer’s and Applicant’s marks. Instead, Opposer only discusses the issues of
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`whether Applicant has used its marks in commerce1 As such, it is very likely that a jury could
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`1 It is noted that in filing its Notice of Opposition on November 4, 2015, the Opposer also sought to oppose
`Applicant’s Marks based upon descriptiveness (section 2(e)(1)) and priority and a likelihood of confusion (section
`2(d)), both of which are not discussed in the motion for summary judgment.
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`5
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`easily find that the issues of fact favor the Applicant. Accordingly, Opposer’s Motion for
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`Summary Judgment should be denied.
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`II.
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`There Exists an Issue Of Material Fact as to Whether Applicant has Used the
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`Opposed Marks in Commerce
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`In its Motion for Summary Judgment, Opposer claims that there was no use of either of
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`the opposed applications in commerce before the respective filing dates. Motion for Summary
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`Judgment at 8. Moreover, the Opposer states that the record indisputably demonstrates that
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`Applicant has never used either of its marks in commerce. Id. This simply is not the case.
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`As stated above, in a motion for summary judgment, “the non-moving party is required to
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`introduce evidence beyond mere pleadings to show that there is an issue of material fact
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`concerning ‘an element essential to the party’s case, and on which that party will bear the burden
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`of proof at trial.’” Nordco A.S. v. Ledes, 44 U.S.P.Q.2d 1120, 1122 (SDNY 1997). Here, the
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`Applicant can demonstrate that there is an issue of material fact as to whether the Applicant has
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`used the opposed marks in commerce.
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`Under 15 U.S.C. §1051(a), a “mark must be in use in commerce on or in connection with
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`all the goods and services listed in the application as of the application filing date.” 15 U.S.C.
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`§1127 defines the term “use in commerce” for services as occurring when the mark “is used or
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`displayed in the sale or advertising of services and the services are rendered in commerce, or the
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`services are rendered in more than one State or in the United States and a foreign country and the
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`person rendering the services is engaged in commerce in connection with the services.”
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`Here, Opposer argues that Applicant has not met the above definition. Motion for
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`Summary Judgment at 10-11. Even if the Applicant is unable to identify an instance in which he
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`was unable to render license services set forth in the opposed applications, this does not mean
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`6
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`that Applicant has not used the marks within meaning of the Lanham Act. Thus, there exists an
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`issue of material fact, and Opposer’s Motion for Summary Judgment must be denied.
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`At least as early as January 15, 2015, Applicant had posted the mark I AM THE MARS
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`GENERATION and WE ARE THE MARS GENERATION on the Internet as an advertisement
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`of already-available services. Even if those services were not purchased, the services were
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`present in search engine optimization and marketing. Applicant’s January 15, 2015 use of the
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`two marks was sufficient for creating priority. “Prominent use of the mark in pre-sales activity
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`directed at potential customers should suffice to create a priority date, certainly as to a knowing
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`competitor who rushes in to make an attempted preemptive first use, and probably even as to a
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`subjectively ignorant competitor.” McCarthy on Trademarks and Unfair Competition, §16:12,
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`p.. 16-27 (4th ed., 2009). Moreover, “for the purposes of priority of use under common law of
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`Lanham Act sect. 43(a) or 2(d) priority dispute (which is at issue in the present case), some form
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`of pre-sales publicity or sales solicitation may suffice to prove priority over a rival user. Id.,
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`§15:13, p. 16-27.
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`On April 24, 2017, Applicant was also able to produce to Opposer evidence of such pre-
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`sales activity through use of the “Way Back Machine,” an Internet archive, demonstrating use of
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`the marks as far back as 2014. See Exhibit D. A trademark is in use “when the designation is
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`displayed or otherwise made known to prospective purchaser in the ordinary course of business
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`in a manner that associates the goods, services, or business of the user. Restatement (3rd) of
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`Unfair Competition, §18.
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`“The manner of use must be calculated to cause prospective purchasers to associate the
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`designation with the goods, services, or business of the user…the use of a designation in pre-
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`sales solicitations, presentations, or other advertising can result in the creation of good will
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`7
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`symbolized by the designation even before any actual sales…[s]uch pre-sales activity can qualify
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`as trademark use if the use is calculated to produce the required association between the mark
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`and the user’s goods [or services] and is done in the ordinary course of business.” Id.
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`Consequently, it can be said that not only has Applicant used its marks as early as stated,
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`but that such use existed when Applicant filed the applications for the respective marks pursuant
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`to Section 1(a) of the Lanham Act. Moreover, this rebuts the Opposer’s claims that such non-use
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`at the time of filing renders the applications void ab initio. Motion for Summary Judgment at 12.
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`In the very least, such disputes of material fact require that Opposer’s Motion for Summary
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`Judgment be denied.
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`III. Applicant Has Complied with the Board’s 4/30/2018 Order
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`Opposer states that Applicant has not complied with the Board’s 4/30/2018 Order.
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`Motion for Summary Judgment at 14-15. Within the period so ordered by the Board, and
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`without objection to the interrogatory, Applicant amended and responded to the interrogatory,
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`serving it upon Opposer on May 30, 2018. See Exhibit A. The Applicant also served amended
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`admissions requests the same day. See Exhibits B and C. Now, Opposer argues that these
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`responses are in violation of the Board’s Order. This, again, simply is not the case. Opposer
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`seems to make overtures to the Board’s inherent authority to sanction Applicant; however, here,
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`entering default judgment against Applicant would be an unduly harsh remedy, especially when
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`Applicant has complied with the Order.
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`Here, Applicant has evidence that shows that it is the prior user, that it has used its mark
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`in commerce, and that it did so at the time of filing the respective marks. Consequently, because
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`of the existence of material facts involving the same, Opposer’s motion must be denied.
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`8
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`CONCLUSION
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`In summation, genuine issues of material fact clearly exist as to a likelihood of confusion
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`arising from the parties’ use of the respective marks, as well as Applicant’s use of its marks in
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`commerce.. The facts with respect to these issues are such that a jury could easily rule in favor
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`of the Applicant.
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`WHEREFORE, the Applicant respectfully requests that the Trademark Trial and Appeal
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`Board enter an Order denying Opposer’s Motion for Summary Judgment, and grating such other
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`and further relief as the Board deems just and proper.
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`By:____/Francis John Ciaramella/_____
`Francis John Ciaramella, Esq.
`Florida Bar No. 111927
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`
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`Rick Ruz, PLLC
`Counsel for the Applicant
`300 Sevilla Avenue
`Suite 301
`Coral Gables, Florida 33134
`Telephone No. (305) 921-9326
`Facsimile No. (888) 506-2833
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`Dated: September 27, 2018
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`9
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and complete copy of the foregoing Applicant’s Response in
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`Opposition to Opposer’s Motion for Summary Judgment has been served on the following via
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`email:
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`Marsha Gentner
`DYKEMA GOSSETT, PLLC
`1301 K Street, NW, Suite 1100 West
`Washington, D.C. 20005
`mgentner@dykema.com
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`By:____/Francis John Ciaramella/_____
`Francis John Ciaramella, Esq.
`Florida Bar No. 111927
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`Dated: September 27, 2018
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`Exhibit A
`Exhibit A
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`
`____________________________
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`SPACE STEM FUTURE, INC.,
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`
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`Opposer,
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`v.
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`ALBERT G. CARSON IV,
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`
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`____________________________
`
`
`Applicant.
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` Opposition No. 91224726
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`APPLICANT’S REVISED RESPONSE TO
`OPPOSER’S FIRST SET OF INTERROGATORIES
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`Pursuant to Rule 2.120 of the Trademark Rules of Practice and Rule 33 of the Federal
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`
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`Rules of Civil Procedure, Applicant, ALBERG G. CARSON IV (“Applicant”), through his
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`undersigned counsel, hereby revises and responds to Opposer’s First Set of Interrogatories
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`propounded by Opposer, SPACE STEM FUTURE, INC. (“Opposer”) as follows:
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`GENERAL OBJECTIONS
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`In addition to the objections separately set forth in response to certain of the
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`Interrogatories, Applicant’s responses are provided subject to the following General Objections,
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`which are hereby expressly incorporated by reference into each and every one of the specific
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`responses below. The failure to include at this time any general or specific objection to an
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`Interrogatory is neither intended as, nor shall in any way be deemed, a waiver of Applicant’s
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`right to assert that or any other objection at a later date.
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`1.
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`Applicant objects to Opposer’s instructions and definitions to the extent they
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`require disclosure of information protected by the attorney-client privilege and/or the attorney
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`work product doctrine. Furthermore, Applicant objects to the interrogatories to the extent they
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`request information from any and all agents, attorneys, investigators, consultants, experts, and
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`other representatives Applicant has retained.
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`2.
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`Applicant objects to each and every interrogatory to the extent it calls for
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`information to which Opposer has equal or greater access than Applicant.
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`3.
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`Applicant objects to each and every interrogatory to the extent it requires Applicant
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`to obtain and compile information from third parties.
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`4.
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`Applicant objects to Opposer’s definition of "you" and "your" to the extent Opposer
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`seeks to obtain information outside Applicant’s personal knowledge and/or seeks information
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`protected by the attorney-client privilege and or work product doctrine.
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`5.
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`Applicant objects to these interrogatories to the extent they purport to impose duties
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`and obligations which exceed or are different from those imposed by the Federal Rules of Civil
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`Procedure or court orders in this action.
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`OBJECTIONS AND RESPONSES
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`1. State the earliest date on which Applicant will rely in this proceeding to establish any
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`rights in Applicant's Marks vis-a-vis Opposer, and state in detail the basis for Applicant's
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`claim of rights in Applicant's Marks as of that date, including:
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`(a) a description of the manner of use of Applicant's Marks as of that date
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`(e.g., promotional or advertising materials, store/office signage, imprinted on the goods, on
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`labels or tags for the goods, on packaging for the goods, etc.);
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`(b) the identity of each person involved in any way in such use, including, but not limited to
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`the identity of each witness who can testify on personal knowledge as to such use;
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`(c) the identification of each product and/or service in connection with which
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`300 Sevilla Avenue, Suite 301, Coral Gables, FL 33134 • Telephone (305) 921-9326 • Facsimile (888) 506-2833
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`the mark was used on that date; and
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`(d) the identification of each document which evidences or supports such claim of use as of
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`that date.
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`RESPONSE: Applicant claims a date of first use of at least as early as January 1, 2015, for the
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`trademark I AM THE MARS GENERATION, and a date of first use of at least as early as
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`January 15, 2015, for the trademark WE ARE THE MARS GENERATION. Applicant’s dates
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`of first use of the I AM THE MARS GENERATION and WE ARE THE MARS GENERATION
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`marks are in conjunction with offers for: advertising and/or licensing services, sponsorship,
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`speaking engagement services, and charitable donations.
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`Pursuant to Federal Rule of Civil Procedure 33(d), Applicant herby states that to the
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`extent that Applicant is in possession of information responsive to this interrogatory, Opposer
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`can ascertain that information from the following references as readily as the Applicant can
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`ascertain the same information. Applicant directs Opposer to Interrogatory No. 1(a) and 1(d) of
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`Opposer’s First Set of Interrogatories, which by narrative describes: the manner of use of
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`Applicant’s marks as of that date (e.g., promotional or advertising materials, store/office signage,
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`imprinted on the goods, on labels or tags for the goods, on packaging for the goods, etc.), and
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`documentation to support the same. Applicant states that further information responsive to this
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`request will be provided in the form of additional documents showing representative samples of
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`its marketing, promotional, and sales materials associated with the Applicant’s Marks.
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`Albert G. Carson IV (i.e., Applicant) would have first-hand knowledge of use of the same
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`trademarks, and is contactable only through the undersigned counsel.
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`Applicant’s use of Applicant’s Marks includes promotional and advertising materials,
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`printing of the Applicant’s Marks on various goods, as well as websites promoting the services
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`offered under the Applicant’s Marks. Applicant’s goods and services include, without limitation:
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`Licensing of advertising slogans and cartoon characters; Athletic apparel, namely, shirts, pants,
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`jackets, footwear, hats and caps, athletic uniforms; Bathing suits; Hats; Leggings; Pants; Shirts;
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`Shorts; Socks; Sweaters; Sweatpants; T-shirts; Tops; Educational and entertainment services,
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`namely, providing motivational and educational speakers; Educational and entertainment
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`services, namely, providing motivational speaking services in the field of space, space flight,
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`space exploration, and space programs; books; patches; and wristbands.
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`2. Identify each product and service with which either and/or both of Applicant's
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`Marks have been used, and with respect to each such product and service identify:
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`(a) the period of time during which Applicant's Marks have been used with said product or
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`service;
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`(b) if the use was by a person other than Applicant, identify that person, and state in detail
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`the basis upon which Applicant claims such use inures, or will inure, to its benefit;
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`(c) the sales, on an annual basis, in terms of dollar volume and units (for a
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`product), of such product and services from the date of first use of Applicant's Marks in
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`connection with such product/service, through the present;
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`(d) each price charged by and/or paid to Applicant for such product/service; and
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`(e) each state in which such product/service has been sold (or for a service, such service has
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`been rendered) under or in connection with Applicant's Marks.
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`RESPONSE: Applicant objects on the grounds that the interrogatory is overly broad and
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`unduly burdensome. Applicant objects to this interrogatory to the extent it calls for the
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`production of information related to, concerning, or containing confidential, proprietary business
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`information, trade secrets, or other confidential research, development, or commercial
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`Page 4 of 19
`RICK RUZ, PLLC
`300 Sevilla Avenue, Suite 301, Coral Gables, FL 33134 • Telephone (305) 921-9326 • Facsimile (888) 506-2833
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`information of Applicant or its employees absent the entry of a suitable protective order.
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`Notwithstanding the objection, Applicant responds as follows: as stated in response to Opposer’s
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`First Interrogatory, the trademarks I AM THE MARS GENERATION and WE ARE THE
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`MARS GENERATION are used in connection with “Licensing of advertising slogans and
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`cartoon characters.” Applicant also uses the mark MARS GENERATION in connection with
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`“Educational and entertainment services, namely, providing motivational and educational
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`speakers; Educational and entertainment services, namely, providing motivational speaking
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`services in the field of space, space flight, space exploration, and space programs.”
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`Applicant claims a date of first use of at least as early as January 15, 2015, for both the
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`trademarks I AM THE MARS GENERATION and WE ARE THE MARS GENERATION. The
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`Applicant also claims a date of first use of the MARS GENERATION for “Educational and
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`entertainment services, namely, providing motivational and educational speakers; Educational
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`and entertainment services, namely, providing motivational speaking services in the field of
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`space, space flight, space exploration, and space programs” of at least as early as January 2005.
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`Applicant’s use of the same has been continuous.
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`The Applicant is not aware of any other third persons that used the respective marks in
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`connection with the respective goods/services enumerated above.
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`Pursuant to Federal Rule of Civil Procedure 33(d), Applicant herby states that to the
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`extent that Applicant is in possession of information responsive to this interrogatory, Opposer
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`can ascertain that information from the following references as readily as the Applicant can
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`ascertain the same information. Applicant directs Opposer to Interrogatory No. 2(c), 2(d), and
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`2(e) of Opposer’s First Set of Interrogatories, which by narrative describes: the revenue derived
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`by use of the Applicant’s Marks, as well as the states in which the respective services were sold.
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`Page 5 of 19
`RICK RUZ, PLLC
`300 Sevilla Avenue, Suite 301, Coral Gables, FL 33134 • Telephone (305) 921-9326 • Facsimile (888) 506-2833
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`Applicant states that further information responsive to this request will be provided in the form
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`of additional documents showing revenue derived from the goods or services sold under the
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`Applicant’s Mark, and in which states this occurred. Applicant further states that he has done
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`roughly $7,500 in sales, which consists primarily of online sales and speaking engagements.
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`3. Identify each survey, search or other investigation conducted and/or obtained with
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`respect to Opposer's Mark(s), any of Applicant's Marks, and/or the term "MARS
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`GENERATION" as used as a trademark or part of a trademark, and/or the actual,
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`potential, or intended market, and/or the actual, potential, or intended customers of, or
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`consumers for, the goods and/or services to be offered for sale and/or sold under or in
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`connection with any of Opposer's Mark(s) and/or Applicant's Marks.
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`RESPONSE: Applicant objects on the grounds that the request is overly broad and unduly
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`burdensome. Subject to this objection, and without waiving same, the Applicant responds as
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`follows: to the best of Applicant’s knowledge, no such search reports, surveys, polls, or
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`investigations were conducted, and no such documents are in existence.
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`4. (a) State the annual volume of advertising under and/or in connection with
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`Applicant's Marks in connection with the services set forth in the opposed applications for
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`each year since such advertising commenced.
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`(b) Identify each medium in which Applicant's Marks have been listed, advertised, and/or
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`promoted in connection with the services identified in the opposed applications, and/or in
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`which the products and/or services sold under Applicant's Marks have
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`been listed, advertised, promoted, offered for sale and/or sold.
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`RESPONSE: Applicant objects on the grounds that the interrogatory is overly broad and unduly
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`burdensome. Applicant objects to this interrogatory to the extent it calls for the production of
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`Page 6 of 19
`RICK RUZ, PLLC
`300 Sevilla Avenue, Suite 301, Coral Gables, FL 33134 • Telephone (305) 921-9326 • Facsimile (888) 506-2833
`
`

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`information related to, concerning, or containing confidential, proprietary business information,
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`trade secrets, or other confidential research, development, or commercial information of
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`Applicant or its employees absent the entry of a suitable protective order. Notwithstanding the
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`objection, Applicant responds as follows: Pursuant to Federal Rule of Civil Procedure 33(d),
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`Applicant herby states that to the extent that Applicant is in possession of information responsive
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`to this interrogatory, Opposer can ascertain that information from the following references as
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`readily as the Applicant can ascertain the same information. Applicant directs Opposer to
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`Interrogatory No. 4 (a) and 4(b) of Opposer’s First Set of Interrogatories, which by narrative
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`describes: the annual amount of money spent in advertising Applicant’s Marks, and the mediums
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`through which the same are advertised. Applicant states that further information responsive to
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`this request will be provided in the form of additional documents showing evidence of money
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`spent in marketing, promoting, and advertising for Applicant’s Marks, as well as a list of the
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`mediums used.
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`5. With respect to each product and service in connection with which Applicant has
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`licensed another person to use either or both of Applicant's Marks, identify each broker,
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`sales representative, distributor, wholesaler, each retail outlet, trade show, catalog, and
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`Internet web site and/or other electronic means, to and/or through which such product
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`and/or service has been advertised, promoted, offered for sale, distributed and/or sold
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`under or in connection with either or both of Applicant’s Marks.
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`RESPONSE: Applicant objects on the grounds that the interrogatory is overly broad and unduly
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`burdensome. Applicant objects to this interrogatory to the extent it calls for the production of
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`information related to, concerning, or containing confidential, proprietary business information,
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`trade secrets, or other confidential research, development, or commercial information of
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`Page 7 of 19
`RICK RUZ, PLLC
`300 Sevilla Avenue, Suite 301, Coral Gables, FL 33134 • Telephone (305) 921-9326 • Facsimile (888) 506-2833
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`Applicant or its employees absent the entry of a suitable protective order. Notwithstanding the
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`objection, Applicant responds as follows: Applicant advertises, promotes, offers for sale,
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`distributes, and/or sells its goods/services in connection with Applicant’s Marks through its
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`website: www.nasablueberry.com.
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`6. For each service in connection with which Applicant is suing either of Applicant’s
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`Marks, identify the channels of trade through which such service has been offered for sale
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`and/or sold, including but not limited to a general description of the type of customers
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`(both direct and ultimate customers) to whom Applicant advertises, promotes, offers,
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`provides and/or sells Applicant’s services in connection with Applicant’s Marks.
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`RESPONSE: Applicant objects on the grounds that the interrogatory is overly broad and unduly
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`burdensome. Applicant objects to this interrogatory to the extent it calls for