ESTTA Tracking number:
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`ESTTA1406550
`
`Filing date:
`
`01/07/2025
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
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`91285540
`
`Party
`
`Correspondence
`address
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`Submission
`
`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
`
`Defendant
`JooJoo Enterprises Limited
`
`JOHN L. KRIEGER
`DICKINSON WRIGHT PLLC
`3883 HOWARD HUGHES PARKWAY, SUITE 800
`LAS VEGAS, NV 89169
`UNITED STATES
`Primary email: jkrieger@dickinsonwright.com
`Secondary email(s): cvillanueva@dickinsonwright.com, trademark-
`slv@dickinsonwright.com
`702-550-4400
`
`Opposition/Response to Motion
`
`John L. Krieger
`
`jkrieger@dickinson-wright.com, amoretto@dickinson-wright.com
`
`/John L. Krieger/
`
`01/07/2025
`
`2025-01-07 Opposition to Motion to Quash.pdf(153700 bytes )
`Exhibit 1 - Email Exchange.pdf(242364 bytes )
`Exhibit 2 - 2024-12-11 NOTICE OF RULE 30b6 DEPOSITION OF OP-
`POSER.pdf(162258 bytes )
`Exhibit 3 - NOTICE OF RULE 30b6 DEPOSITION OF OPPOSER ON WRITTEN
`QUES TIONS.pdf(164070 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`Opposition No. 91285540
`
`Ser. No. 90/861,211
`
`Mark: FLIP
`
`
`
`Opposer,
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`Applicant.
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`
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`
`
`
`
`v.
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`
`
`Flip GmbH,
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`
`
`
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`JooJoo Enterprises Limited,
`
`
`
`
`
`
`
`
`
`
`
`
`
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`
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`
`
`
`
`APPLICANT’S RESPONSE IN OPPOSITION TO OPPOSER’S
`MOTION TO QUASH APPLICANT’S NOTICE OF RULE 30(b)(6)
`DEPOSITION
`
`Applicant JooJoo Enterprises Limited (“Applicant”), by and through the undersigned
`
`counsel, files this Response in Opposition to Opposer Flip GmbH’s (“Opposer’s”) Motion to
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`Quash Applicant’s Notice of Deposition of Rule 30(b)(6) Deposition (“Motion”).
`
`First, Opposer failed to make the requisite good faith effort to resolve the dispute
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`identified in its Motion. Despite having objected to Applicant’s Rule 30(b)(6) deposition notice
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`on another ground, Opposer never notified Applicant of the issue raised in the Motion. Second,
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`Opposer’s sole ground for its Motion—that Applicant failed to provide reasonable notice of the
`
`deposition—is based on an abridged set of facts and devoid of any legal support. Applicant
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`provided Opposer with at least nine days’ notice of the deposition, which timing is more than
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`reasonable under the circumstances. Accordingly, the Board should deny Opposer’s Motion and
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`all the relief requested therein, and order Opposer’s Rule 30(b)(6) witness to respond to
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`Applicant’s properly noticed written deposition questions.
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`
`
`
`
`1
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`

`

`
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`I.
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`BACKGROUND
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`Opposer conveniently fails to mention that Applicant first served the Notice of Rule
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`30(b)(6) deposition on Opposer on December 11, 2024, seeking to take an oral deposition on
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`December 20, 2024 (“December 11 Notice”), and thus provided Opposer with nine (9) days’
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`notice. (Exhibit 1.) The December 11 Notice included Schedule A, which lists the deposition
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`topics. (Exhibit 2, December 11 Notice.)
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`That same day, Applicant’s counsel further requested confirmation from Opposer as to
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`whether any person(s) designated for the topics listed Schedule A in the December 11 Notice
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`resided outside the United States and, if so, requested that Opposer “identify who the person is,
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`what their title is, and which topics they are designed to address.” (Exhibit 1.) Opposer’s counsel
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`simply responded by stating that the persons to be designated would reside outside of the US and
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`that the depositions, therefore, must be taken by written questions. (Id.) Applicant’s counsel
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`requested confirmation that Opposer would not consent to an oral deposition, to which Opposer’s
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`counsel, on Friday, December 13, 2024, indicated the deposition must be taken by written
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`questions. (Id.)
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`At no time during the exchange between counsel did Opposer’s counsel indicate the
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`December 20, 2024 date noticed in the December 11 Notice was unreasonable or would not work
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`for Opposer’s designee(s) or seek to meet and confer with counsel about the date. (Id.)
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`Given Opposer’s stance on the oral deposition, Applicant prepared a Notice of Rule
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`30(b)(6) by Written Questions, which included questions covering the topics originally listed in
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`Schedule A to the December 11 Notice (“Revised Notice”). The Revised Notice was filed with the
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`Board and served on Opposer on Monday, December 16, 2024, just one business day after Opposer
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`confirmed that the Rule 30(b)(6) deposition must be taken by written questions. The Revised
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`2
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`

`

`
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`Notice retained the original deposition date of December 20, 2024, as Opposer never objected to
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`the date and time listed in the original December 11 Notice.
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`The next day, after serving and filing the Revised Notice, Applicant again sought
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`information about the individuals to be deposed so that it could make arrangements for the
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`deposition to take place near where the deponent(s) reside. (Exhibit 3.) Counsel for Opposer never
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`responded to the email. Instead, two days before the scheduled deposition, Opposer filed its
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`Motion.
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`II.
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`ARGUMENT
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`The Board should deny Opposer’s Motion to Quash because: (i) Opposer failed to make
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`the requisite good faith effort to resolve the dispute identified in its Motion; and (ii) Applicant
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`provided Opposer with reasonable notice of the Rule 30(b)(6) deposition.
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`A.
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`Opposer’s Motion Quash Should Be Denied Because Opposer Has Not Made
`a Good Faith Effort to Resolve the Dispute Raised in Its Motion.
`
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`Trademark Rule 2.120(f)(1) provides that a discovery motion “must be supported by a
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`showing from the moving party that such party or the attorney therefor has made a good faith
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`effort, by conference or correspondence, to resolve with the other party or the attorney therefore
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`the issues presented in the motion but the parties were unable to resolve their differences.” 37
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`C.F.R. § 2.120(f)(1); see TBMP § 523.02.
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`Despite having nine days’ notice of Applicant’s Rule 30(b)(6) deposition and objecting to
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`it on another ground, Opposer never notified Applicant of an issue with the December 20
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`deposition date set forth in both the December 11 Notice and December 16 Revised Notice.
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`Opposer’s failure demonstrates that it did not act in good faith to resolve the dispute it now brings
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`before the Board. Sukljian v. Ate my Heart Inc., et al, 2015 WL 496140, at *3 (TTAB Jan. 20,
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`2015) (citing TBMP § 404.01 and acknowledging it is not unusual for a deposing party to notice
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`
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`3
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`

`

`
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`a deposition and subsequently discuss alternative dates with the party deposed and sanctioning a
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`party for failing to appear for a deposition where the party failed to discuss rescheduling the
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`deposition and just failed to attend). Because Opposer made no such effort, its Motion should be
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`denied.
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`B.
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`Opposer’s Motion to Quash Should Be Denied Because Applicant Provided
`Opposer with Reasonable Notice of the Rule 30(b)(6) Deposition.
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`At the outset, Applicant notes that the Board need not reach the question of the
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`reasonableness of Applicant’s deposition notice to Opposer because Opposer failed its obligation
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`to make a good faith effort to resolve the dispute relating thereto. Nevertheless, to the extent the
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`Board reaches this question, it should deny Opposer’s Motion because Applicant’s nine (9) days’
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`notice to Opposer was reasonable.
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`“In an inter partes proceeding before the Board, the discovery deposition of a natural person
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`who is a party… or a person designated under Fed. R. Civ. P. 30(b)(6) … may be taken on notice
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`alone. Prior to the taking of a discovery deposition on notice alone, the party seeking to take the
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`deposition (‘the deposing party’) must give reasonable notice in writing to every adverse party.”
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`TBMP § 404.05. The Federal Rules of Civil Procedure, Rule 30 only provides that “the notice be
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`reasonable under the circumstances” and does not expressly state a required time frame, e.g.,
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`number of days. The Board has interpreted what constitutes “reasonable under the circumstances”
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`broadly. For example, notice was found reasonable even with just a three-day notice, or even six
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`days’ notice. Duke University v. Haggar Clothing Co., 54 USPQ2d 1443, 1444 (TTAB 2000)
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`(whether notice is reasonable depends upon the circumstances of each case; one- and two-day
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`notices were not reasonable without compelling need for such haste, but three-day notice was
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`reasonable); Sunrider Corp. v. Raats, 83 USPQ2d 1648, 1653 (TTAB 2007) (six days’ notice
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`reasonable); Hamilton Burr Publishing Co. v. E. W. Communications, Inc., 216 USPQ 802, 804
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`4
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`

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`n.6 (TTAB 1982) (two-day notice of deposition, although short, was not unreasonable).
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`Here, Applicant provided Opposer’s counsel with at least nine (9) days’ notice of the
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`30(b)(6) deposition, which is certainly sufficient and reasonable under the circumstances,
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`particularly given the impending discovery deadline of December 23, 2024, of which all parties
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`were well aware. Opposer’s counsel never raised any concerns with the December 20 date included
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`in the December 11 Notice. As such, the Revised Notice (served on December 16), which was
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`necessitated by Opposer’s demand that the deposition be taken by written questions, retained the
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`December 20 date. Even assuming arguendo that Applicant provided Opposer with only four (4)
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`days’ notice, as Opposer contends, the Board has held such notice is still reasonable. See Duke
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`University, 54 USPQ2d at 1444. If Opposer could not coordinate its deponent(s) to attend the
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`December 20 noticed date, Opposer could have reached out to Applicant and sought to meet and
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`confer as required by the Rules. See TBMP § 404.01 (“[I]t is not unusual for the deposing party to
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`notice a deposition and subsequently discuss alternative dates with the party to be deposed.”);
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`TBMP §408 (duty of the parties to cooperate in discovery). Instead, Opposer filed this Motion on
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`the eve of the deposition in a transparent effort to avoid its discovery obligations. In short, Opposer
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`could have avoided its motion practice if it had raised its objections to the date at any point after
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`the December 11 Notice was served.
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`III. CONCLUSION
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`WHEREFORE, Applicant respectfully requests that:
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`1. the Board deny Opposer’s Motion to Quash;
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`2. the Board compel Opposer’s Rule 30(b)(6) witness(es) to respond to the properly
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`noticed written deposition questions; and,
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`3. the Board rule any deposition testimony taken pursuant to Applicant’s Revised
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`5
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`

`

`
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`Notice of December 16, 2024 be considered timely.
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`Date: January 7, 2025.
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`Respectfully Submitted,
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`DICKINSON WRIGHT PLLC
`
`
`
`/John L. Krieger/
`John L. Krieger, Esq.
`Cindy A. Villanueva, Esq.
`jkrieger@dickinsonwright.com
`cvillanueva@dickinsonwright.com
`trademarkslv@dickinsonwright.com
`3883 Howard Hughes Parkway, Suite 800
`Las Vegas, Nevada 89169
`(702) 550-4400 (phone)
`
`
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`6
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`

`

`
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`CERTIFICATE OF SERVICE
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`I do hereby certify that on January 7, 2025, I served a true and correct copy of
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`APPLICANT’S RESPONSE IN OPPOSITION TO OPPOSER’S MOTION TO QUASH
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`APPLICANT’S NOTICE OF RULE 30(b)(6) DEPOSITION on the following counsel of
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`record via email:
`
`YOURTRADEMARKATTORNEY.COM
`Morris E. Turek
`167 Lamp and Lantern Village, #220
`Chesterfield, MO 63017-8208
`Morris@yourtrademarkattorney.com
`
`
`
`
`
`
` /s/ Ashley B. Moretto
` An Employee of Dickinson Wright PLLC
`
`
`
`7
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`

`

`
`
`Flip GmbH v. JooJoo Enterprises Limited
`Opposition No. 91285540
`
`
`
`
`
`EXHIBIT 1
`
`Flip GmbH v. JooJoo Enterprises Limited
`Opposition No. 91285540
`
`

`

`John L. Krieger
`
`From:
`Sent:
`To:
`Cc:
`Subject:
`
`
`
`Dear John,
`
`Morris E. Turek <morris@yourtrademarkattorney.com>
`Friday, December 13, 2024 12:06 PM
`John L. Krieger (he/him/his)
`Cindy A. Villanueva; Ashley B. Moretto
`RE: JooJoo Enterprises Limited adv. Flip GmbH / Opposition No. 91285540 - Notice of
`30(b)(6) Deposition
`
`The person Flip would designate is not in the USA. My client does not consent to an oral deposition.
`
`Thank you,
`Morris
`
`Morris E. Turek
`Attorney at Law
`167 Lamp and Lantern Village, #220
`Chesterfield, MO 63017-8208
`(314) 749-4059
`morris@yourtrademarkattorney.com
`
`From: John L. Krieger (he/him/his) <JKrieger@dickinson-wright.com>
`Sent: Friday, December 13, 2024 1:02 PM
`To: Morris E. Turek <morris@yourtrademarkattorney.com>
`Cc: Cindy A. Villanueva <CVillanueva@dickinson-wright.com>; Ashley B. Moretto <AMoretto@dickinson-wright.com>
`Subject: Re: JooJoo Enterprises Limited adv. Flip GmbH / Opposition No. 91285540 - Notice of 30(b)(6) Deposition
`
`Hi Morris:
`
`Have you been able to confirm whether any corporate representative is located in the U.S. on certain topics, what those topics are,
`or if your client will stipulate to an oral deposition. Let me know ASAP. Thanks.
`
`John
`
`Sent from my iPhone - please excuse any spelling and/or syntax errors
`
`John L. Krieger (he/him/his)
`
`
`
`Member
`O: 702-550-4439
`JKrieger@dickinsonwright.com
`
`
`
`
`
`3883 Howard Hughes Parkway, Suite 800, Las Vegas, NV 89169
`
`
`
`On Dec 11, 2024, at 2:49 PM, Morris E. Turek <morris@yourtrademarkattorney.com> wrote:
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`1
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`

`

`John,
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`I need to confirm on both counts. But, assuming there is nobody in the U.S., I don’t think it’s
`likely my client would agree to an oral deposition.
`
`Sincerely,
`Morris
`
`Morris E. Turek
`Attorney at Law
`167 Lamp and Lantern Village, #220
`Chesterfield, MO 63017-8208
`(314) 749-4059
`morris@yourtrademarkattorney.com
`
`From: John L. Krieger (he/him/his) <JKrieger@dickinson-wright.com>
`Sent: Wednesday, December 11, 2024 3:46 PM
`To: Morris E. Turek <morris@yourtrademarkattorney.com>
`Cc: Cindy A. Villanueva <CVillanueva@dickinson-wright.com>; Ashley B. Moretto <AMoretto@dickinson-
`wright.com>
`Subject: RE: JooJoo Enterprises Limited adv. Flip GmbH / Opposition No. 91285540 - Notice of 30(b)(6)
`Deposition
`
`Morris:
`
`As a follow up, is it Flip’s position that it will not stipulate to an oral deposition of its 30b6
`representatives? Trademark Rule 2.120(c)(1) allows the parties to stipulate to allow foreign depositions
`to be taken orally.
`Let us know Flip’s position.
`
`John
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`<image001.png>
`<image002.png>
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`<image003.png>
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`John L. Krieger (he/him/his)
`Member
`O:702-550-4439
`JKrieger@dickinsonwright.com
`
`
`
`
`
`3883 Howard Hughes Parkway, Suite 800, Las Vegas, NV 89169
`
`From: John L. Krieger (he/him/his)
`Sent: Wednesday, December 11, 2024 1:26 PM
`To: Morris E. Turek <morris@yourtrademarkattorney.com>
`Cc: Cindy A. Villanueva <CVillanueva@dickinson-wright.com>; Ashley B. Moretto <AMoretto@dickinson-
`wright.com>
`Subject: RE: JooJoo Enterprises Limited adv. Flip GmbH / Opposition No. 91285540 - Notice of 30(b)(6)
`Deposition
`
`Morris:
`
`2
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`

`

`To confirm – it is your representation that Flip does not have a person located in the United States who
`can testify to any of the topics listed. If that is the case, we will prepare written questions.
`
`John
`
`
`
`From: Morris E. Turek <morris@yourtrademarkattorney.com>
`Sent: Wednesday, December 11, 2024 12:30 PM
`To: John L. Krieger (he/him/his) <JKrieger@dickinson-wright.com>
`Cc: Cindy A. Villanueva <CVillanueva@dickinson-wright.com>; Ashley B. Moretto <AMoretto@dickinson-
`wright.com>
`Subject: RE: JooJoo Enterprises Limited adv. Flip GmbH / Opposition No. 91285540 - Notice of 30(b)(6)
`Deposition
`
`
`John,
`
`I believe the person(s) to be designated reside outside of the US. If I’m not mistaken, that would
`require deposition on written questions. 37 CFR 2.120(c). If you believe I’m mistaken, please
`point me to the relevant authorities.
`
`
`Thank you,
`Morris
`
`
`Morris E. Turek
`Attorney at Law
`167 Lamp and Lantern Village, #220
`Chesterfield, MO 63017-8208
`(314) 749-4059
`morris@yourtrademarkattorney.com
`
`
`
`From: John L. Krieger (he/him/his) <JKrieger@dickinson-wright.com>
`Sent: Wednesday, December 11, 2024 1:00 PM
`To: Morris E. Turek <morris@yourtrademarkattorney.com>
`Cc: Cindy A. Villanueva <CVillanueva@dickinson-wright.com>; Ashley B. Moretto <AMoretto@dickinson-
`wright.com>
`Subject: RE: JooJoo Enterprises Limited adv. Flip GmbH / Opposition No. 91285540 - Notice of 30(b)(6)
`Deposition
`Importance: High
`
`
`Hi Morris:
`
`
`As a follow up to the Rule 30(b)(6) notice, please let us know ASAP if any person(s) designated for the
`topics listed therein reside outside of the United States. If that is the case, please identify who the
`person is, what their title is, and which topics they are designed to address. Thanks in advance.
`
`John
`
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`<image001.png>
`<image002.png>
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`John L. Krieger (he/him/his)
`Member
`O:702-550-4439
`JKrieger@dickinsonwright.com
`
`
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`
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`3
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`

`

`<image003.png>
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`3883 Howard Hughes Parkway, Suite 800, Las Vegas, NV 89169
`
`
`
`
`
`From: Ashley B. Moretto <AMoretto@dickinson-wright.com>
`Sent: Wednesday, December 11, 2024 10:55 AM
`To: Morris E. Turek <morris@yourtrademarkattorney.com>
`Cc: John L. Krieger (he/him/his) <JKrieger@dickinson-wright.com>; Cindy A. Villanueva
`<CVillanueva@dickinson-wright.com>
`Subject: JooJoo Enterprises Limited adv. Flip GmbH / Opposition No. 91285540 - Notice of 30(b)(6)
`Deposition
`
`
`Hi Morris,
`
`
`On behalf of Mr. John L. Krieger, I have attached a Notice of Deposition.
`
`
`Kind regards,
`Ashley
`
`
`
`
`
`<image001.png>
`<image002.png>
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`
`
`Ashley B. Moretto
`Office Manager
`O: 702-550-4464
`AMoretto@dickinsonwright.com
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`
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`<image003.png>
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`
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`3883 Howard Hughes Parkway, Suite 800, Las Vegas, NV 89169
`
`
`
`
`
`
`
`The information contained in this e-mail, including any attachments, is confidential, intended
`only for the named recipient(s), and may be legally privileged. If you are not the intended
`recipient, please delete the e-mail and any attachments, destroy any printouts that you may have
`made and notify us immediately by return e-mail. Neither this transmission nor any attachment
`shall be deemed for any purpose to be a "signature" or "signed" under any electronic
`transmission acts, unless otherwise specifically stated herein. Thank you.
`The information contained in this e-mail, including any attachments, is confidential, intended
`only for the named recipient(s), and may be legally privileged. If you are not the intended
`recipient, please delete the e-mail and any attachments, destroy any printouts that you may have
`made and notify us immediately by return e-mail. Neither this transmission nor any attachment
`shall be deemed for any purpose to be a "signature" or "signed" under any electronic
`transmission acts, unless otherwise specifically stated herein. Thank you.
`
`The information contained in this e-mail, including any attachments, is confidential, intended only for the
`named recipient(s), and may be legally privileged. If you are not the intended recipient, please delete the e-mail
`and any attachments, destroy any printouts that you may have made and notify us immediately by return e-mail.
`Neither this transmission nor any attachment shall be deemed for any purpose to be a "signature" or "signed"
`under any electronic transmission acts, unless otherwise specifically stated herein. Thank you.
`
`4
`
`

`

`Flip GmbH v. JooJoo Enterprises Limited
`Opposition No. 91285540
`
`EXHIBIT 2
`
`Flip GmbH v. JooJoo Enterprises Limited
`Opposition No. 91285540
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Flip GmbH,
`
`
`
`
`
`JooJoo Enterprises Limited,
`
`
`
`
`
`Opposition No. 91285540
`
`Ser. No. 90/861,211
`
`Mark: FLIP
`
`
`
`Opposer,
`
`Applicant.
`
`
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`
`
`NOTICE OF RULE 30(b)(6) DEPOSITION OF
`OPPOSER FLIP GMBH
`
`Please take notice that, pursuant to Federal Rule of Civil Procedure 30(b)(6), Applicant
`
`JooJoo Enterprises Limited (“JooJoo”) will take the testimony upon oral deposition of Opposer
`
`Flip GmbH (“Opposer”) on Friday, December 20, 2024 at 9:00 AM PT commencing remotely via
`
`Teams (with instructions to be provided). The deposition will be taken before a Notary public or
`
`other person duly authorized by law to administer oaths, and will be conducted pursuant to the
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`provisions of the Federal Rules of Civil Procedure and the Federal Rules of Evidence for the
`
`purposes of discovery, use as evidence at trial, and any other purpose allowed by law. The
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`deposition will be recorded by stenographic means.
`
`/ / /
`
`/ / /
`
`/ / /
`
`/ / /
`
`/ / /
`
`
`
`
`
`1
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`

`

`Pursuant to Federal Rule of Civil Procedure 30(b)(6), Opposer must designate one or more
`
`witnesses to testify regarding the List of Deposition Topics set forth in Schedule A, attached
`
`hereto.
`
`Date: December 11, 2024.
`
`Respectfully Submitted,
`
`DICKINSON WRIGHT PLLC
`
`
`
`/John L. Krieger/
`John L. Krieger, Esq.
`Cindy A. Villanueva, Esq.
`jkrieger@dickinsonwright.com
`cvillanueva@dickinsonwright.com
`trademarkslv@dickinsonwright.com
`3883 Howard Hughes Parkway, Suite 800
`Las Vegas, Nevada 89169
`(702) 550-4400 (phone)
`
`
`
`2
`
`
`
`
`
`

`

`CERTIFICATE OF SERVICE
`
`I do hereby certify that on December 11, 2024, I served a true and correct copy of
`
`APPLICANT’S NOTICE OF RULE 30(b)(6) DEPOSITION OF OPPOSER FLIP GMBH on
`
` /s/ Ashley B. Moretto
`An Employee of Dickinson Wright PLLC
`
`the following counsel of record via email:
`
`YOURTRADEMARKATTORNEY.COM
`Morris E. Turek
`167 Lamp and Lantern Village, #220
`Chesterfield, MO 63017-8208
`Morris@yourtrademarkattorney.com
`
`
`
`
`
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`SCHEDULE A
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`DEFINITIONS
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`“Opposer”, “You”, or “Your” means Flip GmbH and its officers, directors, employees, partners,
`corporate parents, subsidiaries, affiliates, agents, and representatives.
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`“Opposer’s FLIP Mark” means the FLIP mark shown in U.S. Application Serial No. 79/334,224.
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`“Opposer’s GETFLIP Mark” means the GETFLIP Mark shown in U.S. Application Serial No.
`79/361,491.
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`“Opposer’s Marks” means Opposer’s FLIP Mark and Opposer’s GETFLIP Mark.
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`“Opposer’s Goods and Services” means the goods and services identified in Opposer’s
`applications to register Opposer’s Marks.
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`“Channels of Trade” means those persons or entities involved in selling goods to the ultimate
`purchasers of the goods.
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`“Channels of Distribution” means those persons or entities involved in purchasing goods from the
`producer and re-selling them to those person or entities who sell to the ultimate purchasers of the
`goods.
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`“Applicant” means JooJoo Enterprises Limited.
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`“Applicant’s Mark” means the FLIP mark shown in U.S. Application Ser. No. 90/861,211.
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`“Applicant’s Goods and Services” means the goods and services identified in Applicant’s
`application to register Applicant’s Mark. in paragraph 1, paragraph 4 and paragraph 5 of the
`Second Amended Notice of Opposition.
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`TOPICS FOR DEPOSITION
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`1.0 Opposer’s Marks
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`1.1 Opposer’s Selection, Design, and Clearance of the Opposer’s Marks
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`Opposer’s process for the selection, clearance, and adoption of Opposer’s Marks in
`connection with each of Opposer’s Goods and Services, including but not limited to any
`alternatives considered.
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`All trademarks, service marks, brand names and business names revealed in Opposer’s
`selection, design, and clearance of Opposer’s Marks for Opposer’s Goods and Services.
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`Any of Applicant’s Mark or Applicant’s Goods and Services identified in the selection,
`design, and clearance of Opposer’s Marks.
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`Any trademarks of third parties identified in the selection, design, and clearance of
`Opposer’s Marks for Opposer’s Goods and Services.
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`1.2 Opposer’s Goods and Services and Opposer’s Marks
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`The nature and purpose of each of Opposer’s Goods and Services.
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`Opposer’s use in commerce in the United States, if any, of Opposer’s Marks on or in
`connection with any of Opposer’s Goods and Services.
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`All facts supporting Opposer’s belief that Applicant’s Goods and Services are the same,
`similar to, or even overlapping with Opposer’s Goods and Services.
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`All facts supporting Opposer’s belief that Applicant’s Mark is, or will be, used in
`connection with the sale of goods and services that are identical to, or related in some manner to,
`Opposer’s Goods and Services.
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`1.3
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`Channels of Trade of Opposer’s Goods and Services under Opposer’s Marks
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`The Channels of Trade through which Opposer has sold, offered for sale or intends to sell,
`Opposer’s Goods and Services using or under or in connection with Opposer’s Marks in the U.S.
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`All retailers, known to Opposer, where Opposer’s goods and/or services are, or have been
`within the past five years, offered for sale in connection with Opposer’s Marks in the U.S.
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`All distributors, known to Opposer, to whom Opposer’s goods and/or services are, or have
`been within the past five years, sold in connection with Opposer’s Marks in the U.S.
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`All websites where Opposer has sold, offered for sale or intends to sell, Opposer’s Goods
`and Services using or under or in connection with Opposer’s Marks in the U.S.
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`Any other locations where Opposer has sold, offered for sale or intends to sell, the
`Opposer’s Goods and Services using or under or in connection with Opposer’s Marks in the U.S.
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`All facts supporting Opposer’s belief that the Channels of Trade employed by Applicant
`for Applicant’s Goods and Services using or under or in connection with Applicant’s Mark are the
`same, similar to, or overlapping with the Channels of Trade likely or intended to be employed by
`Opposer for Opposer’s Goods and Services using or under or in connection with Opposer’s Marks.
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`1.4
`Marks
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`Channels of Distribution of Opposer’s Goods and Services under Opposer’s
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`The Channels of Distribution through which Opposer has sold, offered for sale or intends
`to sell, Opposer’s Goods and Services using or under or in connection with Opposer’s Marks in
`the U.S.
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`Any distributors or intermediaries (entities who purchase directly from Opposer and re-sell
`to retailers) Opposer has used in the past five years, or intends to use, for Opposer’s Goods and
`Services using or under or in connection with Opposer’s Marks in the U.S.
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`All facts supporting Opposer’s belief that the Channels of Distribution employed by
`Applicant for Applicant’s Goods and Services using or under or in connection with Applicant’s
`Mark are the same, similar to, or even overlapping with the Channels of Distribution likely or
`intended to be employed by Opposer for Opposer’s Goods and Services using or under or in
`connection with Opposer’s Marks.
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`1.5 Marketing, Advertising, Promotion of Opposer’s Goods and Services under
`Opposer’s Marks
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`The nature, duration, frequency, and geographic reach of Opposer’s advertising or intended
`advertising of Opposer’s Goods and Services that Opposer sells, sold, or intends to sell under or
`using or in connection with Opposer’s Marks in the U.S.
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`The methods or intended methods of marketing, advertising, and promotion of Opposer’s
`Goods and Services that Opposer sells, sold, or intends to sell under or using or in connection with
`Opposer’s Marks in the U.S.
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`Opposer’s use, if any, or plans to use print or digital publications to advertise, any of
`Opposer’s Goods and Services using or under or in connection with Opposer’s Marks in the U.S.
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`Each print or digital publication in which Opposer has advertised, in the past five years,
`any goods or services using or under or in connection with Opposer’s Marks and, for each such
`advertisement, the date(s) in which such advertising appeared.
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`Opposer’s use, if any, or plans to use digital platforms such as Instagram, Facebook, and
`websites, to advertise, any of Opposer’s Goods and Services using or under or in connection with
`Opposer’s Marks in the U.S.
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`Each digital platform such as Instagram, Facebook, and websites, Opposer used, in the past
`five years, to advertise, any of Opposer’s Marks and, for each platform, the date(s) in which such
`advertising appeared.
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`1.6
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`Purchasers of Opposer’s Goods and Services using Opposer’s Marks
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`The demographic characteristics (e.g. age, gender, educational level, and/or income level)
`of those persons for which Opposer offers, has offered or intends to offer for sale Opposer’s Goods
`and Services under or using or in connection with Opposer’s Marks.
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`The demographic characteristics (e.g. age, gender, educational level, and/or income level)
`of those persons to whom Opposer targets, has targeted or intends to target for sale of Opposer’s
`Goods and Services under or using or in connection with Opposer’s Marks.
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`All facts supporting Opposer’s belief that the customers for Applicant’s Goods and
`Services using or under or in connection with Applicant’s Mark are the same, or similar to, the
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`likely or intended customers of Opposer’s Goods and Services under or using or in connection
`with Opposer’s Marks.
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`All facts supporting Opposer’s belief that the classes of purchasers to whom Opposer is
`likely to sell, or intends to sell, Opposer’s Goods and Services under or using or in connection with
`the Opposer’s Marks will be the same as, or include, the classes of purchasers to whom Applicant
`sells Applicant’s Goods and Services using or under or in connection with Applicant’s Mark.
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`All information known to Opposer concerning the decision-making process likely to be
`used by consumers when purchasing, or considering purchasing, any of Opposer’s Goods and
`Services under or using or in connection with Opposer’s Marks.
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`1.7 Market Conditions, Circumstances for Opposer’s Goods and Services
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`The price Opposer has offered for sale, sold, or intends to sell Opposer’s Goods and
`Services using or under or in connection with Opposer’s Marks in the U.S.
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`All facts supporting Opposer’s belief that Opposer’s Goods and Services will be marketed
`under conditions likely to be encountered by the same purchasers of Applicant’s Goods and
`Services.
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`All facts supporting Opposer’s belief that Opposer’s Goods and Services will be marketed
`under circumstances that, because of the marks used in connection therewith, would lead to
`consumers’ and potential consumers’ mistaken belief that the goods originate from the same source
`as Applicant’s Goods and Services.
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`1.8 Market for Opposer’s Goods and Services
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`Brand names and/or trademarks of those goods and services Opposer considers to be, or
`likely to be, competitive with Opposer’s Goods and Services.
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`Any brand names and/or trademarks, other than Applicant’s Mark, that (a) use “flip” in the
`text elements of the brand name and/or trademark and (b) identify any goods that are included
`within Opposer’s Goods and Services.
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`Any brand names and/or trademarks used to identify both (a) any goods identified in the
`U.S. Patent and Trademark Office (“PTO”) application of Applicant’s Mark and (b) any of
`Opposer’s Goods and Services.
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`2.0
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`First Awareness by Opposer of Applicant’s Mark
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`All of Opposer’s knowledge of Applicant, Applicant’s Mark, Applicant’s Goods and
`Services, including (a) all circumstances relating to Opposer’s first awareness of Applicant,
`Applicant’s Mark, Applicant’s Goods and Services; and (b) the extent of Opposer’s knowledge of
`Applicant, Applicant’s Mark, Applicant’s Goods and Services.
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`All information Opposer received when Opposer first became aware of Applicant and/or
`Applicant’s goods or services.
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`3.0
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`Similarity of Marks
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`Reasons why Opposer believes that Opposer’s Marks and Applicant’s Mark are similar in
`sight, sound, meaning, and overall commercial impression.
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`All facts supporting Opposer’s belief that Applicant’s Mark duplicates distinctive
`characteristics of the Opposer’s Marks.
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`All facts supporting Opposer’s belief that Applicant’s Mark creates the same overall
`commercial impression as Opposer’s Marks.
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`All facts supporting Opposer’s belief that Applicant’s Marks is confusingly similar to
`Opposer’s Marks.
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`4.0
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`Confusion
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`Any incidents of actual or possible consumer confusion between Applicant and Opposer
`or between Applicant’s Goods and Services or Opposer’s Goods and Services.
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`Any incidents in which a person made any statement, comment, or inquiry concerning the
`similarity of Applicant’s Mark to Opposer’s Marks or vice versa.
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`5.0
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`Trademark Monitoring, Enforcement, and Litigation for Opposer’s Marks.
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`Opposer’s monitoring, including watch services, involving Opposer’s Marks in the past
`five years.
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`Opposer’s enforcement of the Opposer’s Marks in the past five years.
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`Any litigation involving Opposer’s enforcement of Opposer’s Marks in the past five years.
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`6.0 Opposer’s Responses to Applicant’s Interrogatories
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`All of Opposer’s responses to Applicant’s interrogatories.
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`7.0 Opposer’s Responses to, and Production for, Applicant’s Document Requests
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`All docum