Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`ESTTA1131629
`05/05/2021
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91251496
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`United States Polo Association Inc.
`
`DANIEL J BARSKY
`HOLLAND & KNIGHT LLP
`701 BRICKELL AVENUE SUITE 3300
`MIAMI, FL 33131
`UNITED STATES
`Primary Email: daniel.barsky@hklaw.com
`Secondary Email(s): Joanna.Crosby@hklaw.com, brian.murray@hklaw.com
`305-374-8500
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Motion to Compel Discovery or Disclosure
`
`Daniel J. Barsky
`
`daniel.barsky@hklaw.com, joanna.crosby@hklaw.com, ptdocketing@hklaw.com
`
`/daniel j. barsky/
`
`05/05/2021
`
`Motion to Compel.pdf(230409 bytes )
`Barsky Declaration.pdf(6135302 bytes )
`
`

`

`UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`UNITED STATES POLO ASSOCIATION, INC.,
`
`
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`
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`AMERICAN POLO ASSOCIATION, LLC,
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`
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`
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`
`
`
`
`
`
`v.
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`
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`
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`
`
`Opposer,
`
`Applicant.
`
`In the Matter of Trademark Application
`Nos: 88/194,362 and 88/194,367
`
`
`
`
`For the Mark:
`
`Publication Dates: July 9, 2019 and July
`16, 2019, respectively.
`
`Opposition No.: 91251496
`
`
`
`
`
`
`MOTION TO COMPEL
`APPLICANT’S RESPONSES TO OPPOSER’S REQUESTS FOR PRODUCTION
`
`Opposer, United States Polo Association, Inc. (“Opposer”), through counsel and pursuant
`
`to TBMP §§ 406.05(e), 411.02, and 523, and 37 C.F.R. §§ 2.120(e), hereby moves the Board to
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`enter an order compelling Applicant, American Polo Association, LLC (“Applicant”), to provide
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`amended and adequate responses to requests for production numbered 14, 15, 21, and 39 of
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`Opposer’s Second Set of Requests for the Production of Documents and Things Dated November
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`20, 2020 (the “Requests”) as Applicant’s responses are inadequate and clearly inaccurate.
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`I.
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`Introduction
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`The above-captioned proceeding is an opposition to Applicant’s trademark applications,
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`U.S. Serial Numbers 88/194,362 and 88/194,367 (the “Applications”). Opposer is opposing the
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`Applications on the grounds of, inter alia, likelihood of confusion, lack of bona fide use, failure
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`to function as a mark, the mark is not in lawful use in commerce, and fraud on the USPTO. 1
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`TTABVUE. As the above-captioned proceeding has progressed both Opposer and Applicant have
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`served discovery on each other.
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`
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`

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`At the same time, a different party, BHPC Associates LLC, is also opposing at least one of
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`the Applications under TTAB Opposition Number 91250065 (the “BHPC Opposition”).
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`II.
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`Factual Background
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`On November 20, 2020, Opposer served the Requests on Applicant. A copy of the
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`Requests is annexed hereto as Exhibit 1 to the Barsky Declaration, which is itself annexed hereto
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`as Exhibit A. After Opposer granted Applicant an extension of time to respond, Applicant
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`responded to the Requests on January 22, 2021, a copy of which is annexed hereto as Exhibit 2 to
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`the Barsky Declaration (the “Response”).
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`Requests 14, 15, 21, and 39 are at issue in the instant Motion. Those requests, and
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`Applicant’s responses thereto, are as follows:1
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`Request Number 14
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`Request
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`Response
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`Documents sufficient to show the volume (in
`dollars and units) of annual sales of goods or
`services labelled with Applicant’s Mark for
`each of the last five years.
`
`Applicant objects to this Request because it
`seeks the production of documents containing
`sensitive and proprietary business information.
`Applicant further objects to this Request
`insofar as it is unintelligible, vague, or
`otherwise unclear as to the precise documents
`sought.
`
`Subject to and without waiving the foregoing,
`Applicant responds as follows: Applicant has
`conducted a diligence search and made a
`reasonable inquiry and will produce non-
`privileged documents
`in
`its possession,
`custody, or control.
`
`
`
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`
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`1 See Exhibits 1 and 2 to Barsky Declaration.
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`Request Number 15
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`Request
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`Response
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`Documents sufficient to show, for each of the
`last five years, all amounts expended by
`Applicant on an annual basis to market goods
`or services labelled with Applicant’s Mark.
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`Applicant objects to this Request because it
`seeks the production of documents containing
`sensitive and proprietary business information.
`Applicant further objects to this Request
`insofar as it is unintelligible, vague, or
`otherwise unclear as to the precise documents
`sought.
`
`Subject to and without waiving the foregoing,
`Applicant responds as follows: Applicant has
`conducted a diligence search and made a
`reasonable inquiry and will produce non-
`privileged documents
`in
`its possession,
`custody, or control.
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`
`
`
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`Request Number 21
`
`Request
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`Response
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`Documents sufficient to identify all channels
`of trade through which Applicant advertises or
`promotes goods or services labeled with
`Applicant’s Mark.
`
`Applicant objects to this Request insofar as it
`is unintelligible, vague, or otherwise unclear as
`to the precise documents sought.
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`Subject to and without waiving the foregoing,
`Applicant responds as follows: Applicant has
`conducted a diligence search and made a
`reasonable inquiry and will produce non-
`privileged documents
`in
`its possession,
`custody, or control.
`
`Request Number 39
`
`Request
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`Response
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`Sales records for all goods or services sold
`under Applicant’s Mark.
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`Applicant objects to this Request because it is
`overbroad, indefinite as to time, and without
`reasonable limitation in its scope, particularly
`to the extent that it requests sales records for
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`and
`“all” goods
`Applicant’s Mark.
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`services
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`sold under
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`Subject to, and without waiving, the foregoing,
`Applicant responds as follows: Applicant has
`conducted a diligence search and made a
`reasonable inquiry and will produce non-
`privileged documents
`in
`its possession,
`custody, or control.
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`
`
`
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`Simultaneously with serving the Responses, Applicant produced documents responsive to
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`the Requests. Applicant produced no documents responsive to requests 14, 15, 21, or 39.
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`Applicant also did not produce a privilege log.
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`
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`Based upon Applicant’s representation that Applicant “has conducted a diligence search
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`and made a reasonable inquiry” and that Applicant “will produce non-privileged documents in its
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`possession, custody, or control”, and having been provided no responsive documents nor any
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`privilege log, Opposer accepted that there were no responsive documents to produce.
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`
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`However, it appears that is not the case. Opposer has been monitoring the proceedings in
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`the BHPC Opposition. On March 1, 2021, the opposer in the BHPC Opposition filed a Motion for
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`Summary Judgment (the “BHPC MSJ”). BHPC Opposition, 23 TTABVUE. In the BHPC MSJ,
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`as in the present proceeding, it was noted that “Applicant did not produce any sales or revenue
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`information, invoices, or purchase, orders for the Identified Goods bearing Applicant’s Mark.”
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`BHPC Opposition, 23 TTABVUE at 14.
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`
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`In response to the BHPC MSJ, Applicant admitted that sales and revenue documents – the
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`types of documents sought by requests 14, 15, 21, and 39 in this matter – do exist. Applicant stated
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`“Applicant’s disclosures may not have included sales or revenue information, invoices, or
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`purchase orders, but Opposer never requested that such materials be provided.” BHP Opposition,
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`25 TTABVUE at 8.2 Included in its opposition to the BHPC MSJ, Applicant provided the
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`Declaration of Mike Farah in Support of Applicant’s Brief in Opposition to Opposer’s Motion for
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`Summary Judgment and in Support of Applicant’s Cross-Motion for Summary Judgment, a copy
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`of which is included as Exhibit 4 to the Barsky Declaration (The “Farah Declaration”). In the
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`Farah Declaration, Michael Farah, the president of the Applicant, states that “[s]ince 2016,
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`Applicant has distributed approximately five hundred (500) branded shirts. At polo events, the
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`merchandise has been sold to spectators and fans of the club teams, as well as to the players.”
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`Exhibit 4 to Barsky Declaration at ⁋ 10.
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`
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`Surprised that Applicant’s CEO alleged that there were approximately 500 sales over a
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`period of over four years in the BHPC Opposition while simultaneously not providing any sales
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`records in the instant matter, counsel for Opposer commenced the meet-and-confer process with
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`counsel for Applicant. Copies of the meet-and-confer documents are annexed to the Barsky
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`Declaration as Composite Exhibit 5. On April 28, 2021, Applicant produced additional
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`documents, however none were responsive to requests 14, 15, 21, or 39. After reviewing same,
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`on April 30, counsel for Applicant requested confirmation whether there were any sales
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`documents; Applicants was response was “we have not been able to locate any transactional
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`records.” Barsky Declaration, Exhibit 5.
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`III. Analysis
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`This motion should be granted, because the Requests seek clearly relevant information and,
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`despite filing a declaration in a different matter that there are approximately 500 sales, Applicant
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`has failed to produce even a single document relating to any of those alleged sales. Alternatively,
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`the Board should enter an Order finding that Opposer has engaged in no sales or marketing
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`2 A copy of Applicant’s Response in Opposition to the BHPC MSJ is annexed as Exhibit 3 to the Barsky
`Declaration.
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`activities as a penalty for spoliation or prohibiting Applicant from relying upon any evidence of
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`sales or marketing. Finally, the Board should order Applicant to confirm it has produced all
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`documents responsive to Opposer’s Second Requests for Production.
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`A.
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`Responsive Documents Must Exist – They Have Not Been Produced.
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`Simply put, taking the Farah Declaration as true, there must exist some documents that are
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`responsive to request 14, 15, 21, or 39. Unless each and every one of the approximately 500 sales
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`was made via an all cash transaction, no receipts were provided, no sales tax was collected, no
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`sales revenue was reported (to the IRS or otherwise), the cash received for the sale of the items
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`was not deposited in any bank account, and the purchasers of the items found Applicant without a
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`single dollar spent on any type of advertising, there must be documents responsive to requests 14,
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`15, 21, or 39.
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`For example, documents showing expenditures for the polo events where the merchandise
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`was sold (Farah Declaration at ⁋ 10) would be responsive to requests 15 and 21 as they would
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`show “amounts expended by Applicant on an annual basis to market goods or services labelled
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`with Applicant’s Mark” (request 15) and “identify all channels of trade through which Applicant
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`advertises or promotes goods or services labeled with Applicant’s Mark” (request 21). Meanwhile,
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`items like sales receipts, bank statements showing deposits from sales, cancelled checks, and credit
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`card processing accounts would show “annual sales of goods or services labelled with Applicant’s
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`Mark for each of the last five years” (request 14) and “[s]ales records for all goods or services sold
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`under Applicant’s Mark.” (request 39). The foregoing are merely examples and are in no way
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`meant as limitations.
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`Given the Farah Declaration, it is simply not credible or believable that, with approximately
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`500 sales at various polo tournaments over a period of four years, there is not a single document
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`showing any marketing or sales.
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`B.
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`Alternatively, the Board Should Enter an Order Finding that Opposer has Not
`Engaged in Any Sales or Marketing or Excluding Evidence of Applicant’s
`Alleged Sales and Marketing.
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`As set forth above, it is extremely unlikely that Applicant sold approximately 500 shirts at
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`various polo tournaments over a period of four years and does not have a single document showing
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`the existence of any of those alleged tournaments or any of those alleged sales. If those documents
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`no longer exist it would be due to Applicant’s failure to maintain such documents.
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`“Under the spoliation of evidence rule, an adverse inference may be drawn against a party
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`who destroys relevant evidence.” Vodusek v. Bayliner Marine Corp., 71 F.3d 148, 155 (4th Cir.
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`1995). Spoliation refers to “the destruction or material alteration of evidence or the failure to
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`preserve property for another’s use as evidence in a pending or reasonably foreseeable litigation.”
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`Silvestri v. Gen. Motors Corp., 271 F.3d 583, 590 (4th Cir. 2001). Different tests apply depending
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`on whether the lost evidence is physical or electronic in nature (“ESI”).
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`For physical evidence, the movant must establish:
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`(1) that the party having control over the evidence had an obligation
`to preserve it at the time it was destroyed; (2) that the records were
`destroyed with a culpable state of mind; and (3) that the destroyed
`evidence was relevant to the party’s claim or defense such that a
`reasonable trier of fact could find that it would support that claim or
`defense.
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`Moody v. CSX Transp., Inc., 217 F. Supp. 3d 41, 424-25 (W.D.N.Y. 2017)(citation
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`omitted)(collecting cases). With respect to ESI, the Board must determine (1) whether the ESI
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`should have been preserved, (2) whether the ESI was lost, (3) whether the loss was due to a party’s
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`failure to take reasonable steps to preserve the ESI, and (4) that the ESI cannot be restored or
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`replaced through additional discovery. Fed. R. Civ. P. 37(e). If this test is satisfied the Board may
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`order measures no greater than necessary to cure the prejudice. Id.
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`Whether the evidence of sales and marketing was physical or digital, the applicable test is
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`satisfied. The evidence sought is sales and marketing records. Applicant’s CEO provided a
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`declaration in April 2021 stating that sales of relevant goods had occurred over the preceding four
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`years, that is from April 2017 to April 2021. The Applications claim a date of first use of April
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`22, 2014 and were filed on November 14, 2018. See Exhibits 6 and 7 to the Barsky Declaration.
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`It is foreseeable that, when applying to register an “in-use” mark at the USPTO and thereby
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`triggering a period of time in which an opposition can be filed, another party might challenge the
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`right to register a mark including, inter alia, whether the mark was actually being used at the time
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`of filing the application (in this case, November 14, 2018) and that the date of first sale might also
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`be challenged (in this case, April 22, 2014). The first element for spoliation of physical evidence
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`is therefore satisfied.
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`
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`The second element is also satisfied. While evidence of sales and marketing may
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`reasonably have been destroyed in the ordinary course of business prior to Applicant filing the
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`subject applications, as of November 14, 2018, with the knowledge that the applications may be
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`opposed, there is no legitimate reason, accidental or otherwise, to destroy evidence showing
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`marketing and sales of goods bearing the applied-for marks.
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`
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`Finally, the third element is satisfied. The applications are being opposed by not just one,
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`but two different parties on the basis that, inter alia, Applicant has no bona fide use of the applied-
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`for marks. Clearly, marketing and sales information is directly relevant to supporting the claims
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`and defenses brought in this proceeding. Therefore, the standard for spoliation of physical
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`evidence has been satisfied.
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`With respect to ESI, the test is also satisfied. If the sales and marketing information was
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`ESI, it should have been preserved for the same reasons set forth above. Based on the emails of
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`counsel for Applicant, that ESI is lost since it could not be found. As set forth above Applicant
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`had an obligation to take reasonable steps to preserve the ESI at least as of November 14, 2018
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`and clearly failed to do so since the ESI cannot be produced at this time despite Applicant’s
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`allegation that approximately 500 sales occurred. Finally, it is clear the ESI cannot be restored or
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`replaced since Applicant has had approximately one month to do so and has been unable.
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`
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`Because spoliation has been shown, the Board can draw an adverse interest against
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`Applicant. Vodusek. Therefore, the Board should grant this motion and enter an order against
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`Applicant either: (1) finding that Applicant did not have any sales and did not engage in any
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`marketing for the products bearing the applied-for mark or (2) prohibiting Applicant from
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`introducing any evidence of marketing or sales at trial.
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`C.
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`Applicant Should be Compelled to State Whether any Documents are Being
`Withheld from Production.
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`
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`Finally, the Board should order Applicant to definitively state whether any documents
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`responsive to the Second Requests for Production are being withheld from production. Each and
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`every response to the Second Requests for Production provided by Applicant contains a boilerplate
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`objection together with “notwithstanding” language. Counsel for Opposer requested confirmation
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`that all relevant documents had bene produced but counsel for Applicant has not provided such
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`confirmation. Given that Applicant recently produced additional documents to Opposer
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`responsive to the Second Requests, Applicant should be ordered to confirm that no further
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`responsive documents exist and none are being withheld based upon improper boilerplate
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`objections.
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`IV. Conclusion
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`This is the classic case of being hoist by one’s own petard. In this matter – alleging
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`Applicant fabricated specimens of use and evidence of offers for sale – when asked for documents
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`showing marketing and sales of marked products, Applicant failed to produce any documents.
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`Meanwhile, in a different proceeding with similar allegations (the BHPC Opposition), when
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`accused of having made no sales, Applicant responded with a declaration setting forth that there
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`were approximately 500 such sales and the reason there were no documents showing same was
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`because they had not been requested in discovery. However, that excuse does not work here where
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`the documents were clearly and explicitly requested in discovery. When confronted with this
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`contradiction Applicant has been unwilling or unable to produce any documents to show even a
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`single sale, let alone approximately 500, and the marketing attendant with same.
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`Applicant’s fraud upon the USPTO continues and the Board should put a stop to that fraud.
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`Either Applicant should be forced to turn over the documents showing the approximately 500 sales
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`and related marketing or the Board should enter an order establishing that Applicant either did not
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`have any sales or marketing in the last four years or is prohibited from introducing any evidence
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`of same. Applicant’s actions are egregious and must be stopped.
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`WHEREFORE, Opposer requests the Board issue an order either: (1) compelling Applicant
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`to produce documents responsive to requests 14, 15, 21, or 39 or (2) enter an order finding that
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`Applicant had no sales and engaged in no marketing or prohibiting Applicant from introducing
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`evidence of same, and (3) ordering Applicant to provide written confirmation that it has provided
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`all documents responsive to the Second Requests for Production and that no documents are being
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`withheld on the basis of a boilerplate objection, and for such other and further relief as the Board
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`deems appropriate.
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` /s/ Daniel J. Barsky
`Daniel J. Barsky, Esq.
`HOLLAND & KNIGHT LLP
`701 Brickell Avenue
`Suite 3300
`Miami, FL 33131
`(305) 374-8500
`daniel.barsky@hklaw.com
`
`Brian P. Murray, Esq.
`HOLLAND & KNIGHT LLP
`150 North Riverside Plaza
`Suite 2700
`Chicago, IL 60606
`(312) 263-3600
`brian.murray@hklaw.com
`
`Attorneys for Opposer United States Polo
`Association, Inc.
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`Dated: May 5, 2021
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`CERTIFICATE OF SERVICE
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`/s/ Daniel J. Barsky
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`Daniel J. Barsky, Esq.
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`I HEREBY CERTIFY that on May 5, 2021 I served a copy of the foregoing via electronic
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`mail on:
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`David N. Sharifi
`L.A. TECH & MEDIA LAW FIRM
`11620 Wilshire Boulevard
`9th Floor
`Los Angeles, California 90025
`david@latml.com
`301-757-0181
`Attorney for Applicant
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`UNITED STATES POLO ASSOCIATION, INC.,
`
`
`
`
`
`AMERICAN POLO ASSOCIATION, LLC,
`
`
`
`
`
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`
`
`
`
`
`
`v.
`
`
`
`
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`
`
`Opposer,
`
`Applicant.
`
`In the Matter of Trademark Application
`Nos: 88/194,362 and 88/194,367
`
`
`
`
`For the Mark:
`
`Publication Dates: July 9, 2019 and July
`16, 2019, respectively.
`
`Opposition No.: 91251496
`
`
`
`
`
`
`
`
`DECLARATION OF DANIEL J. BARSKY
`IN SUPPORT OF MOTION TO COMPEL APPLICANT’S
`RESPONSES TO OPPOSER’S SECOND REQUESTS FOR PRODUCTION
`
`
`Exhibit A
`
`

`

`I, Daniel J. Barsky, declare as follows:
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`1.
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`I am a partner at the law firm of Holland & Knight LLP and lead counsel for
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`Opposer, United States Polo Association, Inc. (“Opposer”) in the above-captioned matter.
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`2.
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`I submit this Declaration in support of Opposer’s Motion to Compel Applicant’s
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`Responses to Opposer’s Second Requests for Production (the “Motion”).
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`3.
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`I am over the age of eighteen years of age and am competent to make the statements
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`contained within this Declaration, which statements are made based upon my personal knowledge.
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`If called to testify I could and would testify competently to the matters stated herein.
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`4.
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`Attached hereto as Exhibit 1 is a true and correct copy of the Second Requests for
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`Production that were served by Opposer on Applicant.
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`5.
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`Attached hereto as Exhibit 2 is a true and correct copy of Applicant’s Responses
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`to the Second Requests for Production that were served by Applicant on Opposer.
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`6.
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`Attached hereto as Exhibit 3 is a true and correct copy of Applicant’s Response in
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`Opposition to Motion for Summary Judgment etc. filed in the BHPC Opposition.
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`7.
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`Attached hereto as Exhibit 4 is a true and correct copy of the Farah Declaration
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`filed in the BHPC opposition.
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`8.
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`Attached hereto as Composite Exhibit 5 are true and correct copies of the meet-
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`and-confer correspondence between counsel related to their efforts to resolve the issue brought
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`forth in the Motion.
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`9.
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`I have had multiple telephone and written communications with counsel for
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`Applicant in an attempt to resolve the dispute set forth in the Motion. Specifically, I spoke via
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`telephone with counsel for Applicant on April 5 and April 16, 2021, sent a written letter on April
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`21, 2021, and engaged in email correspondence on April 5, 7, 13, 23, 28, 29, 30 and May 3 and 4,
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`2021. Despite these multiple attempts, counsel have been unable to resolve the dispute set forth
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`in the Motion.
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`I, DANIEL J. BARSKY, declare under the penalty of perjury under the laws of the United States
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`of America that the foregoing is true and correct.
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`
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`Dated: May 5, 2021
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`/s/ Daniel J. Barsky
`Daniel J. Barsky
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`#84100521_v1
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`
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`UNITED STATES POLO ASSOCIATION, INC.,
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`AMERICAN POLO ASSOCIATION, LLC,
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`v.
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`Opposer,
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`Applicant.
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`In the Matter of Trademark Application
`Nos: 88/194,367 and 88/194,367
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`For the Mark:
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`Publication Dates: July 9, 2019 and July
`16, 2019, respectively.
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`Opposition No.: 91251496
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`OPPOSER’S AMENDED FIRST SET OF REQUESTS
`FOR THE PRODUCTION OF DOCUMENTS AND THINGS (Nos. 1-43)
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`Pursuant to Rules 26 and 34 of the Federal Rules of Civil Procedure, Rule 2.120 of the
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`Trademark Rules of Practice, and the November 18, 2020 Order (15 TTABVUE), Opposer United
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`States Polo Association, Inc. (“Opposer” or “USPA”), requests that Applicant American Polo
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`Association, LLC (“Applicant”) produce the documents and things requested herein within
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`thirty (30) days of service to the offices of Holland & Knight LLP, 701 Brickell Avenue,
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`Suite 3300, Miami, FL 33131, or at such other time and place as may be mutually agreed
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`upon by the parties, and permit Opposer to inspect and copy documents and objects listed below
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`in each of the categories, in accordance with the instructions and definitions below.
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`DEFINITIONS
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`For purposes of these Requests, the terms and phrases set forth below shall have the
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`following meanings:
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`1.
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`2.
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`The term “Opposer,” as used herein, means United States Polo Association, Inc.
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`The term “USPA” as used herein means United States Polo Association, Inc.
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`Exhibit 1
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`3.
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`The terms “and” and “or” shall be construed either conjunctively or disjunctively
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`as necessary to bring within the scope of these requests all documents that might otherwise be
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`construed to be outside the scope of a request.
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`4.
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`The terms “any” or “each” should be construed to encompass “all.” The term “any”
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`includes both “any” and “every.” “All” should be construed to include and encompass “any.”
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`5.
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`The term “communication” means any transmission of information (in the form of
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`facts, ideas, inquiries, or otherwise) by any means, including, but not limited to, e-mails, letters,
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`PowerPoint (or other slide or chart presentations), Excel (or other spreadsheets), written or oral
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`memoranda or reports,
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`telephone conversations, face-to-face conversations, other oral
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`communications,
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`facsimile
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`transmissions,
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`telegrams,
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`telexes,
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`teletypes,
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`telexes, or
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`communications mediated or transmitted by, through, or with the assistance of any electronic
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`computational, transmission or storage device and any log, index, recording, or other record of any
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`such communication.
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`6.
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`The term “concerning” means, referring to, describing, evidencing or constituting,
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`and shall be construed in the broadest sense to require the production of all documents or things
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`which contain or comprise any communication that refers to and documents that discuss, mention,
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`or pertain to the subject matter of the request.
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`7.
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`The terms “Opposition” or “Current Proceeding” means the opposition proceeding
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`entitled United States Polo Association, Inc. v. American Polo Association, LLC, Opposition No.
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`91251496, pending before the TTAB.
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`8.
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`The term “Applicant’s Mark” refers to the mark identified in the Applications, as
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`defined below, as well as other similar or related marks or all variations thereof used by Applicant,
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`and all common law trademark rights Applicant claims in the trademarks.
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`- 2 -
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`9.
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`The term “Opposer’s Marks” refers to all marks registered to the United States Polo
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`Association, Inc., including without limitation U.S. Trademark Registration Nos. 1181651,
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`1304236, 1677088, 1782639, 1804895, 1808138, 2629444, 2908391, 2991639, 3367242,
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`3370932, 3383427, 3497213, 3729640, 4240202, 4369306, 4415233, 4526610, 4799969,
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`5277188, and 5568982, as well as other similar or related marks or all variations thereof used by
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`Opposer and all common law trademark rights Opposer claims in the trademarks.
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`10.
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`The term “Disclose” means to identify, describe, explain, reveal, demonstrate,
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`show, display, exhibit, illustrate, exemplify, refer to, or relate to.
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`11.
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`The term “Document” includes the plural as well as the singular, and has the
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`broadest possible meaning as set forth in Federal Rule of Civil Procedure 34(a). A draft or non-
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`identical copy, including any copies with attached notes, is a separate document within the
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`meaning of this term. The term “document” shall further mean anything discoverable under
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`Federal Rule of Civil Procedure 45 and/or 34(a), including but not limited to any electronically
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`stored information or tangible thing upon which any expression, communication or representation
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`has been recorded by any means including, but not limited to, handwriting, typewriting, printing,
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`photostatting, photographing, magnetic impulse, or mechanical or electronic recording and any
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`non-identical copies (whether different from the original because of, notes made on such copies,
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`because of indications that said copies were sent to different individuals than were the originals,
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`or because of any other reason), including but not limited to working papers, preliminary,
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`intermediate or final drafts, correspondence, memoranda, charts, notes, records of any sort of
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`meetings, invoices, financial statements, financial calculations, diaries, reports of telephone or
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`other oral conversations, desk calendars, appointment books, audio or video tape recordings,
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`microfilm, microfiche, computer tape, computer disk, computer printout, computer card, electronic
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`- 3 -
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`mail, and all other writings and recordings of every kind that are in your actual or constructive
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`possession, custody or control.
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`12.
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`The term “including” shall be construed broadly, as “including but not limited to”
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`or “including without limitation.”
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`13.
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`The term “person” means any natural person, business entity, whether a
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`corporation, partnership, limited partnership, association, unincorporated association, firm, or joint
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`venture, any governmental body or entity, whether a government agency, board, division, or
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`department, or any other entity, and its directors, officers, employees, partners, employees, former
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`employees, agents, and representatives.
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`14.
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`The term “APA” as used herein, means American Polo Association, LLC and all
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`past or present parents, subsidiaries, members, and/or affiliated or controlled entities or joint-
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`ventures thereof, and any person or entity, past or present, acting or purporting to act on their
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`behalf, including, but not limited to: all past and present officers, directors, executives, partners,
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`employees, affiliates, attorneys, accountants, agents, consultants, representatives, and contracted
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`facilities or service providers, as well as persons acting or purporting to act on their behalf.
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`15.
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`The terms “Applicant,” “you,” or “your,” as used herein, means APA, and all past
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`or present parents, subsidiaries, members, and/or affiliated or controlled entities or joint-ventures
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`thereof, and any person or entity, past or present, acting or purporting to act on their behalf,
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`including, but not limited to: all past and present officers, directors, executives, partners,
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`employees, affiliates, attorneys, accountants, agents, consultants, representatives, and contracted
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`facilities or service providers, as well as persons acting or purporting to act on their behalf.
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`16.
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`The term “prosecution” means any filing, registration, examination, opposition or
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`other proceeding or communication before any agency or authority concerning the Applications,
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`- 4 -
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`and any related Applications, including, but not limited to, any proceeding before the United States
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`Patent and Trademark Office or the Trademark Trial and Appeal Board.
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`17.
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`18.
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`19.
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`The term “PTO” means the Unites States Patent and Trademark Office.
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`The term “TTAB” means the Trademark Trial and Appeal Board.
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`The term “Related Proceedings” means any proceedings concerning the
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`Applications including any other oppositions before the TTAB or litigation in any United States
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`court concerning the Applications, other than the Current Proceeding.
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`20.
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`The term “relating to,” or any derivation thereof shall mean, without limitation,
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`being in any way legally, logically, or factually connected with the matter discussed.
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`The term “Applications” means the ’362 and ’367 applications, defined below.
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`The term “’362 application” means United States Trademark Application No.
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`21.
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`22.
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`88/194,362.
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`23.
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`The term “’367 application” means United States Trademark Application No.
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`88/194,367.
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`24.
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`The term “thing” means any tangible item other than a document including, without
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`limitation, compositions, samples, formulations, and preparations.
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`25.
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`26.
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`The use of the singular form of any word includes the plural and vice versa.
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`The use of the present tense shall include the past tense and vice versa.
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`INSTRUCTIONS
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`Responses to these requests should include all documents and things in Applicant’s
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`possess