Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA1075195
`08/14/2020
`
`ESTTA Tracking number:
`
`Filing date:
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`Correspondence
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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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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91239006
`
`Defendant
`Apple Inc.
`
`DALE M CENDALI
`KIRKLAND & ELLIS LLP
`601 LEXINGTON AVENUE
`NEW YORK, NY 10022
`UNITED STATES
`Primary Email: dale.cendali@kirkland.com
`Secondary Email(s): mary.mazzello@kirkland.com
`megan.mckeown@kirkland.com, erika.dillon@kirkland.com,
`karina.patel@kirkland.com
`212-446-4800
`
`Defendant's Notice of Reliance
`
`Dale M. Cendali
`
`dale.cendali@kirkland.com, mary.mazzello@kirkland.com,
`megan.mckeown@kirkland.com, erika.dillon@kirkland.com,
`karina.patel@kirkland.com
`
`/Dale M. Cendali/
`
`08/14/2020
`
`Apple Notice of Reliance.pdf(90856 bytes )
`Apple Trial Ex. 35-36.pdf(3671090 bytes )
`Apple Trial Ex. 37-38.pdf(5178840 bytes )
`Apple Trial Ex. 39-44.pdf(5736835 bytes )
`Apple Trial Ex. 45-49.pdf(4555958 bytes )
`Apple Trial Ex. 50-51.pdf(5930776 bytes )
`Apple Trial Ex. 52-53.pdf(5782136 bytes )
`Apple Trial Ex. 54-66.pdf(5468401 bytes )
`Apple Trial Ex. 67.pdf(5923594 bytes )
`
`

`

`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`GANG CAO,
`
`
`
`v.
`
`APPLE INC.,
`
`
`Opposer,
`
`Applicant.
`
`
`
`
`
`
`
`Opposition No. 91239006
`
`
`
`
`
`
`
`
`APPLICANT APPLE INC.’S NOTICE OF RELIANCE
`
`
`Pursuant to 37 C.F.R. §§ 2.120, 2.122 and TBMP § 704 et seq., Applicant Apple Inc.
`
`(“Apple”), by counsel, hereby gives notice that it may rely on any or all of the materials attached
`
`hereto or referenced herein in the trial of this matter as described below.
`
`1.
`
`Apple Trial Exhibits 3–5,1 previously submitted with the Cross Examination by
`
`Written Questions of Mr. Gang Cao,2 are printouts from the following publicly available
`
`websites:
`
`a. Exhibit 3: “Prestigio”, printed on January 30, 2020 from the URL
`
`https://prestigio.com/use, which shows that there are no Prestigio service centers
`
`in the United States;
`
`
`1 The gaps in the numbering of exhibits in Apple’s Notice of Reliance are due to the fact that
`Apple is submitting certain of its trial exhibits solely via testimony from Opposer Gang Cao
`or Apple’s witness Thomas La Perle.
`2 Apple submitted Exhibits 3–5, 7–9, 11–13, 16, and 19–24 to the Board with the Cross
`Examination by Written Questions of Mr. Cao. (48 TTABVUE 350–55, 378–441, 445–83,
`487, 490–98.) To avoid overburdening the Board, Apple has not attached hereto additional
`copies of these exhibits, but will submit additional copies at the Board’s request.
`
`
`
`

`

`
`
`b. Exhibit 4: “Prestigio: Where to Buy”, printed on January 30, 2020 from the URL
`
`https://prestigio.com/where-to-buy, which shows that there are no locations in the
`
`United States where consumers can purchase Prestigio products.
`
`c. Exhibit 5: “Symphony Mobile (A Sister of Concern of Edison Group)” from
`
`LinkedIn, printed on January 29, 2020 from the URL
`
`https://www.linkedin.com/company/symphony-mobile-a-sister-concern-of-
`
`edison-group-/about/, which shows that the Symphony Mobile Phone is a product
`
`for the Bangladesh market.
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These materials are relevant to show that the LIVE PHOTOS mark is not
`
`generic or descriptive, as they show that the evidence Mr. Cao introduced concerning Prestigio
`
`and Symphony Mobile is irrelevant because it comes from foreign sources and concerns products
`
`that are not for the U.S. market. These materials were used during the cross-examination by
`
`written questions of Gang Cao and were provided to the Board with the transcript from that
`
`exam. (48 TTABVUE 350–55.)
`
`2.
`
`Apple Trial Exhibit 7, previously submitted with the Cross Examination by
`
`Written Questions of Mr. Gang Cao, is a collection of printouts from the websites of the
`
`following publicly available online dictionaries and thesauruses showing the results of searches
`
`for the phrase “live photos”:
`
`a. Pages 1 - 3: babylon, printed on October 25, 2018 from the URLs
`
`https://dictionary.babylon-software.com/live%20photos/ and
`
`https://thesaurus.babylon-software.com/;
`
`2
`
`

`

`
`
`b. Pages 2 - 4: babylon, printed July 13, 2018 from the URLs
`
`https://dictionary.babylon-software.com/live%20photo/ and
`
`https://thesaurus.babylon-software.com/;
`
`c. Page 5: Cambridge Dictionary, printed October 25, 2018 from the URL
`
`https://dictionary.cambridge.org/us/spellcheck/english/?q=live%2Bphotos;
`
`d. Page 6: Cambridge Dictionary, printed July 13, 2018 from the URL
`
`https://dictionary.cambridge.org/us/spellcheck/english/?q=live%2Bphoto;
`
`e. Page 7: Collins Dictionary, printed October 25, 2018 from the URL
`
`https://www.collinsdictionary.com/us/spellcheck/english?q=live+photos;
`
`f. Page 8: Collins Dictionary, printed July 13, 2018 from the URL
`
`https://www.collinsdictionary.com/us/spellcheck/english?q=live+photo;
`
`g. Page 9: Collins Thesaurus, printed October 25, 2018 from the URL
`
`https://www.collinsdictionary.com/us/spellcheck/english-
`
`thesaurus?q=live+photos;
`
`h. Page 10: Collins Thesaurus, printed July 13, 2018 from the URL
`
`https://www.collinsdictionary.com/us/spellcheck/english-thesaurus?q=live+photo;
`
`i. Page 11: Dictionary.com, printed October 25, 2018 from the URL
`
`https://www.dictionary.com/misspelling?term=live%20photos,
`
`j. Page 12: Dictionary.com, printed July 13, 2018 from the URL
`
`http://www.dictionary.com/misspelling?term=live%20photo&s=t;
`
`k. Pages 13 - 14: Fact Monster, printed October 25, 2018 from the URL
`
`https://www.factmonster.com/dictionary/live%20photos;
`
`3
`
`

`

`
`
`l. Pages 15 - 16: Fact Monster, printed July 13, 2018 from the URL
`
`https://www.factmonster.com/dictionary/live%20photos;
`
`m. Page 17: The Free Dictionary, printed October 25, 2018 from the URL
`
`https://www.thefreedictionary.com/Live+Photos;
`
`n. Page 18: A Dictionary of the English Language, printed October 25, 2018 from
`
`the URL https://johnsonsdictionaryonline.com/search-johnsons-
`
`dictionary/?SearchValue=live%20photos;
`
`o. Page 19: A Dictionary of the English Language, printed July 13, 2018 from the
`
`URL https://johnsonsdictionaryonline.com/search-johnsons-
`
`dictionary/?SearchValue=live%20photo;
`
`p. Pages 20 - 21: LingvoSoft Online, printed October 25, 2018 from the URL
`
`http://www.lingvozone.com/main.jsp?action=translation&do=dictionary&languag
`
`e_id_from=23&language_id_to=61&word=live+photo&t.x=0&t.y=0;
`
`q. Pages 22 - 23: LingvoSoft Online, printed July 13, 2018 from the URL
`
`http://www.lingvozone.com/main.jsp?action=translation&do=dictionary&languag
`
`e_id_from=23&language_id_to=61&word=live+photo&t.x=0&t.y=0;
`
`r. Page 24: Longman, printed October 25, 2018 from the URL
`
`https://www.ldoceonline.com/spellcheck/english/?q=live+photos;
`
`s. Page 25: Longman, printed July 13, 2018 from the URL
`
`https://www.ldoceonline.com/spellcheck/english/?q=live+photo;
`
`t. Page 26: Macmillan Dictionary, printed October 25, 2018 from the URL
`
`https://www.macmillandictionary.com/us/spellcheck/american/?q=live+photos;
`
`4
`
`

`

`
`
`u. Page 27: MacMillan Dictionary, printed July 13, 2018 from the URL
`
`https://www.macmillandictionary.com/us/spellcheck/american/?q=live+photo;
`
`v. Pages 28 - 29: Merriam-Webster, printed October 25, 2018 from the URLs
`
`https://www.merriam-webster.com/dictionary/live%20photos and
`
`https://www.merriam-webster.com/thesaurus/live%20photos;
`
`w. Pages 30 - 31: Merriam-Webster, printed July 13, 2018 from the URLs
`
`https://www.merriam-webster.com/dictionary/live%20photo and
`
`https://www.merriam-webster.com/thesaurus/live%20photo;
`
`x. Pages 32 - 33: Oxford Learner’s Dictionary, printed October 25, 2018 from the
`
`URL
`
`https://www.oxfordlearnersdictionaries.com/us/spellcheck/english/?q=live+photo
`
`s;
`
`y. Pages 34 - 35: Oxford Learner’s Dictionary, printed July 13, 2018 from the URL
`
`https://www.oxfordlearnersdictionaries.com/us/spellcheck/english/?q=live+photo;
`
`z. Page 36: Synonymy, printed October 25, 2018 from the URL
`
`http://www.synonymy.com/results.php?word=live%20photos;
`
`aa. Page 37: Synonymy, printed July 13, 2018 from the URL
`
`http://www.synonymy.com/results.php?word=live%20photo;
`
`bb. Page 38: Thesaurus.com, printed October 25, 2018 from the URL
`
`https://www.thesaurus.com/misspelling?term=live%20photos;
`
`cc. Page 39: Thesaurus.com, printed July 13, 2018 from the URL
`
`http://www.thesaurus.com/misspelling?term=live%20photo&s=t;
`
`5
`
`

`

`
`
`dd. Page 40: Vocabulary.com, printed October 25, 2018 from the URL
`
`https://www.vocabulary.com/dictionary/Lophophorus;
`
`ee. Page 41 Vocabulary.com, printed July 13, 2018 from the URL
`
`https://www.vocabulary.com/dictionary/live%20up%20to;
`
`ff. Page 42: Webster, printed October 25, 2018 from the URL https://www.webster-
`
`dictionary.org/definition/live%20photos;
`
`gg. Page 43: Webster, printed July 13, 2018 from the URL http://www.webster-
`
`dictionary.org/definition/live%20photo;
`
`hh. Page 44: Wordnik, printed October 25, 2018 from the URL
`
`https://www.wordnik.com/words/live%20photos#define;
`
`ii. Page 45: Wordnik, printed July 13, 2018 from the URL
`
`https://www.wordnik.com/words/live%20photo;
`
`jj. Pages 46 - 50; 56: WordReference.com, printed October 25, 2018 from the URLs
`
`http://www.wordreference.com/definition/live%20photos and
`
`http://www.wordreference.com/synonyms/live%20photos;
`
`kk. Pages 51 - 55; 57 - 58: WordReference.com, printed July 13, 2018 from the URL
`
`http://www.wordreference.com/definition/live%20photo and
`
`http://www.wordreference.com/synonyms/live%20photo;
`
`ll. Page 59: Wordsmyth, printed October 25, 2018 from the URL
`
`https://www.wordsmyth.net/?level=3&ent=live+photos;
`
`mm.
`
`Page 60: Wordsmyth, printed July 13, 2018 from the URL
`
`https://www.wordsmyth.net/?level=3&ent=live+photo;
`
`6
`
`

`

`
`
`nn. Page 61: WordWebOnline, printed July 13, 2018 from the URL
`
`https://www.wordwebonline.com/search.pl?w=live+photo; and
`
`oo. Page 62: WordWebOnline, printed October 25, 2018 from the URL
`
`https://www.wordwebonline.com/search.pl?w=live+photos;
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). They are relevant to show that the LIVE PHOTOS mark is not descriptive
`
`or generic. This exhibit was used during the cross-examination by written questions of Gang
`
`Cao and was provided to the Board with the transcript from that exam. (48 TTABVUE378–
`
`439.)
`
`3.
`
`Apple Trial Exhibits 8 and 9, previously submitted with the Cross Examination by
`
`Written Questions of Mr. Gang Cao, are printouts from the websites from the following publicly
`
`available online dictionaries and thesauruses showing the results of searches for the phrase “live
`
`photos”:
`
`a. Exhibit 8: The Free Dictionary, printed July 13, 2018 from the URL
`
`https://encyclopedia2.thefreedictionary.com/Live+Photos.
`
`b. Exhibit 9: Your Dictionary, printed October 25, 2018 from the URL
`
`http://www.yourdictionary.com/live-photos#computer?direct_search_result=yes.
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These exhibits are relevant to show that the LIVE PHOTOS mark is not
`
`descriptive or generic and that Apple has acquired secondary meaning in the mark LIVE
`
`PHOTOS. These materials were used during the cross-examination by written questions of Gang
`
`Cao and were provided to the Board with the transcript from that exam. (48 TTABVUE 440–
`
`42.)
`
`7
`
`

`

`
`
`4.
`
`Apple Trial Exhibit 11, previously submitted with the Cross Examination by
`
`Written Questions of Mr. Gang Cao, is Opposer Gang Cao’s Objections and Responses to
`
`Applicant Apple Inc.’s First Set of Interrogatories to Opposer Mr. Gang Cao, dated May 21,
`
`2018. These responses and objections may be introduced by notice of reliance pursuant to 37
`
`C.F.R. § 2.120(k)(3)(i) and TBMP § 704.10. This exhibit is relevant to show Mr. Cao’s lack of
`
`standing to oppose registration of Apple’s LIVE PHOTOS mark; Mr. Cao’s lack of interest in, or
`
`use of, the phrase “live photos” or domain names containing the phrase “live photo”; the lack of
`
`damage or harm to Mr. Cao in the event Apple’s LIVE PHOTOS mark is registered; and the
`
`apps Mr. Cao currently offers. This exhibit was used during the cross-examination by written
`
`questions of Gang Cao and was provided to the Board with the transcript from that exam. (48
`
`TTABVUE 445–70.)
`
`5.
`
`Apple Trial Exhibit 12, previously submitted with the Cross Examination by
`
`Written Questions of Mr. Gang Cao, is a printout of a publicly available preservation of the
`
`website <create.ca> preserved by The Internet Archive, printed on January 25, 2018 from the
`
`URL https://web.archive.org/web/20110202203028/http://www.create.ca/domain/livephoto.php.
`
`This exhibit may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). This exhibit shows that Mr. Cao’s www.livephoto.com and
`
`www.livephoto.ca websites were listed as “for sale” after he purchased them. This exhibit is
`
`relevant to show Mr. Cao’s lack of standing to oppose registration of Apple’s LIVE PHOTOS
`
`mark; Mr. Cao’s lack of interest in, or use of, the phrase “live photos” or domain names
`
`containing the phrase “live photo”; and the lack of damage or harm to Mr. Cao in the event
`
`Apple’s LIVE PHOTOS mark is registered. This exhibit was used during the cross-examination
`
`by written questions of Gang Cao and was provided to the Board with the transcript from that
`
`8
`
`

`

`
`
`exam. (48 TTABVUE 471.) A copy of the website preservation in Apple Trial Exhibit 12 is
`
`also attached on page 2 of Appendix A to the Affidavit of Elizabeth Rosenberg, a representative
`
`from the organization The Internet Archive, which is being submitted simultaneously with this
`
`Notice of Reliance. The only difference is that the version attached to Ms. Rosenberg’s affidavit
`
`was printed more recently, was printed in portrait orientation, and does not contain a bates stamp.
`
`6.
`
`Apple Trial Exhibit 13, previously submitted with the Cross Examination by
`
`Written Questions of Mr. Gang Cao, is Opposer Gang Cao’s Objections and Responses to
`
`Agreed Subset of Applicant Apple Inc.’s Second Set of Requests for Admission, dated January
`
`4, 2019. These responses and objections may be introduced by notice of reliance pursuant to 37
`
`C.F.R. § 2.120(k)(3)(i) and TBMP § 704.10. This exhibit is relevant to show Mr. Cao’s lack of
`
`standing to oppose registration of Apple’s LIVE PHOTOS mark; Mr. Cao’s lack of interest in, or
`
`use, of the phrase “live photos” or domain names containing the phrase “live photo”; and the
`
`lack of damage or harm to Mr. Cao in the event Apple’s LIVE PHOTOS mark is registered.
`
`This exhibit was used during the cross-examination by written questions of Gang Cao and was
`
`provided to the Board with the transcript from that exam. (48 TTABVUE 472–83.)
`
`7.
`
`Apple Trial Exhibit 16, previously submitted with the Cross Examination by
`
`Written Questions of Mr. Gang Cao, is a printout of the livephoto.com website printed on
`
`January 23, 2020 from the URL http://livephoto.com/. This exhibit may be introduced by notice
`
`of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and TBMP § 704.08(b). This exhibit is relevant
`
`to show Mr. Cao’s lack of standing to oppose registration of Apple’s LIVE PHOTOS mark; Mr.
`
`Cao’s lack of interest in, or use of, the phrase “live photos” or domain names containing the
`
`phrase “live photo”; and the lack of damage or harm to Mr. Cao in the event Apple’s LIVE
`
`PHOTOS mark is registered. This exhibit was used during the cross-examination by written
`
`9
`
`

`

`
`
`questions of Gang Cao and was provided to the Board with the transcript from that exam. (48
`
`TTABVUE 487.)
`
`8.
`
`Apple Trial Exhibits 19–23, previously submitted with the Cross Examination by
`
`Written Questions of Mr. Gang Cao, are printouts from publicly available websites showing
`
`information about the apps Mr. Cao offers.
`
`a. Exhibit 19: SpinFun website, printed on January 10, 2020 from the URL
`
`http://spinfun.co/.
`
`b. Exhibit 20: SpinFun app page, printed on October 24, 2018 from the URL
`
`https://itunes.apple.com/ng/app/spinfun/id1137701825?mt=8.
`
`c. Exhibit 21: SpinExplorer website, printed on January 10, 2020 from the URL
`
`http://spinexplorer.com/.
`
`d. Exhibit 22: SpinExplorer app page, printed on October 24, 2018 from the URL
`
`https://itunes.apple.com/ng/app/spin-explorer/id1254344513?mt=8.
`
`e. Exhibit 23: SpinExplorer 2 app page, printed on October 24, 2018 from the URL
`
`https://itunes.apple.com/us/app/spin-explorer-2/id1387180933?mt=8.
`
`These exhibits may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These materials are relevant to show Mr. Cao’s lack of standing to oppose
`
`registration of Apple’s LIVE PHOTOS mark; Mr. Cao’s lack of interest in, or use of, the phrase
`
`“live photos” or domain names containing the phrase “live photo”; the lack of damage or harm to
`
`Mr. Cao in the event Apple’s LIVE PHOTOS mark is registered; and the functionality and
`
`promotion of Mr. Cao’s apps “SpinFun,” “SpinExplorer,” and “SpinExplorer 2.” These exhibits
`
`were used during the cross-examination by written questions of Gang Cao and provided to the
`
`Board with the transcript from that exam. (48 TTABVUE 490–97.)
`
`10
`
`

`

`
`
`9.
`
`Attached hereto as Exhibits 35–37 are printouts from Apple’s publicly available
`
`website showing its use of the LIVE PHOTOS mark.
`
`a. Exhibit 35: A September 9, 2015 press release from Apple titled “Apple
`
`Introduces iPhone 6s & iPhone 6s Plus,” printed on August 21, 2018 from the
`
`URL https://www.apple.com/newsroom/2015/09/09Apple-Introduces-iPhone-6s-
`
`iPhone-6s-Plus/.
`
`b. Exhibit 36: A page from Apple’s website titled “Take and edit Live Photos,”
`
`printed on August 21, 2018 from the URL https://support.apple.com/en-
`
`us/HT207310.
`
`c. Exhibit 37: A page from Apple’s website titled “Photos for macOS,” printed on
`
`August 7, 2020 from the URL https://www.apple.com/macos/photos/.
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These documents are relevant to show that the LIVE PHOTOS mark is
`
`suggestive, not descriptive; that Apple has acquired secondary meaning in the LIVE PHOTOS
`
`mark; that the LIVE PHOTOS mark is not generic; use of the LIVE PHOTOS mark as a
`
`trademark for Apple’s camera feature; and the functionality and promotion of Apple’s Live
`
`Photos camera feature.
`
`10.
`
`Attached hereto as Exhibit 38–39 are printouts from publicly available YouTube
`
`pages for videos containing references to Apple’s LIVE PHOTOS software feature using the
`
`trademark LIVE PHOTOS.
`
`a. Exhibit 38: The YouTube webpage for the video titled “Apple - September Event
`
`2015” printed on August 7, 2020 from the URL
`
`https://www.youtube.com/watch?v=0qwALOOvUik.
`
`11
`
`

`

`
`
`b. Exhibit 39: The YouTube webpage for the video titled “iPhone 6s Impressions!”
`
`printed on July 20, 2020 from the URL https://www.youtube.com/watch?v=gN-
`
`MeB-S8Kw&t=42s.
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These documents are relevant to show that Apple has acquired secondary
`
`meaning in the LIVE PHOTOS mark and that the LIVE PHOTOS mark is not generic.
`
`11.
`
`Attached hereto as Exhibits 40–45 are printouts from publicly available websites
`
`showing the circulation, distribution, and/or website rankings for various news sources.
`
`a. Exhibit 40: A webpage from the website rankings website www.alexa.com
`
`showing the website ranking information for the online news source, The Verge,
`
`printed on July 24, 2020 from the URL
`
`https://www.alexa.com/siteinfo/theverge.com.
`
`b. Exhibit 41: A webpage titled “Circulation of select newspapers in the U.S. 2015”
`
`from Statista, printed on July 24, 2020 from the URL
`
`https://www.statista.com/statistics/272790/circulation-of-the-biggest-daily-
`
`newspapers-in-the-us/.
`
`c. Exhibit 42: Excerpts from the New York Times Company’s 10-K filing for the
`
`fiscal year ended December 27, 2015, printed on July 30, 2020 from the URL
`
`https://www.sec.gov/Archives/edgar/data/71691/000007169116000023/a2015for
`
`m10-k.htm.
`
`d. Exhibit 43: A webpage titled “About Us” by the Biloxi Sun Herald, printed on
`
`July 24, 2020 from the URL https://www.sunherald.com/customer-service/about-
`
`us/.
`
`12
`
`

`

`
`
`e. Exhibit 44: An article titled “Janice Min to step down from Hollywood Reporter
`
`after remaking the trade publication,” from the Los Angeles Times, dated February
`
`6, 2017 and printed on July 24, 2020 from the URL
`
`https://www.latimes.com/business/hollywood/la-fi-ct-janice-min-hollywood-
`
`reporter-20170206-story.html.
`
`f. Exhibit 45: A presentation available online titled “Media Kit 2020” from Hearst
`
`Bay Area printed on August 7, 2020 from the URL
`
`https://cdn2.hubspot.net/hubfs/655969/Media_Kit_and_File_Assets/MEDIA_KIT
`
`_GENERAL.pdf.
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These materials are relevant to show the popularity or circulation of various
`
`new sources that reported on Apple’s LIVE PHOTOS feature, which is relevant to showing that
`
`Apple’s LIVE PHOTOS mark has acquired secondary meaning and is not generic.
`
`12.
`
`Attached hereto as Exhibit 46 is a printout from the publicly available website
`
`iSpot.tv concerning the “Apple iPhone 6s TV Commercial Live Photos,” printed on July 20,
`
`2020 from the URL https://www.ispot.tv/ad/AqQw/apple-iphone-6s-live-photos?conv=1. This
`
`document may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). This document shows advertising metrics, such as TV impressions and
`
`social impressions, for Apple’s iPhone 6s, Live Photos television commercial. It is relevant to
`
`show that Apple’s LIVE PHOTOS mark has acquired secondary meaning and is not generic.
`
`13.
`
`Attached hereto as Exhibits 47–48 is Opposer Gang Cao’s responses to certain
`
`discovery requests served by Apple.
`
`13
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`

`

`
`
`a. Exhibit 47: Opposer Gang Cao’s Responses to Applicant Apple Inc.’s Second Set
`
`of Interrogatories to Opposer Mr. Gang Cao, dated July 11, 2018.
`
`b. Exhibit 48: Opposer Gang Cao’s Objections and Responses to Applicant Apple
`
`Inc.’s Third Set of Interrogatories to Opposer Mr. Gang Cao, dated November 2,
`
`2018.
`
`These responses and objections may be introduced by notice of reliance pursuant to C.F.R.
`
`§ 2.120(k)(3)(i) and TBMP § 704.10. These exhibits are relevant to show Mr. Cao’s lack of
`
`standing to oppose registration of Apple’s LIVE PHOTOS mark; Mr. Cao’s lack of interest in, or
`
`use of, the phrase “live photos” or domain names containing the phrase “live photo”; the lack of
`
`damage or harm to Mr. Cao in the event Apple’s LIVE PHOTOS mark is registered; and the
`
`functionality of the apps Mr. Cao offers.
`
`14.
`
`Attached hereto as Exhibits 49–50 are printouts from publicly available websites
`
`showing engagement and visitor statistics for Apple’s website www.apple.com.
`
`a. Exhibit 49: A webpage from the web ranking website www.alexa.com showing
`
`the website ranking information for Apple’s website, printed on June 5, 2020
`
`from the URL https://www.alexa.com/siteinfo/apple.com.
`
`b. Exhibit 50: A webpage from the digital marketing service SimilarWeb showing
`
`information about Apple’s website, printed on August 7, 2020 from the URL
`
`https://www.similarweb.com/website/apple.com/.
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These materials are relevant to show that Apple’s LIVE PHOTOS mark has
`
`acquired secondary meaning and is not generic given the number of people likely to view the
`
`mark on Apple’s website where it is used as a trademark for Apple’s camera feature.
`
`14
`
`

`

`
`
`15.
`
`Attached hereto as Exhibit 51 is a collection of printouts from Apple’s publicly
`
`available website showing the technical specifications for various iPhone devices, all of which
`
`reference Apple’s Live Photos camera feature. The webpages in this composite exhibit are the
`
`following:
`
`a. Pages 1 - 7: “iPhone 6s - Technical Specifications”, printed on May 26, 2020
`
`from the URL https://support.apple.com/kb/SP726?locale=en_US;
`
`b. Pages 8 - 14: “iPhone 6s Plus - Technical Specifications”, printed on May 26,
`
`2020 from the URL https://support.apple.com/kb/SP727?locale=en_US;
`
`c. Pages 15 - 21: “iPhone 7 - Technical Specifications”, printed on May 26, 2020
`
`from the URL https://support.apple.com/kb/SP743?locale=en_US;
`
`d. Pages 22 - 28: “iPhone 7 Plus - Technical Specifications”, printed on May 26,
`
`2020 from the URL https://support.apple.com/kb/SP744?locale=en_US;
`
`e. Pages 29 - 35: “iPhone 8 - Technical Specifications”, printed on May 26, 2020
`
`from the URL https://support.apple.com/kb/SP767?locale=en_US;
`
`f. Pages 36 - 42: “iPhone 8 Plus - Technical Specifications”, printed on May 26,
`
`2020 from the URL https://support.apple.com/kb/SP768?locale=en_US;
`
`g. Pages 43 - 49: “iPhone 11 - Technical Specifications”, printed on May 26, 2020
`
`from the URL https://support.apple.com/kb/SP804?locale=en_US;
`
`h. Pages 50 - 56: “iPhone 11 Pro - Technical Specifications”, printed on May 26,
`
`2020 from the URL https://support.apple.com/kb/SP805?locale=en_US;
`
`i. Pages 57 - 63: “iPhone 11 Pro Max - Technical Specifications”, printed on May
`
`26, 2020 from the URL https://support.apple.com/kb/SP806?locale=en_US;
`
`15
`
`

`

`
`
`j. Pages 64 - 70: “iPhone X - Technical Specifications”, printed on May 26, 2020
`
`from the URL https://support.apple.com/kb/SP770?locale=en_US;
`
`k. Pages 71 - 77: “iPhone XR - Technical Specifications”, printed on May 26, 2020
`
`from the URL https://support.apple.com/kb/SP781?locale=en_US;
`
`l. Pages 78 - 84: “iPhone XS - Technical Specifications”, printed on May 26, 2020
`
`from the URL https://support.apple.com/kb/SP779?locale=en_US; and
`
`m. Pages 85 - 91: “iPhone XS Max - Technical Specifications”, printed on May 26,
`
`2020 from the URL https://support.apple.com/kb/SP780?locale=en_US.
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These materials are relevant to show that Apple’s LIVE PHOTOS mark has
`
`acquired secondary meaning and is not generic.
`
`16.
`
`Attached hereto as Exhibits 52–54 are printouts from Apple’s publicly available
`
`website showing its use of the LIVE PHOTOS mark in promotional materials such as press
`
`releases and sections of its website promoting new software.
`
`a. Exhibit 52: A January 8, 2017 press release from Apple titled “iPhone at ten: the
`
`revolution continues” printed on January 16, 2018 from the URL
`
`https://www.apple.com/newsroom/2017/01/iphone-at-ten-the-revolution-
`
`continues/.
`
`b. Exhibit 53: A page from Apple’s website titled “iOS 11,” printed on August 21,
`
`2018 from the URL https://www.apple.com/ios/ios-11/.
`
`c. Exhibit 54: A September 18, 2017 press release from Apple titled “iOS 11 is
`
`available tomorrow,” printed on August 21, 2018 from the URL
`
`https://www.apple.com/newsroom/2017/09/ios-11-available-tomorrow/.
`
`16
`
`

`

`
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These exhibits are relevant to show that the LIVE PHOTOS mark is
`
`suggestive, not descriptive; that Apple has acquired secondary meaning in the LIVE PHOTOS
`
`mark; that the LIVE PHOTOS mark is not generic; use of the LIVE PHOTOS mark as a
`
`trademark for Apple’s camera feature; and the functionality and promotion of Apple’s Live
`
`Photos camera feature.
`
`17.
`
`Attached hereto as Exhibit 55 is a copy of a press release that Apple issued on
`
`September 28, 2018 and that the Targeted News Service distributed titled “Apple Announces
`
`Record iPhone 6s & iPhone 6s Plus Sales,” retrieved from the LexisNexis database of news
`
`articles. This material may be introduced by notice of reliance pursuant to 37 C.F.R. §
`
`2.122(e)(1) and TBMP § 704.08(a), It is relevant to show that the LIVE PHOTOS mark is
`
`suggestive, not descriptive; that Apple has acquired secondary meaning in the LIVE PHOTOS
`
`mark; that the LIVE PHOTOS mark is not generic; use of the LIVE PHOTOS mark as a
`
`trademark for Apple’s camera feature; and the functionality and promotion of Apple’s Live
`
`Photos camera feature.
`
`18.
`
`Attached hereto as Exhibit 56 is a printout of an excerpt from the publicly
`
`available January 31, 2017 online article from TechCrunch, “Apple breaks iPhone sales record
`
`with 78.3 million units sold in the holiday quarter,” printed on January 30, 2018 from the URL
`
`https://techcrunch.com/2017/01/31/iphone-sales-q1-2017/. This document may be introduced by
`
`notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and TBMP § 704.08(b). It is relevant to
`
`show that Apple’s LIVE PHOTOS mark has acquired secondary meaning.
`
`17
`
`

`

`
`
`19.
`
`Attached hereto as Exhibits 57–59 are the following publicly available 10-K
`
`filings by Apple, filed with the Securities and Exchange Commission and printed from the SEC
`
`website:
`
`a. Exhibit 57: Apple’s 10-K for the fiscal year ended September 30, 2017, printed
`
`on May 27, 2020 from the URL
`
`https://www.sec.gov/Archives/edgar/data/320193/000032019317000070/a10-
`
`k20179302017.htm;
`
`b. Exhibit 58: Apple’s 10-K for the fiscal year ended September 29, 2018, printed
`
`on May 27, 2020 from the URL
`
`https://www.sec.gov/Archives/edgar/data/320193/000032019318000145/a10-
`
`k20189292018.htm; and
`
`c. Exhibit 59: Apple’s 10-K for the fiscal year ended September 28, 2019, printed
`
`on July 20, 2020 from the URL:
`
`https://www.sec.gov/Archives/edgar/data/320193/000032019319000119/a10-
`
`k20199282019.htm.
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These materials contain sales information related to Apple and its devices.
`
`They are relevant to show that Apple has acquired secondary meaning in the LIVE PHOTOS
`
`mark.
`
`20.
`
`Attached hereto as Exhibits 60–62 are printouts from the publicly available
`
`Google Trends website showing Google Trends data for various searches containing the phrase
`
`“live photos”:
`
`18
`
`

`

`
`
`a. Exhibit 60: A printout of Google Trends data for the search term “live photos”
`
`for the time period September 1, 2015 to October 25, 2018, printed on October
`
`25, 2018 from the URL https://trends.google.com/trends/explore?date=2015-09-
`
`01%202018-10-25&geo=US&q=live%20photos.
`
`b. Exhibit 61: A printout of Google Trends data for the search term “iphone 6 live
`
`photos” for the time period September 1, 2015 to October 25, 2018, printed on
`
`October 25, 2018 from the URL
`
`https://trends.google.com/trends/explore?date=2015-09-01%202018-10-
`
`25&geo=US&q=iphone%206%20live%20photos.
`
`c. Exhibit 62: A printout of Google Trends data for the search term “live photos”
`
`for the time period September 1, 2015 to July 31, 2020, printed on August 7, 2020
`
`from the URL https://trends.google.com/trends/explore?date=2015-09-
`
`01%202020-07-31&geo=US&q=live%20photos.
`
`These materials may be introduced by notice of reliance pursuant to 37 C.F.R. § 2.122(e)(2) and
`
`TBMP § 704.08(b). These materials are relevant to show that Apple’s LIVE PHOTOS mark has
`
`acquired secondary meaning and is not generic.
`
`21.
`
`Attached hereto as Exhibits 63–65 hereto are printouts of the publicly available
`
`websites for various tech companies showing that they describe their products for creating
`
`photographs that animate without using the phrase “live photo(s).”
`
`a. Exhibits 63: A printout from Samsung’s website titled “What is Motion Photo?,”
`
`printed on August 7, 2020 from the URL
`
`https://www.samsung.com/global/galaxy/what-is/motion-photo/.
`
`19
`
`

`

`
`
`b. Exhibit 64: A printout from the Google website titled “Take motion photos & use
`
`Top Shot on your Pixel phone,” printed August 7, 2020 from the URL
`
`https://support.google.com/googlecamera/answer/9937175?hl=en&ref_topic=616
`
`4365.
`
`c. Exhibit 65: A printout of a publicly available webs