Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA970243
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`ESTTA Tracking number:
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`Filing date:
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`04/29/2019
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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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`91236668
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`Party
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`Correspondence
`Address
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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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`Attachments
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`Plaintiff
`Coreology Inc.
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`HENRY POGORZELSKI
`CONLEY ROSE PC
`P O BOX 3267
`HOUSTON, TX 77253-3267
`UNITED STATES
`tmhou@conleyrose.com
`713-238-8000
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`Opposition/Response to Motion
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`Thomas L. Warden/
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`twarden@conleyrose.com
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`/Thomas L. Warden/
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`04/29/2019
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`Response.pdf(260738 bytes )
`A - Lagree v. JetSet.pdf(4533271 bytes )
`B - Wolfenden Declaration.pdf(195003 bytes )
`C - Martz Declaration.pdf(543958 bytes )
`D - Lagree Patents.pdf(3399196 bytes )
`E - btone FITNESS Declaration.pdf(281385 bytes )
`F - Corus45 Declaration.pdf(1111203 bytes )
`G - JetSet Pilates Declaration REDACTED.pdf(2544696 bytes )
`H - Sculpt360 Declaration.pdf(290869 bytes )
`I - X-Core Studio Declaration.pdf(203162 bytes )
`J - Coreology LLC Declaration.pdf(127389 bytes )
`K - Pogorzelski Declaration.pdf(172370 bytes )
`L - Neustel POA for Patents in 2014.pdf(139521 bytes )
`M - Ky Evans v. Valentina Gaylord.pdf(188147 bytes )
`N - Gaylord Email re Lagree Visit.pdf(389260 bytes )
`O - Lagree v. Ky Evans.pdf(1068654 bytes )
`P - Oregon Subpoena to Shafii.pdf(937441 bytes )
`Q - Oregon Subpoena to Epiq.pdf(427346 bytes )
`R - Coreology Patents.pdf(469837 bytes )
`S - Shafii Declaration.pdf(1202294 bytes )
`T - Lagree v. SolidCore.pdf(1969479 bytes )
`U - Osborne Declaration.pdf(139263 bytes )
`
`

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`Attorney Docket Number 7278-00300
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Consolidated
`Opposition No. 91236668 (parent)
`Opposition No. 91236942
`Opposition No. 91238139
`Opposition No. 91245111
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`§
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`In the Matters of U.S. Trademark Applications Serial Nos. 87/160,134 for alleged mark
`SCRAMBLED EGGS; 87/975,341 for alleged mark WHEELBARROW; 87/507,864 for alleged
`mark SPIDER LUNGE; and 87/659572 for alleged mark SEXY BACK, assigned to Lagree
`Technologies, Inc.
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`COREOLOGY INC.
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`Opposer,
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`v.
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`LAGREE TECHNOLOGIES, INC.
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`Applicant.
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`OPPOSER’S RESPONSE IN OPPOSITION TO APPLICANT’S
`MOTION TO MODIFY THE BOARD’S STANDARD PROTECTIVE ORDER
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`Opposer Coreology, Inc. (“Coreology”) files this Response in Opposition to Applicant
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`Lagree Technologies, Inc. (“Lagree”)’s Motion to Modify the Board’s Standard Protective Order
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`(TTABVUE 42) (“motion”). Lagree’s motion should be denied in its entirety because the factual
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`allegations upon which the motion relies to show good cause are “false,” as confirmed by the
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`relevant witnesses.
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`I.
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`SUMMARY OF THE ARGUMENT
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`In its motion, Lagree requests three alterations to the Board’s standard protective order:
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`(1) a bar to any communication between Coreology or its counsel and any of Lagree’s third party
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`licensees; (2) a bar to Coreology’s lead counsel Mr. Pogorzelski reviewing any documents
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`designated “attorney’s eyes only”; and (3) a requirement that the parties and their counsel sign
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`the protective order.
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`Opposer’s Response to Motion for Leave
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`First, good cause does not exist to support a bar on communications between Coreology
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`or its counsel with Lagree’s third party licensees. Lagree has misrepresented that six of these
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`licensees were coerced into switching from Lagree to Coreology. In fact, all of these third party
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`licensees hereby submit declarations attesting to just the opposite: they were turned away by
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`Lagree’ own bullying tactics and they found Coreology (actually Los Angeles Ventures) by
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`themselves.
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`Second, good cause also does not exist to support a bar against Coreology’s lead counsel
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`reviewing “attorney’s eyes only” documents. As discussed below, Mr. Pogorzelski has a very
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`traditional outside counsel relationship with Coreology, for whom he has obtained no patents and
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`for whom there are no plans to obtain any patents. For at least this reason, Mr. Pogorzelski is not
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`a competitive decision maker. This is in contrast to Lagree’s counsel Mr. Neustel who has both
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`asserted claims for patent infringement against Coreology and obtained over 63 patents on
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`Lagree’s behalf.
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`Lastly, good cause also does not exist to support requiring the parties and their counsel to
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`sign the protective order. In support, Lagree asserts that Coreology has publicly revealed
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`Lagree’s confidential designated documents. However, the documents at issue were Coreology’s
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`own documents from before this opposition, such that they “may not be designated as subject to
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`any form of protection.” (Mot., Ex. A, TTAB Standard Protective Order § 2.) Even Lagree does
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`not consider these sorts of documents confidential. Lagree has disclosed these same sorts of
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`documents publicly in numerous lawsuits that it has filed against third parties.
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`II.
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`BACKGROUND
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`Applicant Lagree seeks to register the common and descriptive names of several Pilates
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`exercise moves: SCRAMBLED EGGS, WHEELBARROW, SPIDER LUNGE, and SEXY
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`BACK. Opposer Coreology has challenged the registerability of four alleged marks on several
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`Opposer’s Response to Motion to Modify
`Page 2
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`grounds, including that (1) the terms fail to function as marks; (2) the terms are descriptive and
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`generic for the names of exercise moves; and (3) to the extent that Lagree had any trademark
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`rights in these them, those rights were abandoned because Lagree failed to police its rights and/or
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`provided naked licenses to these rights. Coreology operates one of the many exercise studios in
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`the United States that have used these names and similar names of exercise moves for many
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`years.
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`Pilates was created 100 years ago during World War I by Joseph Pilates.1 He used
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`exercise machines that he referred to as “reformer” machines.2
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` Applicant Lagree’s
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`“Megaformer” reformer machine is simply one variation of a reformer. There are literally
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`dozens of other competing Pilates reformers,3 including the “XFormer” made and sold by non-
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`party Los Angeles Ventures, LLC.4
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`Lagree licenses its name and sells its “Megaformer” machines using a franchise model.
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`Rather than selling the machines outright, Lagree sells these machines to independent Pilates
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`studios only by assigning each studio a restricted zip code “territory,” and by collecting a large
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`upfront payment as well as ongoing periodic “license” payments. (See, e.g., Ex. A-1 at 2
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`(License to Jet Set Pilates LLC from Lagree predecessor SPX Fitness dated May 19, 2010,
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`requiring $35,000 upfront and $800 monthly payments).) Much to the dismay of many
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`successful studios, any attempt at expanding outside Lagree’s assigned zip code territory requires
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`additional fees. Lagree’s agreement with these studios has also included a license to use the
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`1 E.g., pilatesmethodalliance.org/i4a/pages/index.cfm?pageid=3277; pilates.com/BBAPP/V/
`pilates/origins-of-pilates.html.
`2 E.g., pilates.com/BBAPP/V/pilates/origins-of-pilates.html; verywellfit.com/the-anatomy-of-a-
`pilates-reformer-2704445; peakpilates.com/pilates-equipment/reformers.
`3 E.g., amazon.com; fitandme.com/pilates-reformer-reviews; dickssportinggoods.com/products/
`pilates-reformers.jsp.
`4 xformer.com/faq.
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`Opposer’s Response to Motion to Modify
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`Page 3
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`name “Megaformer,” but it did not so much as refer to any of the alleged marks at issue in this
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`opposition. (Id.; TTABVUE 35 Ex. A4 at 2 (“SPX Fitness and the Proformer/Megaformers are
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`the trademark that should be referred to.”).) This is because the alleged marks now at issue were
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`not then considered to be trademarks—not by Lagree or anyone else in the industry.
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`(TTABVUE 35 Ex. A at 2-3, ¶¶ 6, 9.)
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`
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`Coreology simply operates an exercise studio and does not sell exercise machines. (Id. at
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`1, ¶ 1; Ex. B at 2, ¶ 4.) Coreology was first formed as a California corporation on August 16,
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`2010. (TTABVUE 35 Ex. A at 3, ¶ 7.) Ms. Sarah Martz is the president and owner of
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`Coreology. (Ex. C at 1, ¶ 2.) Coreology is not now nor has it ever been a licensee of Lagree
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`with respect to any of the alleged marks at issue. (TTABVUE 35 Ex. A at 2-3, ¶¶ 6, 9.)
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`Several months before Coreology was even formed, Ms. Martz individually opened an
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`exercise studio in Palos Verdes, California. On June 10, 2010, still several months before
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`Coreology was incorporated, Ms. Martz executed one of Lagree’s franchise/license agreements.
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`She was assigned a zip code and purchased Lagree Megaformer-branded exercise machines. As
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`shown below, her agreement with Lagree very clearly refers to only three trademarks: “SPX
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`Fitness,” “Proformer,” and “Megaformer.” (Id. at 2-3, ¶¶5-6.)
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`(TTABVUE 35 Ex. A4 at 2 (emphasis added).) Moreover, none of Lagree’s alleged marks at
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`issue in this opposition were ever mentioned. Furthermore, Coreology has never entered any
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`agreement with Lagree. (TTABVUE 35 Ex. A at 3, ¶¶ 7-9.) After Ms. Martz was involved with
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`the opening of a second exercise studio that did not use Lagree’s Megaformer machines, Lagree
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`lashed out.
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`On January 10, 2017, Lagree wrote to Ms. Martz and Coreology asserting claims of
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`patent infringement, trademark and trade dress infringement, and copyright infringement. (Ex.
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`Opposer’s Response to Motion to Modify
`Page 4
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`TTABVUE 35 Ex. A6.) On April 25, 2017 (five months before the first opposition was filed),
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`Lagree sent another threatening letter to Coreology, this time specifically alleging that Coreology
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`had infringed several of Lagree’s alleged marks, including SCRAMBLED EGGS, SPIDER
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`LUNGE, SEXY BACK, and CARRIAGE KICK.5 (TTABVUE 35 Ex. A7.) Lagree’s current
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`counsel Mr. Neustel was behind both of these threats.
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`The exercise machines that Lagree accused of patent infringement were actually made
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`and sold by third party Los Angeles Ventures, a separate company that is solely owned by Ms.
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`Martz’s husband, Robert Wolfenden. (Ex. B at 1-2, ¶ 4.) Contrary to Lagree’s assertion, Mr.
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`Wolfenden does not own any interest in Coreology, which was already in existence even before
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`Mr. Wolfenden met his wife. (Id. at 1, ¶ 2.)
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`Mr. Wolfenden’s company Los Angeles Ventures simply sells its XFormer machines
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`direct to exercise studios. (Id. at 2, ¶ 4.) As discussed below, many exercise studios not
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`surprisingly prefer Los Angeles Venture’s direct sale approach over Lagree’s restrictive
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`franchise model. Each of the six “licensees” that Lagree claims it lost due to alleged “coercion”
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`by Coreology or its counsel have submitted declarations attached hereto in which they explain
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`that they sought out XFormer machines on their own, and the only “coercion” involved was due
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`to Lagree’s own punitive business practices and poor quality exercise machines.
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`XFormer machines sold by Los Angeles Ventures are also not “a version of the
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`MEGAFORMER.” (Mot. at 3.) Coreology and Los Angeles Ventures retained the law firm of
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`Conley Rose and in particular Mr. Pogorzelski as outside intellectual property counsel to defend
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`against Lagree’s intellectual property infringement assertions.
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`5 See Opp’n No. 91246748 (filed Mar. 4, 2019).
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`Opposer’s Response to Motion to Modify
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`Page 5
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`Contrary to Lagree’s assertion, Coreology’s outside counsel Mr. Pogorzelski is also not a
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`competitive decisionmaker who somehow threatens to use Lagree’s allegedly secret information
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`to obtain patents. Mr. Pogorzelski has only represented Coreology since 2017 and represents
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`Coreology and Los Angeles Ventures in patent matters only because he was hired to defend
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`Lagree’s claims of patent infringement. Los Angeles Ventures does not presently have any
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`patents on its XFormer machines. (Ex. B at 2, ¶ 5.) In stark contrast, Lagree’s lawyer Mr.
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`Neustel has obtained 63 patents for Lagree, just in the last three years. (Ex. D.) By Lagree’s
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`own logic, Mr. Neustel appears to be the only competitive decision maker.
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`III. ARGUMENT AND AUTHORITIES IN SUPPORT
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`A.
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`Lagree Has the Burden to Demonstrate Good Cause
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`“Upon motion by a party obligated to make initial disclosures or expert
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`testimony disclosure or from whom discovery is sought, and for good cause, the
`Trademark Trial and Appeal Board may make any order which justice requires to
`protect a party from annoyance, embarrassment, oppression, or undue burden or
`expense, including one or more of the types of orders provided by clauses (A)
`through (H), inclusive, of Rule 26(c)(1) of the Federal Rules of Civil Procedure.”
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`37 C.F.R. § 2.120(g) (emphasis added). In the present case, Lagree requests that the TTAB
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`make three alterations to its standard protective order: (1) restricting Coreology’s outside counsel
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`Mr. Pogorzelski from reviewing Lagree’s documents designated “attorney’s eyes only”; (2)
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`prohibiting Coreology from communicating with Lagree’s alleged third party licensees; and (3)
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`requiring that the parties sign the protective order. Lagree has no good cause to support any of
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`these alterations.
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`Rule 26 of the Federal Rules of Civil Procedure governs the requirements for a protective
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`order in TTAB Proceedings. Id.; 37 C.F.R. § 2.120(a)(1). Rule 26(c)(1) provides that “[a] party
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`or any person from whom discovery is sought may move for a protective order” upon a showing
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`of “good cause.” (Emphasis added.) The party seeking such a protective order has the burden of
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`Opposer’s Response to Motion to Modify
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`Page 6
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`proving good cause exists. In re Deutsche Bank Trust Co., 605 F.3d 1373, 1378 (Fed. Cir.
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`2010). This “good cause” standard under Rule 26(c) requires that a party seeking a protective
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`order has the burden “to show the necessity of its issuance, which contemplates a particular and
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`specific demonstration of fact as distinguished from stereotyped and conclusory statements.” In
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`re Terra Int’l, Inc., 134 F.3d 302, 306 (5th Cir. 1998) (quoting United States v. Garrett, 571 F.2d
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`1323, 1326 n.3 (5th Cir. 1978)).
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`In addition, “[f]or good cause to exist, the party seeking to limit the disclosure of
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`discovery materials must show that ‘specific prejudice or harm will result if no protective order
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`is granted.’” In re Violation of Rule 28(D), 635 F. 3d 1352, 1358 (Fed. Cir. 2011) (quoting
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`Phillips v. Gen. Motors Corp., 307 F.3d 1206, 1210-11 (9th Cir. 2002)).
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`B.
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`Lagree Has Failed to Satisfy Its Burden to Show Good Cause
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`1.
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`There Is No Good Cause to Restrict Communications with Third Party
`Licensees Because Coreology and Its Counsel Did Not Prompt Any
`Licensee to Quit Lagree
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`Lagree first argues that the Protective Order should be altered so as to bar counsel for
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`Coreology from communicating with any of Lagree’s alleged 300 third-party licensees. (Mot. at
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`17.) In support of such a bar, Lagree alleges that “Opposer has adopted a business plan that
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`includes targeting Lagree’s licensees and trying to convince or compel them to disassociate from
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`Lagree and convert from use of Lagree’s MEGAFORMER machine to Opposer’s competing
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`XFORMER machine.” (Id. at 3 (emphasis added).) Here, Lagree alleges that six particular
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`Lagree licensees were “convinced or forced to terminate their licenses with Lagree: BTone
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`Fitness (Jody Merrill), Corus45 (Hillary Zashin), JetSet Pilates (Aryen Rashed), Sculpt360
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`(Stephanie Luongo), XCore Studio (Cora Wo) and Coreology LLC of North Carolina.” (Id.
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`(emphasis added).)
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`Opposer’s Response to Motion to Modify
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`Page 7
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`First, even if Lagree’s allegations were true, Lagree has no legal basis to demand that
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`Coreology or its counsel not communicate with Lagree’s licensees. As explained to Lagree and
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`its counsel many times, the alleged marks are merely the common names of exercise moves that
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`lack any trademark significance. Coreology and its counsel have every right to investigate and
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`gather evidence of this lack of trademark significance, including by contacting all of Lagree’s
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`licensees or any others who have knowledge of this non-trademark use. (Mot., Ex. H at 2-3.)
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`These licensees are all independent business entities, they are not represented by Lagree’s
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`counsel, and their identity is also not in any way confidential. (See Lagree website at
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`https://www.lagreefitness.com/usa-locator, customer locator allowing the public to find all
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`Lagree-affiliated studios by zip code).)
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`Second, and more importantly, Lagree’s allegations are factually deficient. Here, the
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`Board should find it somewhat troubling that Lagree cites no evidence at all to support its
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`allegation that Coreology has some type of “business plan” to “target” Lagree licensees. The
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`Board should find it even more troubling that Lagree has cited only to a declaration by its owner
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`to support its allegations that Coreology has somehow “convinced or forced” third parties to
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`terminate their license with Lagree. Lagree’s own declaration itself says nothing about
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`Coreology “convincing” or “forcing” any of these licensees. (Mot., Ex. G at 2, ¶¶ 5-7.) Worse
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`yet, Lagree has not submitted any declaration, statement, or communication of any type by any
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`of the six licensees who were allegedly coerced.
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`There is a very good reason that evidence is lacking to support Lagree’s allegations. It is
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`because Lagree’s story is simply fabricated. On the other hand, Coreology has obtained sworn
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`statements from each of Lagree’s six licensees who were allegedly coerced. The Board should
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`find it deeply troubling that all of these Lagree licensees attest that Coreology and its counsel
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`had nothing to do with their decision to stop buying from Lagree.
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`Opposer’s Response to Motion to Modify
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`Page 8
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` btone FITNESS LLC (Jody Merill) states unequivocally that Lagree’s allegation is
`“false.” Rather, btone FITNESS contacted LosAngeles Ventures only after Lagree
`had allowed a competitor to move in and prevent btone FITNESS from opening new
`locations. Moreover, btone FITNESS had experienced “years of issues with the
`Megaformers” and understandably wanted higher quality equipment that would not
`“not break with usage.” btone FITNESS also noted that it has “never been in contact
`with any lawyers working for Coreology or Los Angles Ventures.” (Ex. E (emphasis
`added).)
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` Corus45 (Hillary Zashin) also states that Coreology and Los Angeles Venture did not
`solicit Corus45.
` The managing member of Corus45
`found Coreology
`“independently” and initiated contact with it. (Ex. F (emphasis added).)
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` JetSet Pilates (Aryen Rashed) likewise states that Lagree’s allegation is “not true.”
`Rather, JetSet contacted LosAngeles Ventures only after also suffering several
`problems with Lagree’s machines, poor support, and questionable business practices.
`Corus45 “never had any contact with any lawyers working for Coreology or Los
`Angeles Ventures prior to seeing the Lagree declaration.” (Ex. G (emphasis added).)
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` Sculpt360 (Stephanie Luongo) also states that Lagree’s allegation is “not true.”
`Sculpt360 quit buying from Lagree only after Lagree sent it threatening emails and
`sold territory to a competing franchise only six blocks away. Sculpt360 “was never
`approached by anyone at Coreology, Los Angeles Ventures, or their attorneys
`requesting that Sculpt360 terminate its license with Lagree . . . . [and] was never
`contacted by any attorneys for Coreology or Los Angeles Ventures at all prior to
`Sculpt360’s acquisition of XFormers.” (Ex. H (emphasis added).)
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` X-Core Studio (Cora Wo) also states that Lagree’s allegation is “not true.” X-Core
`only found Los Angeles Ventures through its website, after Lagree’s restrictive
`license to X-Core was limiting its growth. In fact, X-Core has never terminated any
`license with Lagree. X-Core instead opened a new studio using XFormer machines
`instead of Lagree’s machines. X-Core was “not ever approached by anyone at
`Coreology or Los Angeles Ventures asking X-Core to terminate X-Core Studio’s
`license with Lagree.” (Ex. I (emphasis added).)
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`Opposer’s Response to Motion to Modify
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`Page 9
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` Coreology LLC of North Carolina was also restricted by Lagree from expanding into
`its preferred zip codes. It learned about Los Angeles Ventures when its management
`saw XFormer machines while visiting btone FITNESS in Boston. Coreology LLC
`was involved in a trademark lawsuit with Coreology. However, at no time did
`Coreology Inc. or Los Angeles Ventures or any attorney working for either company
`request, suggest, or require that Coreology LLC either buy XFormers or terminate its
`relationship with Lagree in order to settle the lawsuit. (Ex. J.)
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`
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`Lagree’s former licensees thus uniformly agree that Coreology and its counsel had
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`nothing to do with their decision to disassociate from Lagree. The extent to which Lagree has
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`fabricated a contrary story is sufficient by itself to entirely deny Lagree’s motion.
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`2.
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`There Is No Good Cause to Limit Lead Counsel Pogorzelski’s Access to
`Documents Because He Is Not Personally Involved in Competitive
`Decision Making
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`In its motion, Lagree requests alterations to the protective order in part based on an
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`allegation that Coreology’s outside counsel, Mr. Pogrozelski is personally involved in
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`“competitive decision making.” Here, Lagree alleges that Mr. Pogorzelski has represented
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`Coreology “for several years,” that he has personally targeted Lagree’s licensees, and that he has
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`sought Lagree’s technical information to use in obtaining patents for Coreology. (Mot. at 3-7.)
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`Two Years of Representation Do Not Indicate Competitive Decision
`Making
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`First, Lagree’s argument that Mr. Pogorzelski must be personally involved in
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`Coreology’s competitive decision making because he has represented Coreology for “several
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`years” is disingenuous, much like Lagree’s other arguments. Mr. Pogorzelski has represented
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`Coreology only since early 2017, less than two and one-half years. (Ex. K at 2, ¶ 4.) By
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`contrast, Lagree’s own counsel Mr. Neustel has represented Lagree over twice as long. (Ex. L.)
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`Mr. Pogorzelski’s relationship with Coreology (and Los Angeles Ventures) is also strictly
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`a traditional outside counsel role. Mr. Pogorzelski has no ownership in either company, has
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`Opposer’s Response to Motion to Modify
`Page 10
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`never been employed or been “in-house” counsel at either company, does not share a mail or
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`email address, and he has only visited their offices once. (Ex. K at 2, 3, ¶¶ 4, 8.)
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`The fact that Mr. Pogorzelski acts as a traditional outside counsel does not diminish the
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`burden Coreology would face if he were restricted from accessing any of the many documents
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`designated as “attorney’s eyes only.” Mr. Pogorzelski is Coreology’s primary and lead counsel.
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`In this case, discovery is still ongoing and it would present a significant obstacle for Mr.
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`Pogorzelski to prepare for and conduct depositions without access to much of the underlying
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`discovery materials to be discussed at the depositions. By way of one example, Lagree has
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`asserted a licensee estoppel defense, but has requested (albeit improperly) that the alleged license
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`supporting such a defense be designated as “attorney’s eye only.” (Mot., Ex. P at 1.)
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`The Six Licensees Who Quit Lagree Do Not Indicate Competitive
`Decision Making
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`Second, as discussed in Part III.B.1 above, Lagree’s allegations about Mr. Pogorzelski or
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`anyone else targeting its licensees has proven to be entirely false. None of the six licensees who
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`allegedly quit Lagree had any prior dealings or any communications with Mr. Pogorzelski. None
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`of these six licensees were coerced and they all had their own legitimate business reasons to seek
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`alternatives to Lagree’s restrictive franchise model and/or its poor quality machines.
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`The Gaylord Declaration Does Not Indicate Competitive Decision Making
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`Lagree’s accusations concerning Ms. Gaylord are equally suspect. (Mot. at 4-6.)
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`Initially, Coreology must seriously question Ms. Gaylord’s recollection of events. Ms. Gaylord’s
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`declaration discusses a 10-15 minute conversation in a Whole Foods parking lot in August of
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`2018. (Mot., Ex. L.) The trouble is that Ms. Gaylord did not sign a declaration until over four
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`months later, in December 2018. Lagree then waited another four months before submitting the
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`declaration in April 2019. (Mot., Ex. L at 2-3, 11.) As discussed below, Ms. Gaylord’s
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`recollection of events appears to have been supplanted with a version that was fabricated by
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`Lagree and its counsel.
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`At the time that Ms. Gaylord met Mr. Pogorzelski in August of 2018, Gaylord was
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`involved in an arbitration where she was accused of violating her contract with fitness trainer Mr.
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`Ky Evans. (Ex. M.) As a result of this arbitration, Ms. Gaylord was ordered to pay Ky Evans
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`over $165,000. (Id.) Ms. Gaylord now somehow associates Ky Evans with Coreology and
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`appears to harbor significant animosity toward Coreology and Mr. Pogorzelski due to the
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`arbitration. During their short conversation, Ms. Gaylord seems to recall asking Mr. Pogorzelski
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`(for no apparent reason) if he knew Ky Evans, and later believing that Mr. Pogorzelski must have
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`been lying when he said he did not know him. (Mot., Ex. L at 8, 10, at ¶¶ 54, 68.) Lagree’s
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`counsel has evidently fueled Ms. Gaylord’s animosity and encouraged her to weave a tale of
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`personal attacks by telling Ms. Gaylord that Ky Evans was a “witness” for Coreology and that
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`Mr. Pogorzelski knew him. In fact, Ky Evans’ name was never even mentioned during
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`Gaylord’s brief meeting with Mr. Pogorzelski, he is not a Coreology witness, and Mr.
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`Pogorzelski actually does not know him. Ky Evans was listed as a person with knowledge of
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`relevant facts on Coreology’s initial disclosures—not as a Coreology witness—in the same way
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`that Sebastian Lagree and 13 other miscellaneous individuals were listed. (Mot., Ex. B at 5.)
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`Moreover, Ky Evans was listed there because he was former trainer for Lagree, and his address
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`and phone number were shown as “not known.” (Id.) This was the extent that Mr. Pogorzelski
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`knew of Ky Evans. (Ex. K at 6-7, ¶¶19-20.)
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`Regrettably, Coreology must also question Ms. Gaylord’s motivation and integrity. Soon
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`after Ms. Gaylord signed her declaration, Lagree’s owner Sebastian Lagree personally traveled to
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`from California to Gaylord’s studio in Austin, Texas for a special “meet and greet” for Gaylord’s
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`customers. (Ex. N (announcing that customers could “MEET THE MAN THAT STARTED IT
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`ALL!”).) Mr. Lagree’s visit appears to be timed as a reward for Ms. Gaylord’s disparaging
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`declaration.6 Similarly, not long after Gaylord lost her arbitration with Ky Evans, Lagree filed
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`his own lawsuit against Ky Evans seeking millions for various purported misdeeds. (Ex. O.)
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`Lagree’s lawsuit (one of many) appears timed to reward Ms. Gaylord by pressuring Ky Evans.
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`Mr. Pogorzelski has submitted his own declaration to correct many of the inaccuracies in
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`Ms. Gaylord’s declaration. Mr. Pogorzelski has practiced intellectual property law for over 20
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`years. He has a degree in chemical engineering from Virginia Tech, and a law degree from the
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`University of Texas. Mr. Pogorzelski summarizes the situation by noting that the “vast majority
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`of the statements in Gaylord’s declaration are false.” (Ex. K at 4, ¶ 11.)
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`Mr. Pogorzelski explains that his meeting with Ms. Gaylord was a chance encounter
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`simply because his office is located only a few blocks from the Whole Foods parking lot where
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`they met. Mr. Pogorzelski spoke to Ms. Gaylord only because he knew that many Lagree
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`licensees were potential witnesses with knowledge that Lagree’s alleged marks have not been
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`used by Lagree or anyone else in an actual trademark sense, and that Lagree does not actually
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`police its alleged marks corresponding to exercise moves. (Ex. K. at 5, ¶ 14.) Contrary to
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`Gaylord’s declaration, Pogorzelski did not target Ms. Gaylord and he did not arrogantly claim
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`that he “knew who she was.” There was also no discussion about patenting, “copycats,” Lagree
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`patents, and importantly, no coercion or extended discussion about Gaylord switching to
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`XFormer machines. (Id. at 7, 8, ¶¶ 22-25.) Not surprisingly, at no time did Ms. Gaylord indicate
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`that she was “freaked out” or otherwise uncomfortable. (Id. at 9, ¶ 31.)
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`6
`Ms. Gaylord has also recently been sued by a former business partner for alleged fraud
`and for fabricating salary records. (Ex. U at 1.) Her former business partner understandably
`believes that Gaylord is “dishonest.” (Id.)
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`The Oregoon Subpoenaas Do Not I
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`ndicate Comppetitive Deccision Makinng
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`In its motion, Lagree alsso alleges that Coreologgy’s counsel
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`Pogorzelskii has “used
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`these
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`seek highlyy confidentiaal informatioon . . .
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`proceedings as a way to issue thiird party subbpoenas that
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`of Lagre
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`e related to Lagree’s exeercise machinnes and poteentially to Laagree’s patennts.” (Mot.
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`at 8.)
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`In partic
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`ular, Lagree argues thaat alterationss of the pro
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`tective orde
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`r are necesssary becausee two
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`as issued
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`by Coreologgy to thirdd parties i
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`n Oregon
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`allegedly soought “techhnical
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`informat
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`Lagree’s
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`patents or
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`Lagree’s eexercise maachines for
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`the impro
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`per purposee of invaliddating
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`“help craftft Coreologyy’s own ex
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`ercise machhine patents
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`.” (Id. at
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`8-9.)
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`Lagree’s
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`arguments
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`are so decepptively false
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`that the Boaard should
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`deny Lagree
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`’s motion onn this
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`basis alone.
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`with Lagreee’s argument is that t
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`hese Orego
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`n subpoenas
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`actually didd not
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`The problem
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`seek technical informmation abouut Lagree’s
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`exercise m
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`achines. T
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`he subpoenass were shorrt and
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`o the allegees related tonly on issuenarrowlyy focused o
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`d trademar
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`ks that Lagrree now seeeks to
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`register.
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` (Exs. P,
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`Q.) For exaample, the
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`first documment reques
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`t in both suubpoenas soought
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`docume
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`nts concerning Lagree’s uuse of the allleged mark
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`SCRAMBLLED EGGS:
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`(Ex. P a
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`t 5.) It should come as nno surprise tthat Coreol
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`ogy’s subpo
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`enas do not
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`seek techniccal or
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`patent i
`nformation.
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` This is a
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`trademark
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`opposition
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`proceeding
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`involving aalleged markks to
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`exercise
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`moves. Technical inforrmation regaarding Lagr
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`ee’s exercis
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`e machines oor pending ppatent
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`applicatioons is not
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`likely to bee relevant too any issue
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`involved i
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`n these procceedings. TThus,
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`Coreology has not soought such innformation dduring discoovery and it
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`Opposer’s Response to Motion to Moodify
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`does not antticipate seekking it
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`Paage 14
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`in discovery. Moreover, Coreology would fully expect Lagree to strenuously object to any
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`discovery regarding its technical or patent information.
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`What makes Lagree’s contrary argument so misleading is that Lagree’s motion failed to
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`attach a copy of either of the Oregon subpoenas, so that the Board could judge for itself whether
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`the subpoenas were improper. Instead, Lagree curiously attached only the docket sheet from the
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`miscellaneous cases in Oregon where it had filed a motion to quash.7 (Mot., Exs. V, W.) Rather
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`than provide the actual subpoenas, Lagree then pointed to a letter written by Coreology’s counsel
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`which Lagree claims is evidence that these subpoenas sought irrelevant information.
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`Specifically, Lagree claims that “Pogorzelski has asserted that the information he seeks
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`‘may very well evidence previously undocumented early public disclosures of Lagree
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`machines—the existence of which would invalidate and/or render unenforceable . . . Lagree
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`patents.’” (Mot. at 8 (quoting Mot., Ex.