Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1032022
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`Filing date:
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`01/28/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91235429
`
`Party
`
`Correspondence
`Address
`
`Defendant
`Platform Beers LLC
`
`STEVEN E LAURIDSEN
`TUCKER ELLIS LLP
`950 MAIN AVE, STE 1100
`CLEVELAND, OH 44113-7213
`UNITED STATES
`trademarks@tuckerellis.com, carlos.garritano@tuckerellis.com,
`steven.lauridsen@tuckerellis.com, heather.barnes@tuckerellis.com, bri-
`an.brookey@tuckerellis.com
`216-696-3952
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Reply in Support of Motion
`
`Brian K. Brookey
`
`trademarks@tuckerellis.com, steven.lauridsen@tuckerellis.com, bri-
`an.brookey@tuckerellis.com, carlos.garritano@tuckerellis.com
`
`Signature
`
`Date
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`/Brian K. Brookey/
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`01/28/2020
`
`Attachments
`
`PLATFORM - Reply Brief Supporting Motion To Compel.pdf(312362 bytes )
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`

`

`TRADEMARK
`Docket No. 015397-000016
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`BOTTLE LOGIC BREWING LLC,
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` Plaintiff/Bottle Logic,
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` v.
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`PLATFORM BEERS LLC,
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` Defendant/Applicant.
`
`
`
`
`Opposition No. 91235429
`
`Serial No. 87/050,742
`Mark: PLATFORM BEER CO. & Design
`Filing Date: May 26, 2016
`Published: March 7, 2017
`
`
`Serial No. 87/056,210
`Mark: PLATFORM BEER CO. & Design
`Filing Date: June 1, 2016
`Published: March 7, 2017
`
`
`
`
`APPLICANT’S REPLY BRIEF IN FURTHER SUPPORT OF MOTION TO COMPEL
`RESPONSES TO INTERROGATORIES AND REQUESTS FOR PRODUCTION, AND
`TO DETERMINE SUFFICIENCY OF RESPONSES TO REQUESTS FOR ADMISSION
`
`
`
`
`I.
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`
`
`INTRODUCTION
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`Bottle Logic’s opposition to Platform’s motion to compel and to determine the
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`sufficiency of responses to requests for admission demonstrates why the Board should grant
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`Platform’s motion. In regrettable language, Bottle Logic attacks as “ridiculous” Platform’s
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`attempts to obtain either facts supporting Bottle Logic’s contentions, or a representation by
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`Bottle Logic that it will not make such contentions. Bottle Logic also either misapprehends or
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`mischaracterizes the cases on which it relies. Bottle Logic cannot continue to prosecute a case
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`while refusing to participate in good faith in the discovery process.
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`
`
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`1
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`

`

`
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`II.
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`THE BOARD SHOULD ORDER BOTTLE LOGIC TO PRODUCE DOCUMENTS
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`RESPONSIVE TO REQUEST FOR PRODUCTION NO. 28.
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`Bottle Logic stands on its refusal to produce documents supporting or refuting its claims
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`and defenses, claiming that it cannot possibly be expected to know what evidence in its
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`possession supports its arguments. Platform’s request, of course, is very similar to what already
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`is required by Rule 26(a)(1)(A)(ii) of the Federal Rules of Civil Procedure: identification or
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`production of “all documents, electronically stored information, and tangible things that the
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`disclosing party has in its possession, custody, or control and may use to support its claims or
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`defenses, unless the use would be solely for impeachment.” If, as Bottle Logic contends,
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`Platform’s use of the word “all” renders the request overly broad and the subject of the request
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`requires Bottle Logic to divulge its “entire legal theory,” then the Federal Rules of Civil
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`Procedure suffer from those same defects. Unless and until those Rules are amended or repealed,
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`Bottle Logic must respond to the request as framed.
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`Bottle Logic argues that the request is overly broad because it “might well encompass
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`irrelevant information.” But Bottle Logic does not explain how documents that support its
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`claims, or documents that contradict those claims, could possibly be “irrelevant.” Again, the text
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`of Rule 26 is instructive: “Parties may obtain discovery regarding any nonprivileged matter that
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`is relevant to any party’s claim or defense and proportional to the needs of the case….”
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`Fed.R.Civ.P. 26(b)(1). By definition, a request for documents “supporting or refuting” a party’s
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`claim or defense is relevant to such a claim or defense.
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`Finally, Bottle Logic cites a series of cases for the proposition that requests for all
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`documents “relating to” or “concerning” a topic are overly broad. See Carter v. Archdale Police
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`
`
`
`2
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`

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`Dep’t, 2014 WL 1774471, at *5 (M.D.N.C.) May 2, 2014) and Sonnino v. Univ. of Kan. Hosp.
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`Auth., 2004 WL 764085, at *5 (D. Kan. April 8, 2004). The problem for Bottle Logic is that
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`Platform’s request does not ask for all documents “relating to” or “concerning” a particular topic.
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`It is far narrower, asking for documents that either support or refute Bottle Logic’s claims. Thus,
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`each of the cases on which Bottle Logic relies is inapposite.
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`There is no basis for Bottle Logic’s refusal to produce documents that go to the heart of
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`its claims, and Bottle Logic should be ordered to provide those documents to Platform.
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`III. THE
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`BOARD
`
`SHOULD
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`COMPEL
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`PROPER
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`RESPONSES
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`TO
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`INTERROGATORY NOS. 8, 11, 13, AND 14.
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`In its moving papers, Platform argued that proper discovery responses are essential to
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`prevent trial by ambush. Bottle Logic’s response is to argue that trial by ambush is exactly its
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`strategy, complaining that having to provide the factual bases for its claims would amount to a
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`“sneak peek” of its arguments on the merits. 50 TTABVUE 5.
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`As Platform has explained, the purpose of discovery is to provide just such a “sneak
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`peek” by obtaining the factual and evidentiary support for a party’s claims. Bottle Logic tries to
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`have it both ways, arguing that it does not have to provide any evidence as to any DuPont factor,
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`while reserving the right to spring new theories on Platform in its trial brief. See id. The issues
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`before the Board are simple: either Bottle Logic must provide the factual bases for its
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`contentions as to each DuPont factor that is the subject of the disputed interrogatories, or Bottle
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`Logic must represent that it will never argue those factors. Bottle Logic should not be permitted
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`to withhold information in its possession, only to provide it for the first time at trial.
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`
`
`
`3
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`

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`IV.
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`BOTTLE LOGIC’S OPPOSITION CONFIRMS THAT THE BOARD SHOULD
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`DEEM THE DISPUTED REQUESTS FOR ADMISSION ADMITTED
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`Attempting to defend its refusal to admit or deny straightforward requests for admission,
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`Bottle Logic argues that its ability to admit or deny those requests “hinges on the words
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`Applicant selected in its requests.” 50 TTABVUE 6. Platform agrees. It asked Bottle Logic to
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`admit whether certain marks and other third-party uses “depict” lightbulbs. The word “depict”
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`means, among other things, to “represent by or as if by painting; portray; delineate”; or “to
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`represent by or as if by a picture.” See https://www.dictionary.com/browse/depict?s=t and
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`https://www.merriam-webster.com/dictionary/depict.
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`There can be no question that each of the designs at issue in the disputed requests for
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`admission “depicts” – i.e., includes a picture or other representation of – a lightbulb. The word
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`“depict” is not, as Bottle Logic posits, “sloppy,” nor does it matter whether or not the depictions
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`are “stylized” or contain additional matter. Despite Bottle Logic’s protestations to the contrary,
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`in opposing Platform’s motion for summary judgment Bottle Logic had no difficulty
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`acknowledging that cited third-party uses depicted lightbulbs. Bottle Logic argued that “the
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`existence of third party registrations for or use of light bulbs, and the effect of such use and
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`registrations on the scope of Bottle Logic’s rights in its mark” presented issues inappropriate for
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`resolution on summary judgment. Bottle Logic also argued that the existence of third-party uses
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`of light bulb designs is itself an issue of fact,” and that evidence of “beer logos that incorporate
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`light bulbs does not meet the high burden of proof necessary to prevail in a summary judgment
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`proceeding.” Bottle Logic also argued that “some designs that incorporate light bulb designs are
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`more similar than others, as is the case in the present case.” Bottle Logic’s Combined Reply
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`Brief in Support of its Motion for Partial Summary Judgment and Opposition and Response to
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`
`
`
`4
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`

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`Applicant’s Cross-Motion for Summary Judgment, filed March 21, 2019 (36 TTABVUE), at
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`p. 7 (emphasis added).
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`Bottle Logic does not attempt to explain why it recognized previous registrations and
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`third-party uses as depicting lightbulbs for purposes of summary judgment briefing, but is now
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`incapable of doing so in response to discovery.
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`In a last-ditch effort to justify its refusal to respond properly to requests for admission,
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`Bottle Logic cites a Federal Circuit case for the proposition that “the term ‘depict’ is an exclusive
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`closed-ended term that does not include additional unrecited elements or elements [sic].” order.
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`50 TTABVUE 6, citing Mars Inc. v. H.J. Heinz Co., 377 F.3d 1369, 1376, 71 USPQ2d 1837,
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`1843 (Fed. Cir. 2004). There are two fundamental problems with Bottle Logic’s argument. First,
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`the Mars case on which it relies involves claim construction in a patent infringement case, and
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`has no relevance to this opposition proceeding. And second, notwithstanding Bottle Logic’s
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`misleading cite, Mars did not construe the term “depict” at all. In fact, that word does not appear
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`in any context anywhere in that opinion. Bottle Logic is left with no factual or legal support for
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`its claim that a design does not depict one feature if it contains others as well.
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`Attempting to justify its refusal to admit very simple requests for admission, Bottle Logic
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`derides the language of those requests as “sloppy,” while denying ever making the arguments
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`that appear in its previous briefs, and citing case law that does not remotely stand for the
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`proposition for which it is cited. The most appropriate remedy would be for the Board to deem
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`each request admitted, just as Bottle Logic should have done in the first place.
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`V.
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`CONCLUSION
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`Bottle Logic makes no secret of its strategy in this proceeding: to withhold until the last
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`possible second the facts and documents that it plans to use to support its claims. In an effort to
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`keep all its options open, Bottle Logic will not even respond properly to requests that it admit
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`
`
`
`5
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`

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`certain facts that it already has admitted in its own prior representations in this proceeding. And
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`Bottle Logic goes so far as to misrepresent the content of the discovery requests and the holding
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`of the sole case on which it relies to justify its refusal to respond to requests for admission.
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`It is time for the Board to put an end to these games so that the parties can litigate this
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`case on the merits, with full understanding of each other’s contentions. Accordingly, the Board
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`should order Bottle Logic to respond properly to Platform’s interrogatories and request for
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`production, and should deem admitted each request for admission at issue in this motion.
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`
`
`
`
`Respectfully submitted,
`
`Date: January 28, 2020
`
`TUCKER ELLIS, LLP
`
`By: /s/Brian K. Brookey_____
`Brian K. Brookey
`950 Main Avenue, Suite 1100
`Cleveland, Ohio 44113-7213
`Phone: 216-696-3952
`Fax:
`216-592-5009
`
`brian.brookey@tuckerellis.com
`steven.lauridsen@tuckerellis.com
`trademarks@tuckerellis.com
`carlos.garritano@tuckerellis.com
`heather.barnes@tuckerellis.com
`
`Attorney for Defendant/Applicant
`
`
`
`
`6
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`

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`CERTIFICATE OF SERVICE
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`
`
`I certify that on the January 28, 2020, the foregoing APPLICANT’S REPLY BRIEF IN
`
`FURTHER
`
`SUPPORT OF MOTION TO COMPEL RESPONSES TO
`
`INTERROGATORIES AND REQUESTS FOR PRODUCTION, AND TO DETERMINE
`
`SUFFICIENCY OF RESPONSES TO REQUESTS FOR ADMISSION was sent via email to
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`the following:
`
`
`
`
`
`
`
`
`
`DANIEL CHRISTOPHERSON
`
`LEHRMAN BEVERAGE LAW PLLC
`
`2911 HUNTER MILL RD STE 303
`
`OAKTON, VA 22124
`
`UNITED STATES
`
`dan.christopherson@bevalw.com, trademarks@bevlaw.com
`
`
`By: /s/Steven E. Lauridsen
`Steven E. Lauridsen
`
`
`4549278.2
`
`7
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`