Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA131228
`ESTTA Tracking number:
`03/21/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92045000
`Plaintiff
`Bass Pro Trademarks, L.L.C.Bass Pro Trademarks, L.L.C.
`Bass Pro Trademarks, L.L.C. Bass Pro Trademarks, L.L.C.
`Bass Pro Trademarks, L.L.C.
`2500 East Kearney
`Springfield, MO 65898
`UNITED STATES
`Dennis J.M. Donahue III
`Husch & Eppenberger, LLC
`190 Carondelet Plaza Suite 600
`St. Louis, MO 63105
`UNITED STATES
`trademark@husch.com
`Other Motions/Papers
`H. Frederick Rusche
`trademark@husch.com
`/H. Frederick Rusche/
`03/21/2007
`Motion-Rebuttal Designations.PDF ( 4 pages )(935287 bytes )
`Rebuttal Designations pp1-50.pdf ( 50 pages )(2593335 bytes )
`Rebuttal Designations pp51-100.pdf ( 50 pages )(3657115 bytes )
`Rebuttal Designations pp101-150.pdf ( 50 pages )(3003498 bytes )
`Rebuttal Designations pp151-200.pdf ( 50 pages )(3063174 bytes )
`Rebuttal Designations pp201-250.pdf ( 50 pages )(2766608 bytes )
`Rebuttal Designations pp251-293.pdf ( 43 pages )(2227917 bytes )
`
`

`
`IN
`
`s'rAr1¢sf°1wIcE
`
`
`
`In 1;heTmat‘ter of—Tradema:rk Registration No. 2,390,988
`
`I
`.For=th’e
`RELOADING OUTERWEAR FGTWEAR and Design
`
`
`
`Date registered:
`
`October 3, 2000
`
`mucu--——9¢¢unuaHnuddwhbhnm&fi—haon—nuQ-can-an-h
`
`Bass Pm Trademarks,‘-L;L.C.,
`
`’
`
`PETITTGNER,
`
`Z
`
`-
`
`V.
`
`Spcxft§man’s vwatehouse,;Inc.,
`RESPGNJDENT
`~---«--paauuuunyuuuumup---——-aaamuuumuudu-nun.
`
`CANCELLATEON NO; 92e45eao
`
`
`
`Pursuant to 37 C.F.R;. §2.120(j)(3) andthe stiiiuslation cfthe pmiies in thismattew,
`Petitioner, Bass Pro Tradezilarks, LLC,:hereb\y —submits the fellowing designations of
`
`T discovery deposisti-on.—'p0rtions to ‘be ’O§.?§€%1‘€Sd;it1’<¥0
`
`evidence as rebuttai trial testimony
`
`1’etitioner submits herevsrith copies of "the djaposititm transcript
`
`listed herein,
`
`inclzuéingafl ‘exhibits referenced in those page.
`
`1.
`
`Daposiition of Dale Smith Taken. May 10, 26136:
`
`Page 9—,..line 1.91:0 page 10, liae 5 V
`
`Page I9,1ine 1=8[te .page 20, line 6
`
`Page 28, line .18 to page 29, line 24
`
`
`
`

`
`2;:
`
`zbepesitien efeJa’mise:;1 Iélexzsley Taken June 1, 2006:
`
`Page 24, line 17 to page 25, line 3
`
`3.
`
`Depesition of Stanley W. Lippelmaim Taken August 9, 2006:
`
`Page 10, line 5 to page 11, lime 10 T
`
`V
`
`Page 18, line 17 £9 page 2-:0, line 23
`
`Page 21, line 23 to page 24, line 20
`
`4.
`
`Depositienrof Garyl‘. Ford Taken September 15, 2006:
`
`Petitiorxerealso notes
`
`Respondent Sportsmatfs Warehouse, Inc. hasdesignated
`
`the entire depositinns'ef Dale R.
`
`Seett Nielsen, U3:gaard,lJim‘.I+Iaga:1e, Toni
`
`Miller, Jehn i";)a:vid* Hegel, April L. Henderson, Stanley W. Lippelman,
`
`1‘. Ford, and
`
`Michael B. Mazis Without ideneityinzg the particular port;i0n(s) ef’esuc§1.deiti'enseupen
`which R-tespcrndent intenés to relyaas labial testim_o:1y;_ Consequenely; while Feiitiener lies
`attenapted to identifir erelevlansii portions. of; these depositions flu:/art may be relevant as
`
`rebuttal. testimony, Petitioner is unable to determine the sgaecific nature cf the trial
`
`‘tesiimony that Respondent seeks to rely upon‘ in this matter and is, therefore, not able to
`
`may be
`defeermine the full extent of rebuttal rtestimoiry
`Petitioner‘ reserves the right
`to axnenfid and supplement these rebuttal
`
`Therefore,
`dep.osi51:i:e2a
`
`designations and to request an Qppertunity to present additional live rebuttal testfcmony at
`
`such time as Respezaldem identifies the actual usial testingony upon wluleh it seeks to rely
`
`iza this matter.
`
`2
`
`I
`
`,1’:
`
`M
`
`M
`
`W”
`
`

`
`Dated: March 21, 2607
`
`‘Respeétfiiiiiy stibmitted,
`
`HUSCH & EPPENBERGER, LLC
`
`
`
`HI, -Esq.
`
`
`magmas
`D1x1;roT-E."€§az:13zp§<§1i;AII,
`Frederick. Raschg, Esq.
`Husch & Epgehgberger, LLC
`.190 ;Cam::de1je~t_PI"aza,_ Suite'= 600
`‘ St'L9ugis, MO 63105
`Fhgnez 3iv4§48jG~1642‘
`A
`Fax: 31»4-299-5342
`E—«mai1:t1‘ademafl<':@11us~ch.c9m V
`
`
`
`

`
`it is hereby’ certified
`
`ox ‘SERVICE
`a true and correct cepy of the foregoing document was
`
`served by firrst class mail, postage prepaid, an [Christopher R. Smith, Lmciquist &
`
`Venmzm, PLLP, 80 vS’0u4:h'8““St1'eet,v4200~[IDS=Cenier, Mirrmeapolis,
`
`55'«$0.2~2205, the
`
`attorney for Respondent, on this 21“ day ofMarch‘, 2007.
`
`
`
`,,.«....~.,,..../u.......u..»...~.....,_.mm..,.....,....«....v....m:..:4.........a;4.».....¢...........;mmam’x_,..... mm’AN
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`

`
`May 10, 2006
`
`DALE R. SMITH
`
`BASS PRO TRADEMARKS, LLC. V. SPORTSMAN'S WAREHOUSE, INC.
`
`~.'rs>'awkzwemuz
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
` BASS PRO TRADEMARKS,
`
`I
`L.L.C.,
`
`Cancellation No. 92045000
`
` Petitioner,
`
`
`
`..~wW»2I~w.a~.*<>
`
` Deposition of:
`
`
`
`DALE R . SMITH
`
`
` SPORTSMAN'S WAREHOUSE,
`
`INCO I
`
`
`
` May 10, 2006
`10:00 a.m.
`
`Respondent.
`
`
`
`7035 High Tech Drive
`
`84047
`
`Midvale, UT
`
`
`Sharon Morgan, CSR, RPR, CRR
`
`
`
`
`Notary Public in and for the State of Utah
`
`GARCIA & LOVE
`801.538.2333
`
`
`
`Sportsman's Warehouse
`
`

`
`May 10, 2006
`
`BASS PRO TRADEMARKS, LLC. V. SPORTSMAN'S WAREHOUSE, INC.
`
`DALE R. SMITH
`
`...»m*azw>:>2at>-
`
`
`
`zmmammwwsvv«x*.»*.s%*4<«u«</9:>\*nvxemm‘.'\‘'>
`
`CD\10‘\U‘ln-l>U)l\)|—‘
`
`the attorneys, whoever, and we'll figure that out,
`
`responded.
`
`A.
`
`Q.
`
`Okay.
`
`So the response part is under Answer, which
`
`.starts at like the middle of this page.
`
`A.
`
`Q.
`
`Okay.
`
`And if I'm reading this correctly, you show
`
`up under B.
`
`Yep. Yes.
`
`A.
`
`Q.
`
`So if we go up to the top, it says, "Identify mxmzg:m-,..::'
`
`the person or persons who are most knowledgeable about
`
`(B)
`
`the selection and design of respondent's mark."
`
`A.
`
`Q.
`
`Okay.
`
`Respondent is Sportsman's Warehouse, and the
`
`mark is the Sportsman's Warehouse logo with the
`
`mountains and there's a registration.
`
`In fact, we'll
`
`make that an exhibit later on.
`
`*:1.‘.Ra€'s’«*3€‘.k‘§’.\:'~fi.k‘u*‘vl:%:éN<)~3\<>{v=f).«\‘.
`
`;m:‘.w$:<‘!&Y’d23»éA‘w-'4:M
`
`Okay.
`A.
`So what I would like to know is what you know §
`Q.
`about the selection and design of that mark.
`E
`A.
`At the time after Stu bought us, he asked my
`%
`
`wife, who happened to do all the advertising at that
`
`time,
`
`to come up with a logo, basically, with our
`
`printer.
`
`His name was Dave Egan.
`
`He passed away
`
`about five years ago, but he was the printer at the
`
`«.-- .
`
`~.:>~:;:x.p«.<-7.. ''=” ;x, -='
`
`GARCIA & LOVE
`801.538.2333
`
`
`
`
`
`”‘.°»w-<:<§'ae~ra<‘ru~‘:m~::>>w.»¢wm%x»»>>wm:w.:e.m».::»x»x.v~:m..»s<»._..~..5"
`
`
`
`

`
`hday 10,2006
`
`BASS PRO TRADEMARKS, LLC. V. SPORTSMAN'S WAREHOUSE, INC.
`
`DALE R. SMITH
`
`Page 10
`
`kO(I)\1O\U‘|nJ>-(.L)l\)|—‘
`
`time.
`
`They designed it, still using the words and
`
`then the departments underneath, hunting,
`
`fishing
`
`camping, and the mountains in the background.
`
`They
`
`presented it to Stu, he liked it, and it became the
`
`mark.
`
`(Exhibit No.
`
`2 marked.)
`
`Q.
`
`(By Mr. Upchurch)
`
`I've had the reporter mark
`
`U.S. Trademark Registration No. 2,390,988.
`
`A.
`
`Q.
`
`Okay.
`
`Does that show the mark that we've been
`
`talking about?
`
`A.
`
`Q.
`
`Yes.
`
`So that's the logo? What part did your wife
`
`and the printer come up with?
`
`A. Well, we already had the words "Sportsman's
`
`Warehouse." They came up with the rest of it.
`
`Q.
`
`A.
`
`The rest of it would be --
`
`The style of the font and the mountains
`
`behind, and then our categories underneath.
`
`Q.
`
`You've said several times the categories
`
`underneath. Are those the categories of products that
`
`were sold in the store?
`
`Yes.
`
`And is that still true today --
`
`GARCIA & LOVE
`801.538.2333
`
`
`
`

`
`May 10, 2006
`
`BASS PRO TRADEMARKS, LLC. v. SPORTSMAN'S WAREHOUSE, INC.
`
`Loveland.
`
`DALE R. SMITH
`
`Page19 g
`I
`
`CI)QO\U‘|»J>U)l\)l—‘
`
`Q.
`
`What did they say? What did the fellow in
`
`Memphis say?
`
`A.
`
`He just said at the time that it was causing
`
`a little confusion,
`
`that they received a gift card.
`
`I
`
`said, "Don't let the customers go away.
`
`Give them a
`
`free hat, but we can't accept the gift card."
`
`And I
`
`had a similar conversation with Brian Mackey in
`
`Loveland.
`
`Q.
`
`Have you had any other conversations with
`
`store managers concerning Bass Pro and customers being
`
`confused?
`
`A.
`
`Q.
`
`No.
`
`If you look on page 5, at the top —— and
`
`you're welcome to look on the previous page to see
`
`what the interrogatory was, if you want to.
`
`A.
`
`Q.
`
`Okay.
`
`What I'm interested in is the sentence that
`
`starts, "Although Sportsman's Warehouse formally
`
`changed the name on the store's sign to Sportsman's
`
`Warehouse during 1995,
`
`respondent believes it had been
`
`using the mark Sportsman's Warehouse prior to 1995."
`
`Do you see that statement?
`
`A.
`
`Q.
`
`Uh—huh (affirmative).
`
`Do you know of any documents that show the
`
`,
`
`..
`
`GARCIA & LOVE
`801.538.2333
`
`
`
`

`
`May 10, 2006
`
`BASS PRO TRADEMARKS, LLC. V. SPORTSMAN'S WAREHOUSE, INC.
`
`DALE R. SMITH
`
`Page 20
`
`use of the mark Sportsman's Warehouse by your company
`
`prior to 1995?
`
`A.
`
`Q.
`
`Documents, no.
`
`Do you know if Sportsman's Warehouse has
`
`looked for such documents?
`
`A.
`
`Q.
`
`Yes, we have looked.
`
`Do you know what formed the basis of the
`
`belief referred to in that sentence that Sportsman's
`
`Warehouse had been using that mark prior to 1995?
`
`A.
`
`Probably just that it was talked about.
`
`I
`
`mean, we know it was spring of '95 sometime, but
`
`trying to narrow down a date —— but it was talked
`
`about prior to '95, yes, on the name change.
`
`Q.
`
`Okay. And who would have talked about
`
`changing the name prior to 1995?
`
`A. Well,
`
`I remember talking with customers about
`
`it on the sales floor.
`
`Q.
`
`A.
`
`Okay. What did the customers say?
`
`They would come in and say, how come you
`
`don't carry baseball? That's a sport.
`
`How come you
`
`don't carry golf? That's a sport.
`
`You ought to be
`
`called Sportsman's Warehouse.
`
`I was very happy when
`
`we changed the name.
`Q.
`Because you didn't have to have that
`
`conversation again?
`
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`
`GARCIA & LOVE
`801.538.2333
`
`
`
`

`
`May 10, 2006
`
`BASS PRO TRADEMARKS, LLC. V. SPORTSMAN'S WAREHOUSE, INC.
`
`DALE R. SMITH
`
`Page 28
`
`Q
`%
`é
`3
`g
`
`;
`
`§%
`
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`
`Sportsman's Warehouse.
`
`Q.
`
`(By Mr. Upchurch) Are you aware of this dba
`
`Sportsman's Warehouse that your counsel just
`
`mentioned?
`
`A.
`
`Sports Warehouse dba Sportsman's Warehouse,
`
`yes.
`
`And is that the previous company that you
`Q.
`talked about,
`the predecessor company, Sports
`Warehouse?
`A.
`I'm not sure why Stu set it up that way.
`
`Q.
`
`But it's all one company?
`
`A.
`It's all one company, yes.
`I think that's
`how it was listed when we were incorporated.
`
`Q.
`
`Do you own stock in Sportsman's Warehouse?
`
`Yes.
`
`Is it publicly traded?
`
`A Q
`
`A.
`
`No.
`
`Q
`
`On pages 9 and 10 of Exhibit I,
`
`there are a
`
`list of stores. Are these all stores that are doing
`
`business under the mark or under the name Sportsman's
`
`Warehouse?
`
`A.
`
`Yes.
`
`MR. ALLGEYER: This is missing a store,
`
`right?
`
`94,4¢2.xas2<»e».’;1w:::e~.>:.>\m*«-~.°.<z<°.':s29:.2w->s.xMs
`
`
`THE WITNESS: Well, it's been relocated to -- *Mmxw.vi
`
`GARCIA & LOVE
`801.538.2333
`
`
`
`

`
`May 10, 2006
`
`DALE R. SMITH
`
`BASS PRO TRADEMARKS, LLC. V. SPORTSMAN'S WAREHOUSE, INC.
`
`
`
`
`
`
`
`l—‘ I\)
`
`I—-‘ DO
`
`Q.
`
`|—‘ :5
`
`l\) l\)
`
`we added our second store under Stu's tenure.
`
`
`
`I\) U.)
`
`l\) uh
`
`Q.
`
`A.
`
`And that was the one in Provo?
`
`Yes.
`
`l\) U1
`
`Q.
`Do you see the third column on pages 9 and 10
`
` -=:'«: -' "Io~»,~'~AQ'iéFié$ ~:-»»m*"=-
`
`.¢,».«;z..~.v.4~.»~.~>me§~>.r<=«.<«<,&.-:
`1
`H
`I see.
`MR. ALLGEYER: Okay.
`2
`E
`(By Mr. Upchurch)
`So the date for store
`Q.
`3
`E
`No. 12 represents when that particular store moved to
`4
`
`its current location?
`5
`E
`A.
`Yes. But it was prior to that that Pacific
`6
`%
`Flyway relocated, because we made this building all
`7
`§
`store.
`8
`E
`So the date that the first store in Midvale
`Q.
`9
`§
`opened would be much earlier than November of 2002?
`
`
`10
`A.
`The first store opened on Memorial weekend in §
`11
`9
`1996.
`
` And was the second store the one in Provo in
`1998?
`
`
`A.
`The second store being —- we relocated the
`15
`first store three times.
`So the first store in 1986
`%
`
`
`E
`16
`was the other half of Pacific Flyway wholesale which
`
`
`g
`17
`opened up to retail.
`Then it moved to a building on
`
`
`18
`its own just down from Pacific Flyway, and then it
`E
`
`
`19
`moved to this building in 1991.
`i
`
`
`20
`Q.
`And then in 1998, another ——
`§
`Stu bought us in 1996 and in 1998 g
`21
`A.
`1998, yes.
`
`
`
`
`
`
`
`
`
`
`
`4.."-'-<-'“«”“"-.:.=¥<ww:°<«<vm:e~w»»>-»:.
`
`GARCIA & LOVE
`801.538.2333
`
`
`
`

`
`TRADEMARK OFFICE
`IN THE UNITED STATES PATENT
`' BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
` In the Matter of Trademark Registration No. 2,390,988
`
`For the Mark SPOR'l‘SMAN’S WAREHOUSE HUNTING FISHING CAMPING RELOADING
`OUTERWEAR FOOTWEAR‘and DESIGN
`
`.
`
`Date registered:
`
`October 3, 2000
`
`
`
`Bass Pro Trademarks, L.L.C.,
`
`I
`
`Petitioner,
`
`v.
`
`Cancellation No. 92045000
`
`H
`EXHIBIT
`
`L?
`
`g=
`
`0:
`Q’
`
`-Sportsrnan’s“Warehouse, I‘nc-,
`
`Respondent.
`
`
`
`
`~ Am Nix
`
`
`
` ‘ SPORTSMAN’S WAREHOUSE, IN C.’S ANSWERS TO PETITlONER’S FIRST SET OF
`’
`INTERROGATORIES AND REQUESTS FOR PRODUCTION. OF DOCUMENTS
`
`GENERAL RESPONSES
`
`1.
`
`The General Responses and the General and Specific Objections apply to all
`
`answers of Respondent Spor’tsman’s Warehouse, Inc. (“Sportsrnan’s Warehouse”) to Petitioner’s
`
`interrogatories.
`
`In connection with these answers, Sportsmarfs Warehouse response is made
`
`0
`
`without waiving or intending to waive, and expressly reserving: (a) the right to object on the
`
`grounds of competency, privilege, relevancy, materiality-or any other proper ground to the use of
`
`A
`
`the answers for any purpose,_in whole or in part, in any subsequent step or proceeding in this
`
`action or any other action; (b) the right to object on any and. all grounds at any time to other
`
`interrogatories or other discovery procedures involving orwrelating to the subject matter of the
`
`Doc# 2109464“
`
`'
`
`CONFIDENTIAL
`
`
`
`

`
`
`
`interrogatories; and (c) the right at any time to revise, correct add to or clarify any of the answers
`
`propounded herein.
`
`2.
`
`The answers. herein reflect
`
`the present state of Spo11sman’s Warehouse’s
`
`knowledge and information following investigation regarding Petiti.oner’s interrogatories. The
`
`investigation is continuing. Except as otherwise stated below, an objection to a interrogatory
`
`indicating that Sportsman’s Warehouseswill produce‘ documents relating to the interrogatory does .
`
`not necessarily mean that such documents exist. Sportsman’s Warehouse reserves the right to
`
`supplement these answers, and to rely upon, at any time, includingitrial, subsequently discovered
`
`information or information omitted from these responses as aresult -of" mistake, error, oversight,
`
`or.inad.vertence.
`
`GENERAL OB,[ECTI.ONS
`
`1.
`
`Sportsman’s Warehouse objects to each interrogatory to the extent that it seeks
`
`
`
`information that is subject to the attorney—client privilege, work product privilege or other
`
`privilege on the ground that privileged matter is exempt from discovery.
`
`2.
`
`Sportsman-’s Warehouse objects to any and all instructions or definitions on the
`
`grounds that they are overly broad and beyond the requirements imposed by the applicable rules
`
`of procedure. I
`
`3.
`
`Sponsmanls Warehouse does not waive any of its general or particular objections
`
`in the event
`
`it furnishes inforrnation or documents coming within the scope of any such
`
`objections.
`
`4.
`
`Any responsive documents to be produced will be produced at a time and place
`
`mutually agreeable to counsel.
`
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`ANSWERS TO INTERROGATORIES
`
`INTERROGATORY NO. 1: Identify
`knowled'geabl’e about:
`
`the
`
`person
`
`or
`
`persons who
`
`are most
`
`a.
`b.
`c.
`
`d.
`
`e.
`
`f.
`
`g.
`
`the selection of Respondent’s Abando'nediMark;
`the selection and design of Respondent's Mark;
`the decision to apply for_ registration of Respondent’s Mark in the United States
`Patent and Trademark Office;
`'
`V
`'
`an.y search -reports, opinions and/or investigations prepared by or for Respondent
`which
`concern
`the
`combination
`of
`the
`terms SPORTSMAN’S
`and
`WAREHOUSE, or variants and synonyms thereof in whole or in part;
`the preparation and filing of all US. applications by or for Respondent which
`include the phrase SPORTSMAN’S WAREHOUSE;
`the use of trademarks and service marks in Respondent’s advertising, marketing
`and promotional materials;
`‘
`each of theservices for which'Respondent_’s‘Mark hasbeen or are now being
`used, and the respective channels of trade and classes of purchasers for each of
`-these s—e-rvie-es.
`
`ANSWER: Sportsman’s Warehouse objects to Interrogatory No. I and the grounds that
`
`it is overly broad and further objects to the extent that itseeks information protected by the
`
`
`
`fattomey-client privilege or the attorney work product doctrine. Subject to and without waiving
`
`these objections or the foregoing General Objections, Sportsman’s Warehouse responds as
`
`followsi
`
`a.
`
`b.
`c.
`
`d.
`
`e.
`
`_
`
`f.
`g.
`
`Bill Hayes, Scott Nielson, both fomier owners of Sportsman’s Warehouse; Stu
`Utgaard, Chairman and Chief Executive Officer, Sportsman’s Warehouse.
`Dale Smith, President, Sportsman’s Warehouse.
`Stu Utgaard, Chairman and Chief Executive Officer, Sportsman’s Warehouse,
`with assistance from counsel for Sportsman’s Warehouse.
`C
`Stu Utgaard, Chairman and Chief Executive Officer, Sportsman’s Warehouse,
`with assistance from counsel for Sportsman’s Warehouse.
`Stu Utgaard, Chairman and Chief Executive Officer, Sportsman’s Warehouse,
`with assistance from counsel for Sportsman’s Warehouse.
`Stu Utgaard, Chairman and Chief Executive Officer, Sportsman’s Warehouse.
`Stu Utgaard, Chairman and Chief Executive Officer, Sportsman’s Warehouse.
`
`INTERROGATORY NO. 2: Describe all relevant facts and circumstances regarding
`Respondent’s first awareness of Petitioner’s Marks.
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`ANSWER: Respondent objects to Interrogatory No. 2 on the grounds -that it vague and
`overly broad.‘ Subject to and without waiving‘ these objections. and the foregoing General
`‘Objections, Sportsrrian’s Warehouse responds as
`follows:
`
`During approximately 1997,
`
`Sportsman’s Warehouse learned that Petitioner had opened a store near Atlanta, Georgia. This
`
`was the first time that Sportsman’s Warehouse became aware that Petitioner was using the name _
`
`SPORTSMAN’S,'WAREHOUSE.
`
`« Vto
`
`INTERROGATORY NO. 3: Describe all relevant facts and circumstances for each
`instance in which an individual was confused‘ or mistaken, or otherwise uncertain, about a
`possible. connection or affiliation between Petitioner’s and Respondent’s respective marks or
`services.
`’
`
`-'2
`3~;l
`
`
`
`ANSWER: Sports'man’s Warehouse objects to Interrogatory No. 3 to the extent that it is
`overly broad, unduly burdensome and seeks information that is not
`Spor1sman’s Warehouse’s
`possession. Subject to and without waivi.ng this objection or the foregoing General Objections,
`Sports.man’s Warehouse respondsas follows: After Petitioner opened its store in St. Louis,
`
`Missouri,
`
`in 2000, customers attempted to redeem gift cards from Petitioner’s store at
`
`Sportsman’s Warehouse store locations, apparently because information on gift cards stated that
`
`~
`
`the cards were redeemable at“Sportsman’s Warehouse” stores. This same type of confusion
`
`occurred in 2005 after Petitioner issued similar gift .cards from a store near Denver, Colorado.
`
`INTERROGATORY NO. 4: Describe all relevant facts and circumstances regarding
`Respondent’s first use of Respondent’s Abandoned Mark in connection with each of the. services
`identified in the abandoned application for Responden.t’s Abandoned Mark.
`
`ANSWER: Respondent objects to lnterrogatory No. 4 on the grounds that it is vague
`
`and overly broad. Subject to and without waiving these objections and the foregoing General
`
`Objections, Sportsman’s Warehouse responds as follows: From 1986 through approximately
`
`1995, Sportsman’s Warehouse used the name SPORTS WAREHOUSE as the name of its retail
`
`sporting goods store in Midvale, Utah. During this time, customers often referred to the
`
`Docil 2 l09464\l
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`operation" a-s..“Sport.sman’s Warehouse,” whichreventually led Respondent to changeits name to
`
`. SPORTSMAN’S WAREHOUSE. Sportsman’s Warehouse is investigating the date on which it
`began using the mark SPOR'i‘SMAN’S WAREHOUSE in its retail
`stores.
`Although
`Sportsman”s Warehouse formally changed the name on the store’s sign to SPORTSMAN’S
`
`WAREHOUSE during .1995-, Respondent believes it had’ been using the mark SPORTSMAN’-S.
`WAREHOUSE prior to 1995. Documents concerning the adoption of the mark SPORTSMAN’S
`WAREHOUSE will be‘ produced to the extent they are available.
`
`INTERROGATORY NO. 5: Describe all relevant facts an.d circumstances regarding
`Respondent’s first use of Respondent’-s Mark in connection with each. of the services identified in
`Reg. No. 2,390,988.
`r
`
`‘ANSWER: Respondent ‘objects to Interrogatory No. 5 on the grounds that itis vague
`
`and overly broad- Subject to and without waiving these objections and the foregoing General
`
`‘Objections, Spoi1sman’s Warehouse responds as follows:
`
`During 1995, after Sportsman’s
`
`Warehouse had adopted the mark SPORTSMAN’S WAREHOUSE", it designed and began using
`
`the Respondent’s Mark in connection with the sale and advertising of the.services identified in
`
`Registration No. 2,390,988.
`
`INTERROGATORY NO. 6: For each. year, beginning with the -date Respondent’s
`_Mark was first used in the United States, provide all relevant facts and circumstances regarding
`the Respondent’s expenditures made in connection with Respondent’s Mark for advertising,
`promoting and marketing each of the services identified in Reg. No. 2,390,988.
`
`ANSWER: Respondent objects to Interrogatory No. 6 on the grounds that it is overly
`
`broad and unduly burdensome.
`
`Subject to and without waiving these objections and the
`
`foregoing General Objections, Sportsmarfs Warehouse responds as
`
`follows:
`
`All of
`
`Respondents’ advertising is made in connection with ARespondent’s Mark-
`
`Sportsman’s
`
`Warehouse is unable to compile information concerning every advertising expenditure because it
`
`would include thousands of advertisements and millions ofdollars. Spoi’tsman’s Warehouse has
`
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`
`available and has compiled some general information, beginning with 1997. The available data
` is summarized below.
`
`'
`
`,
`
`'
`
`.
`
`.
`
`0
`
`‘
`
`V
`
`9
`
`S):_)ortsman’s Warehouse
`Advertising Exgenditu-res
`Year Ended October 31
`
`1997
`1998
`1 999
`2000
`2001
`_ 2002
`2003
`2004
`2005
`Total"
`
`1997
`1993
`1999
`2000
`2001
`3002
`9-093
`33:
`Tom.‘
`
`$
`
`$
`
`56,000
`107,000
`205,000
`264,000
`449,000
`563,000
`732,000 A
`1,792,000
`
`3' 070 000
`7,288,000
`
`~
`
`8,000 Est’d
`21,777
`31,394
`31,723
`113,675
`372,466
`555,596
`773,150
`
`1 I54 720
`$3,062,501
`
`5
`
`,—
`
`Logo Merchandise
`7/I/03-——.— 1/30/06
`_
`(Only Data Currently Available)
`
`
`
`
`
`
`
`
`
`
`
`Q1112 —§§.§A.1.2.
`
`——
`
`Q .
`‘
`
`.
`
`.
`‘
`.~
`
`4
`
`‘
`
`_
`.‘»
`
`_
`
`.
`1
`
`if
`‘
`
`O3
`
`0
`
`
`
`
`
`
`
`——
`
`A>9i_QQQ*
`« Est’d
`2 000 000.
`'
`
`
`
`
`
`
`
`
`
`Docfi 21094640
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`=.-~.
`":‘§'§,:.?’
`
`INTERROGATORY NO. 7’: For each ‘year, beginning with‘ the. date Respon.dent’s
`Mark was first usedrin the United States, provide all relevant facts and circumstances regarding
`Respondent’s total amount of sales made‘ in connection with Respo_ndent"s Mark for each of the
`specific'services identified in Reg. No. 2,390,988.
`
`ANSWER: Respondent objects to Interrogatory No. 7 on" the grounds that it vague and
`
`overly broad.
`
`Subject ‘to and without waiving these objections and the foregoing General
`
`Objections, Sportsman’s Warehouse responds as follows: Since 1995,-Sportsman’s Warehouse
`
`"has completed millions of transactions under.Riespondent’s Mark and the -mark'SPORTSMAN’S
`
`WAREHOUSE. Because of the enormous volume of transactions, Sportsmarfs. Warehouse will
`
`provide a summary of its total sales by-calendariyear. The available data is summarized below:
`
`All sales since late 1994 or early 1995 have been made under the Sportsman’s Warehouse
`vname. These sales exceed $1.4 billion-
`
`Historical Sgortsman’-s Warehouse Sales
`Year Ending October 31
`gThousands- of Dollars}
`
`
`‘
`‘
`
`$8,000,000 Est’d
`14,000,000.
`’
`
`'
`
`'
`
`'
`0
`
`0
`
`20,519,000
`25,281,000
`' 39,726,000
`52,245,000
`77,484,000
`1 19,257,000
`I 1 8,129,000
`292,629,000
`415,592,000
`
`
`
`
`
`
`
`
`
`
`
`.
`
`1997
`
` 1995
`1996
`
`
`
`
`
`
`
`
`
`
`A
`
`-
`
`-
`
`1998
`1999
`2000
`2001
`5 2002
`2003-
`* 2004
`_
`2005
`2006 (3 Mos.)
`Total
`
`‘
`
`‘
`
`
`
`
` $ 1,406,579,000
`
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`INTERROGATORY NO. 83 For each year, begi.nning with the date Responden't’s
`Mark was first used in the United States, identify any and all businesses, retailers, or distributors
`to whom. Respondent has sold goods at wholesale under Respondent’s Mark.
`ANSWER:' llespondent objects to Interrogatory No. -8 on the grounds that it is vague
`
`and overly broad. Subject toand without waivi_ng these objections and‘ the foregoing General
`
`Objections, Sportsman’s Warehouse responds that it sells goods only at retail and does not sell
`
`goods at a wholesale level.
`
`INTERROGATORY NO. 9: Describe all relevant facts and circumstances regarding
`Respondent’s relationship with any wholesale store _or any other wholesale business, including
`' but not limited to Pacific Flyway Wholesale, beginning with initiation of the relationship to the
`current state of the relationship and the developm-ent of the relationship therebetween-
`
`ANSWER: Sportsman’s Warehouse objects to Interrogatory No. 9 to the extent that it is
`overly broad, unduly lburdensome, and not reasonably calculated to lead to the discovery of
`
`admissible evidence. Subject to and without waiving this objection or the foregoing General
`
`Objections, Sportsman’s Warehouse responds as follows: The parent company of Sportsman’s
`VWarehouse, Sportsman’s Warehouse Holdings, Inc., also owns Pacific Flyway. Pacific Flyway
`sells goods at wholesale to retailers. Pacific Flyway also acts as a distributor for goods sold at
`
`the retail stores of Sportsman’s Warehouse.
`
`INTERROGATORY NO. 10: Explain the differences. between wholesale stores or
`other wholesale business, such as Pacific Flyway Wholesale, and Respondent’s retail stores,
`‘including any differences between the respective channels of trade and classes of purchasers for
`each type of"business.
`
`ANSWER: Sportsman’s Warehouse objects to Interrogatory No. 10 to the extent that it
`is vague, overly broad, unduly burdensome, and not reasonably calculated to lead to the
`
`discovery of admissible evidence. Subject to and without waiving this objection or the foregoing
`
`General Objections, Sportsman’s Warehouse responds as follows: See Respondent’s response to
`
`Interrogatory No. 9.
`
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`""3"
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`_
`
`11: For each one of Respondent’s storesthat provides any
`INTERROGATORY
`‘
`. service in connection with Respondent’s Mark, identify the location of the store, thedate that the
`store opened-, and the scope of services cunently provided by the store as penaining to each one
`of the services identified in Reg. No. 2,390,988, --
`
`ANSWER: ‘Respondent. objects to Inte1rogatoryvNo. It on the grounds» that it is vague '
`‘and overly broad. Subject to and without waiving‘ these objections and ‘the foregoing Genera}
`Objections, Spoi1sman’s Warehouse providesthe foliowing list of stores and the date they
`
`opened.
`
`_
`
`j
`
`
`l
`i—
`3. Men‘diani.11>
`s
`t
`II _
`.
`—
`I
`s.
`L
`c
`4-
`Idaho FaHs,ID i
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`ta—1
`
`3
`
`. '
`
`a
`
`2. Midvale, UT
`
`11/A8/02
`
`Successor Store to original
`
`
`
`, —
`T d
`7/9/03 —
`8 Arizona
`.
`s
`
`i_
`
`
`
`, —
`
`
`
`2/9/04
`
`
`. .
`
`
`
`
`
`
`
`. —
`
`v
`
`
`
`—
`
`
`
`«—
`
`
`
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`43. Colorado s rings, co
`
`
`
`
`
`
`
`
`
`»:———-
` t—'1—
`
`.
`
`
`
`
`
`
`
`
`_
`
`"S‘toi‘és*Uniiéi' 'Co'n§tr'uét'ion
`
`Scheduled
`
`
`
`Location
`
`
`
`
`
`
`
`—-————t
`
`54. Lafayette, IN
`
`
`
`V
`
`25 Indiana
`
`
`
`Stores,Schedu~led to Start Construction
`
`
`
`10/26/06
`
`
`
`
`
`55.. Rockli-n, CA_
`5‘6.Bozeman, MT
`57. Mcdford, OR
`
`58. Vancouver, WA
`
`
`
`26 California
`9/21/06
`9/28/06 —
`10/26/06
`
`-
`
`
`
`INTERROGATORY NO. 12: Identify all persons or entities to whom Respondent has
`licensed or granted authority to use Respondent’s Mark in connection with any goods or
`services.
`
`
`
`"-e....-‘’‘
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`. -ANSWER: Respondent. objects to Interrogatory_No. 12 on the grounds that it is vague
`
`andseeks infonnation that is not reasonably calculated to lead to the discovery of admissible
`
`evidence.
`
`Subject, to and‘ without waiving these objections andthe foregoing‘ General
`
`Objections, Sportsrnan’s Warehouse responds that it has granted a license to use the mark .
`
`.
`
`SPORTSMAN’S NEWS and DESIGN, us. Serial No.78/566,721, in connection with its news
`
`publication SPORTSMAN’S NEWS. Copies of the publication are available to-customers at
`
`:Sportsinan’s Warehouse store locations and by subscription. A copy of the License Agreement
`
`"will be produced.
`
`2? .
`AINTERROGAITORIY NO. 13:_ Describe all relevant facts and circumstances regarding I
`Re$29m!¢ntTs I_1§¢ __9t__ the .phrase. §..P.QRT§M.AN’S .WA.RI..3.H.QIJS.E.. in.
`.t_1.1s°.».IJ_I_1ited ..S.tat.<:§....i_n..
`combination with the registered trademark symbol, ®, but not in combination with the other
`words that comprise Respondent’s Mark (i.e., HUNTING FISHING CAMPING RELOADING
`OUTERWEAR FOOTWEAR) or not in combination with the mountain range design element of
`-the Respondent’s Mark. If your answer i.s other than an‘ unqualified negative, explain all relevant
`facts and circumstance’ .s regarding Responder_rt’s use in its advertisements, promo't.ions,ifl‘yers
`and web site page of SPORTSMAN’S WAREHOUSE AMERICA’S PREMIER OUTFITTER in
`combination with the mountain range design and the registered trademark symbol but excluding
`the additional words that comprise Respondent’s Mark.
`
`ANSVVER: Respondent objects to. Interrogatory No. 13 on the grounds that it is vague,
`
`overly broad, and seeks information that it irrelevant and not reasonably calculated to lead to the
`
`discovery of admissible evidence. Subject to and without waiving these objections and the
`
`_. ._
`
`-foregoing General Objections, Sportsman’s Warehouse responds as follows:
`
`Sportsman’s
`
`Warehouse is not aware of any such use- To extent there has been any use of the ® symbol not
`
`in connection with the Respondent’s design, such use of the ® symbol has been inadvertent and
`
`de minimis in nature.
`
`X
`
`INTERROGATORY NO. 14: State all facts and identify all documents upon which
`Respondent relies in claiming that (a) “Respondent has superior rights over Petitioner in the
`mark SPORTSMAN’S WAREHOUSE” and (b) “Petitioner uses the phrase SPORTSMAN’S
`WAREHOUSE only in conjunction with the mark BASS PRO SHOPS” and (C) “Petitioner has
`abandoned any rights...in its registered BASS PRO SHOPS SPORTSMAN’S WAREHOUSE
`and DESIGN mark.”
`
`
`
`‘MN,,..
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`Q 1
`:
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`.
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`A:
`
`’ "
`
`\
`Q
`
`Q
`
`.
`
`.
`3‘:
`
`.
`
`A_NSWER:‘ Respondent objects to Intermgatory No-.'l4 on the grounds that it is vague,
`
`A
`
`overly broad, and seeks information protected by attomey-client privilege and .the work product
`doctrine. Subject,-to and without waiving these objections and-the foregoing General Objections,
`
`Spo‘rtsman’s Warehouse responds as follows:
`i
`(a) The public associates the mark.SPORTSMAN"S WAREHOUSE with Respondent’s
`business. Respondent operates more than _forty stores across the nation under’ the mark
`SPORTSMAN’S WAREHOUSE, and has been using the mark since at least 1995, and perhaps
`earlier.‘ Respondent has conducted millions of transactions and generated hundreds of millions
`of dollars in sales under the mark SPORTSMAN’S WAREHOUSE. Because of the widespread-
`"success and coiisiirner association of the mark "SPORTSMAIWS "WAREHOUSE" with
`Respondent’s retail sales, Respondent has acquired secondary meaning in the mark. Petitioner,
`
`' by contrast, currently has only one location. that uses the phrase “Sportsman"s Warehouse” in
`
`connection with a retail store. Petitioner Conducts all of its business under the BIASS PRO
`
`SHOPS mark, and to Respondent’s . knowledge, does not use the phrase “Sports1nan’s
`
`Warehouse” apart from the BASS PRO SHOPS mark. Respondent has disclaimed exclusive
`rights to the phrase SPORTSMAN’S WAREHOU