Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA428886
`ESTTA Tracking number:
`09/06/2011
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92047741
`Plaintiff
`Bayer Consumer Care AG
`RAYMOND I GERALDSON JR
`PATTISHALL MCAULIFFE NEWBURY
`HILLIARD & GERALDSON LLP, 311 SOUTH WACKER DRIVE - SUITE 5000
`CHICAGO, IL 60606
`UNITED STATES
`rig@pattishall.com,pb@pattishall.com
`Plaintiff's Notice of Taking Testimony
`Phillip Barengolts
`pb@pattishall.com, lrb@pattishall.com
`/Phillip Barengolts/
`09/06/2011
`Petitioner's Notice of Filing of Testimony with Transcript & Exhibits.PDF ( 35
`pages )(2231105 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`BAYER CONSUMER CARE AG,
`
`V.
`
`BELMORA LLC,
`
`Petitioner,
`
`Registrant.
`
`\./\/§/\./\J\;§/\)\J
`
`Cancellation No. 92047741
`
`PETITIONER'S NOTICE OF FILING TESTIMONY
`
`Petitioner, Bayer Consumer Care AG, pursuant to Trademark Rule of Practice 2.125 (c),
`
`hereby submits the transcript of the testimony deposition of Bayer Healthcare through its
`
`representative, Lisa Halprin Fleisher, former Global Brand Director — Aleve/Flanax & New
`
`Products. A true and correct copy of the certified transcript of the deposition, together with
`
`exhibits, is attached hereto.
`
`Dated: September 6, 2011
`
`Respectfully Submitted,
`
`PATTISHALL, MCAULIFFE, NEWBURY,
`HILLIARD & GERALDSON LLP
`
`By
`
`/Phillip Barengolts
`Bradley L. Cohn
`Phillip Barengolts
`Alexis E. Payne
`Ian J. Block
`
`311 South Wacker Drive
`
`Suite 5000
`
`Chicago, Illinois 60606
`Telephone (312) 554-8000
`
`Attorneys for Bayer Consumer Care AG
`
`3704-75vl
`
`

`
`CERTIFICATE OF ELECTRONIC TRANSMISSION
`
`I hereby certify that a copy of the foregoing PETITIONER'S NOTICE OF FILING
`
`TESTIMONY, DEPOSITION TRANSCRIPT OF BAYER HEALTHCARE THROUGH
`
`ITS REPRESENTATIVE, LISA HALPRIN FLEISHER, FORMER GLOBAL BRAND
`
`DIRECTOR — ALEVE/FLANAX & NEW PRODUCTS, AND EXHIBITS are being
`
`electronically transmitted to the Patent and Trademark Office on September 6th, 2011.
`
`/Phillip Barengolts/
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a copy of the foregoing PETITIONER'S NOTICE OF FILING
`
`TESTIMONY, DEPOSITION TRANSCRIPT OF BAYER HEALTHCARE THROUGH
`
`ITS REPRESENTATIVE, LISA HALPRIN FLEISHER, FORMER GLOBAL BRAND
`
`DIRECTOR — ALEVE/FLANAX & NEW PRODUCTS, AND EXHIBITS, were served
`
`upon:
`
`Philip L. O’Neill
`Jacobson Holman PLLC
`400 7”‘ St., N.W., 6”‘ Floor
`Washington, D.C. 20004
`
`this 6th day of September, 2011, via first class mail, postage pre—paid.
`
`/Phillip Barengoltsl
`
`

`
`Capital Reporting Company
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __X
`
`BAYER CONSUMER CARE AG,
`
`ORIGINAL
`
`Petitioner,
`
`Cancellation No.:
`
`92047741
`
`BELMORA LLC,
`
`Registrant.
`_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __.X
`
`C O N F I D E N T I A L
`
`:5,»--~.‘
`
`DATE: Thursday, August 11, 2011
`
`TIME:
`
`11:10 a.m.
`
`EXAMINATION BEFORE TRIAL of LISA HALPRIN
`
`FLEISHER,
`
`taken by the Petitioner, pursuant
`
`to notice,
`
`held at THE WESTIN GOVERNOR MORRIS,
`
`2 Whippany Road,
`
`Parsippany, New Jersey, before Suzanne J. Stotz, CCR,
`
`of Capital Reporting Company,
`
`a Notary Public in and
`
`for the State of New Jersey and New York.
`
`(866) 448 — DEPO
`www.CapitalReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`A P P E A R A N C E S
`
`On behalf of Petitioner:
`
`BRADLEY L. COHN, ESQUIRE
`
`— and —
`
`PHILIP BARENGOLTS, ESQUIRE
`
`Pattishall McAuliffe Newbury Hilliard &
`
`Geraldson, LLP
`
`311 South Wacker Drive, Suite 5000
`
`Chicago, Illinois 60606
`
`312-554-8000
`
`bcohn@pattishall.com
`
`pb@pattishall.com
`
`On behalf of Registrant:
`
`PHILIP L. O'NEILL, ESQUIRE
`
`Jacobson Holman, PLLC
`
`400 Seventh Street, N.W.
`
`Washington, DC 20004
`
`202—638—6666
`
`poneill@jhip.com
`
`(866) 448 - DEPO
`www.CapitaIReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`L I S A
`
`H A L P R I N
`
`F L E I S‘H E R,
`
`315 West
`
`86th Street, Apartment 9A, New York, New York
`
`10024, called as a witness, having been first duly
`
`sworn by
`
`a Notary Public of the State of New York,
`
`was
`
`examined
`
`and testified as follows:
`
`EXAMINATION BY
`
`MR. COHN:
`
`Q
`
`Good morning.
`
`Good morning.
`
`Will you please state your name for the
`
`/__,
`
`Lisa Halprin Fleisher.
`
`Could you please spell that for us?
`
`L-I-S-A H—A-L-P-R-I—N F-L—E-I—S-H-E—R.
`
`What is your home address?
`
`315 West 86th Street, Apartment 9A, New
`
`New York 10024.
`
`Are you currently employed?
`
`Yes.
`
`By whom?
`
`Bayer Healthcare.
`
`What is your current business address?
`
`36 Columbia Road, Morristown, New Jersey
`
`(866) 448 — DEPO
`www.Capita1Report'ingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`Q
`
`Would you please describe your educational
`
`background for us?
`
`A
`
`I have a B.A.
`
`in history from Vassar
`
`College and an M B.A.
`
`from Vanderbilt University.
`
`Q
`
`What is your current position with Bayer
`
`Healthcare?
`
`A
`
`I am the marketing director for the One A
`
`Day franchise.
`
`MR. O'NEILL:
`
`I beg your pardon?
`
`THE WITNESS:
`
`I am the marking director
`
`for the One A Day franchise.
`
`Q
`
`A
`
`Q
`
`How long have you held that position?
`
`Approximately eight days.
`
`Did you have a position with Bayer prior
`
`to being the marketing director for One A Day?
`
`A
`
`Yes.
`
`I was the global brand director for
`
`Aleve, Flanax, Apranax and analgesic new products.
`
`Q
`
`A
`
`What are Aleve, Flanax and Apranax?
`
`They are naproxen sodium brands that are
`
`sold in countries around the world.
`
`Q
`
`A
`
`Why does Bayer group them together?
`
`We manage and market
`
`them as one business.
`
`We use the same marketing strategy,
`
`the same
`
`go—to—market approach in terms of targeting
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`segmentation and advertising strategy.
`
`They just
`
`happen to have different brand names in different
`
`countries based on historical legacy.
`
`Q
`
`Why does Bayer have different brand names
`
`for the same products?
`
`A
`
`It is really historical. We, Bayer, was a
`
`joint venture partner with Roche in the United
`
`States for the Aleve brand.
`
`Roche originally owned
`
`the Flanax brand, it was Rx.
`
`It was then switched
`
`OTC outside of the U.S. Bayer acquired Roche in
`
`2000 —— late 2004, 2005. And as a result, we then
`
`had both the Flanax and the Aleve brand names with
`
`the same marketing strategy.
`
`Q
`
`And when you say Rx and OTC, can you just
`
`explain what you mean by those?
`
`A
`
`Yes. Naproxen sodium was originally an Rx
`
`product
`
`in all markets. And it was switched to
`
`over—the—counter status.
`
`So Rx meaning a doctor
`
`had to prescribe it and you needed a prescription
`
`in order to get it from the store. And then when
`
`we switched it to OTC it meant
`
`the consumers could
`
`purchase it on their own without a prescription.
`
`Q
`
`How long did you hold the position of
`
`global brand director for Aleve, Flanax, Apranax?
`
`(866) 448 - DEPO
`www.Capita1Repo1'fingCompany.com
`© 2011
`
`

`
`Capital Reporting Company.
`
`L. HALPRIN FLEISHER
`
`Two and a half years.
`
`Approximately 2009 to 2011?
`
`Uh-huh, until July 31st of this year.
`
`What were your responsibilities as global
`
`A
`
`Q
`
`A
`
`Q
`
`brand director for Aleve, Flanax and Apranax?
`
`A
`
`I was responsible for the long-term
`
`development and vision and growth of the franchise
`
`for Aleve, Flanax and Apranax, which included
`
`advertising development, new product development,
`
`working directly with countries in order to develop
`
`growth strategies and competitive strategies, and
`
`building long—term strategy for growth in the
`
`future.
`
`Q
`
`And did your responsibilities include
`
`activities in the United States and outside the
`
`United States?
`
`A
`
`Q
`
`Yes.
`
`Can you briefly describe your employment
`
`history for us?
`
`A
`
`Yes. After my MBA I began my career in
`
`brand management with Alberto Culver where I marked
`
`for seven years in consumer marketing.
`
`I
`
`then moved to Bristol Myers Squibb where
`
`I spent
`
`two years in global category development,
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`which is strategic marketing.
`
`And then in 1998 I came to Bayer. While
`
`at Bayer I have held a number of different
`
`positions in the global arena as well as U.S.
`
`marketing, probably the majority of my career in
`
`analgesics.
`
`Q
`
`You said you had -— you have had multiple
`
`positions at Bayer since you arrived in 1998?
`
`A
`
`No.
`
`I began with Bayer in 1998. And I
`
`was hired to work in the global strategy group in
`
`analgesics where I was the team leader for aspirin,
`
`pain and new product development. And then due to
`
`different reorganizations my role changed over the
`
`years.
`
`I worked in region marketing where I worked
`
`directly with Latin America. And then I became the
`
`global head for gastrointestinals. And then I
`
`moved into U.S. marketing and new product
`
`development and then back to global.
`
`Q
`
`Has your office been in the same location
`
`since you started working for Bayer?
`
`A
`
`Q
`
`Yes.
`
`Always in Morristown, New Jersey?
`
`Yes.
`
`Are you familiar with Bayer‘s Flanax
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`product
`
`in Mexico?
`
`A
`
`Q
`
`A
`
`Yes.
`
`How are you familiar with that product?
`
`I am the global brand —— I was the global
`
`brand director for Aleve, Flanax, Apranax.
`
`So I
`
`worked on it every day.
`
`Q
`
`What were your responsibilities for the
`
`Flanax product
`
`in Mexico?
`
`A
`
`I worked directly with the Mexican
`
`marketing department to help develop the long—term
`
`strategy, which included how to target consumers,
`
`which consumers to market to, develop consumer
`
`insights, new advertising and worked on new
`
`products as well as, you know,
`
`the recent relaunch
`
`of the 550 milligrams.
`
`Q
`
`Are there other Bayer employees you work
`
`with in Morristown, New Jersey that also have
`
`responsibilities for the Flanax product
`
`in Mexico?
`
`A
`
`Q
`
`Yes.
`
`Did you travel to Mexico as part of your
`
`work as global brand director for Aleve, Flanax and
`
`Apranax?
`
`A
`
`Q
`
`Yes,
`
`a couple of times a year.
`
`Why did you travel to Mexico?
`
`(866) 448 - DEPO
`www.CapitalReportir1gCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`A
`
`Because we work directly with the
`
`marketing team in Mexico on projects such as
`
`advertising development, new products, we would
`
`have market updates to become familiar with what
`
`the competitive situation was and discuss long—term
`
`strategy.
`
`Q
`
`Can you give some examples of some of the
`
`projects that you worked on for the Flanax brand in
`
`Mexico?
`
`A
`
`Yes. We worked on reevaluating the target
`
`segmentation. We worked on developing new consumer
`
`insights which led to advertising, which was
`
`recently put on the air. We worked on the launch
`
`of the Liquigels. We worked on recently an overall
`
`marketing process to understand how best to spend
`
`marketing investment behind the brand across media
`
`channels.
`
`Q
`
`As part of your responsibilities as global
`
`brand director for Aleve, Flanax and Apranax did
`
`you review television ads for the Flanax brand in
`
`Mexico?
`
`A
`
`Q
`
`A
`
`Yes.
`
`You reviewed them before they went on air?
`
`Yes.
`
`I was responsible along with my
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`group in Morristown and Basel to approve the
`
`advertising brief which went to the agency, DDBO,
`
`to make sure that we were aligned,
`
`that the
`
`direction given to the agency was in line with the
`
`global brand strategy as well as the local market
`
`needs. We then would review the anamatics, which
`
`are the test commercials. And we would —- so that
`
`would be approved. And then we would review the
`
`final commercial before it went on air.
`
`Q
`
`Do you know a gentleman named Juan Jose
`
`,r‘\
`
`Bandera?
`
`A
`
`Q
`
`A
`
`Yes.
`
`How do you know him?
`
`He is the marketing director in Mexico and
`
`he is my partner.
`
`Q
`
`What kind of business interactions would
`
`you have with Mr. Bandera as they relate to the
`
`Flanax brand?
`
`A
`
`We worked very closely together on all the
`
`aspects which I just described.
`
`He would —— he and
`
`I would collaborate on the advertising development
`
`process, which included making sure we had a strong
`
`consumer insight,
`
`that we were all in agreement and
`
`aligned behind the advertising brief,
`
`that we were
`
`(866) 448 — DEPO
`www.Capita1Repo1'tingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`
`L. HALPRIN FLEISHER
`
`all aligned at the creative output for the
`
`commercial was in line with the actual advertising
`
`brief.
`
`We also talked about what the opportunities
`
`for long—term growth would be, what line extensions
`
`we should launch, when we needed to relaunch and
`
`any packaging restages.
`
`Q
`
`’ Let me show you what has previously been
`
`marked as Trial Exhibit 18.
`
`Can you identify this
`
`for us?
`
`A
`
`This is Flanax. This is the Flanax brand
`
`that is marketed in Mexico.
`
`y,,—\
`
`I
`
`Q
`
`Do you know why the Flanax logo looks the
`
`way it does?
`
`A
`
`Yes.
`
`That was very intentional in terms
`
`of communication to the consumer, because Flanax is
`
`an anti—inflammatory analgesics and so the idea was
`
`that it would start thick to kind of symbolize
`
`inflammation and then go down to a thin level at
`
`the end to show that the inflammation decreased.
`
`Q
`
`How do you know this about the appearance
`
`of the Flanax?
`
`A
`
`I know this from working on the business
`
`and talking to colleagues that helped develop it
`
`over time both in Basel as well as in Mexico.
`
`(866) 448 — DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`Q
`
`In your experience is there a segment of
`
`the United States consumers that would be familiar
`
`with Bayer's Mexican Flanax product?
`
`A
`
`Yes.
`
`I think that any Mexicans that live
`
`in the United States would surely be familiar with
`
`it if they had seen it in Mexico. There are a
`
`number of ways that they could be familiar even if
`
`they hadn't been in Mexico. We have advertising
`
`which is on Univision which is broadcast into the
`
`United States.
`
`I know that there are a number of
`
`border states,
`
`like California and Texas, with
`
`large communities. And it's very typical that
`
`Mexicans who are in the United States would be in
`
`search of brands from their home country that they
`
`are familiar with and comfortable with. We have
`
`done a number of analyses on other brands like Alka
`
`Seltzer and aspirin where we know through generally
`
`available research that Mexican consumers will seek
`
`brands from their home country.
`
`Q
`
`Does Bayer sell in the United States a
`
`product comparable to its Mexican Flanax product?
`
`A
`
`Q
`
`We sell Aleve.
`
`Would you consider another naproxen sodium
`
`product
`
`to be directly competitive to Aleve?
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`Yes.
`
`MR. COHN:
`
`I have no further questions.
`
`MR. O'NEILL:
`
`I would like you to go back
`
`about three questions to her somewhat
`
`lengthy
`
`answer,
`
`to the question relating to U.S. consumers,
`
`and read it to me.
`
`(At which time the following was read
`
`"Answer: We have done a number of
`
`analyses on other brands like Alka Seltzer and
`
`aspirin where we know through generally available
`
`research that Mexican consumers will seek brands
`
`from their home country.")
`
`EXAMINATION BY
`
`MR. O'NEILL:
`
`Q
`
`Now, Ms. Fleisher,
`
`let me ask you about
`
`those studies.
`
`You said that there were studies of
`
`Alka Seltzer and aspirin. Were there more than one
`
`study?
`
`A
`
`Let me clarify what I said. There is
`
`literature available through Hispanic marketing
`
`agencies that demonstrate that Mexican consumers,
`
`as well as other Hispanic consumers, often seek
`
`brands from their home countries and it shows their
`
`(866) 448 — DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`purchasing habits.
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`Can you name any of that literature?
`
`I don't recall exactly what
`
`the literature
`
`I mean it's definitely been a couple of years
`
`Do you have it in your office?
`
`I don't know.
`
`Are you describing it from your memory?
`
`Yes.
`
`And how long has it been since you've read
`
`the literature?
`
`A
`
`Q
`
`Several years.
`
`And the takeaway from the literature is
`
`that -— is it specifically directed to Mexican
`
`consumers?
`
`A
`
`I think there are Hispanic studies that
`
`break it down by Latin American population,
`
`so they
`
`will talk about Mexican, Puerto Rican and other
`
`Latin American countries.
`
`Q
`
`Okay. But I'm talking just about
`
`the ones
`
`that you mentioned about
`
`the literature on Alka
`
`Seltzer and aspirin.
`
`A
`
`Yes.
`
`I'm saying that the references to
`
`Mexican consumers would be within studies talking
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`about multiple populations.
`
`Q
`
`And this is not based upon research that
`
`Bayer has commissioned,
`
`is it? Yes or no?
`
`A
`
`May I clarify that?
`
`Please give me a yes or no and then
`
`Okay.
`
`So --
`
`Your statement about --
`
`A
`
`There's both.
`
`So there's generally
`
`available studies from Hispanic marketing
`
`companies. And in the past Bayer has looked at
`
`taking,
`
`for example,
`
`the Aspirina brand from Mexico
`
`and marketing it in the United States.
`
`So there
`
`was research associated with it, but
`
`I am not
`
`familiar with it.
`
`Q
`
`So someone told you about that research
`
`that you are not familiar with?
`
`A
`
`I am familiar that they did it.
`
`MR. O'NEILL:
`
`I'm going to move to
`
`strike —— at this point move to strike any
`
`testimony related to those studies based upon a
`
`hearsay answer.
`
`Would you go back and read that next
`
`sentence?
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`
`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`(At which time the following was read
`
`"Answer:
`
`I know that there are a number
`
`of border states,
`
`like California and Texas, with
`
`large communities. And it's very typical that
`
`Mexicans who are in the United States would be in
`
`search of brands from their home country that they
`
`are familiar with and comfortable with.")
`
`Q
`
`A
`
`How do you know that?
`
`I just explained how I know that.
`
`Through
`
`research that I have seen.
`
`,.—~\
`
`Q
`
`You've read research, specific research
`
`that said Mexicans in border communities are --
`
`MR. O'NEILL: What is the rest of that?
`
`(At which time the following was read
`
`"Answer:
`
`I know that there are a number
`
`of border states,
`
`like California and Texas, with
`
`large communities. And it's very typical that
`
`Mexicans who are in the United States would be in
`
`Search of brands from their home country that they
`
`are familiar with and comfortable with.")
`
`Q
`
`Now,
`
`is this a reference to the same
`
`research you just talked about a few minutes ago?
`
`(866) 448 - DEPO
`www.CapitalReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`
`L. HALPRIN FLEISHER
`
`A
`
`It's based on my body of knowledge of the
`
`marketers over the past 22 years.
`
`Q
`
`A
`
`So it is not based upon research?
`
`It is.
`
`I have read research over a number
`
`of years.
`
`I've talked to Hispanic advertising
`
`agencies. We've seen presentations. There are
`
`multiple contact points where this has been
`
`demonstrated.
`
`MR. O'NEILL:
`
`Now,
`
`I'm going to move to
`
`exclude all testimony related to the border
`
`phenomenon, I'll call it, which she just testified
`
`to is based on hearsay.
`
`Now, can we go back and read the first
`
`part of that answer?
`
`(At which time the following was read
`
`"Answer: Yes.
`
`I
`
`think that any Mexicans
`
`that live in the United States would surely be
`
`familiar with it if they had seen it in Mexico.
`
`There are a number of ways that they could be
`
`familiar even if they hadn't been in Mexico. We
`
`have advertising which is on Univision which is
`
`broadcast into the United States.”)
`
`Q
`
`Are you describing -— let me think about
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`
`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`that. Are you suggesting that Univision in the
`
`United States runs Mexican advertising?
`
`A
`
`I am suggesting that we purchase
`
`advertising on Univision in Bayer de Mexico.
`
`Q
`
`And that,
`
`the television broadcast can be
`
`heard in the United States?
`
`Is that what you're
`
`saying?
`
`A
`
`Q
`
`A
`
`Q
`
`I'm saying it is possible.
`
`It is possible?
`
`Sure.
`
`And that is based just upon what you
`
`are —— just a general hunch or have you actually
`
`yourself heard or watched Mexican television in the
`
`United States?
`
`A
`
`I had not myself.
`
`MR. O'NEILL: Okay.
`
`I move to exclude the
`
`rest of it based on hearsay.
`
`Q
`
`When you talked a few minutes ago about
`
`border states,
`
`is it likely that -— strike that.
`
`Were you talking about the incidental effect of
`
`information flowing across border that would exist
`
`with respect to any consumer product?
`
`A
`
`Q
`
`I don't understand the question.
`
`Well, let's take Canada,
`
`for example. We
`
`(866) 448 - DEPO
`www.CapitalReportingCompany.com
`© 2011
`
`

`
`
`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`have many states that border Canada, don't we?
`
`Would you expect that some number of people living
`
`in the United States close to the border might be
`
`aware of products that are sold only in Canada?
`
`A
`
`Q
`
`I don't know.
`
`Is that what you were describing -— that
`
`same kind of phenomenon,
`
`is that what you were
`
`describing in connection with --
`
`A
`
`No.
`
`I was talking about something
`
`different.
`
`Q
`
`A
`
`Explain the difference.
`
`I haven't seen any research or studies
`
`about Canada in particular.
`
`Q
`
`A
`
`You haven't seen any research?
`
`Because I am speaking about a specific
`
`Hispanic effort that we had in the past. We have
`
`never had a specific Canadian effort,
`
`so I don't
`
`know.
`
`Q
`
`But Bayer hasn't attempted to conduct any
`
`market research about
`
`the knowledge of U.S.
`
`residents of any of its Mexican products, has it?
`
`A
`
`Q
`
`Could you restate that question?
`
`Bayer hasn't conducted any market research
`
`aimed at testing the extent to which, if any, U.S.
`
`(866) 448 — DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`residents are aware of or purchase Mexican products
`
`of Bayer?
`
`A
`
`I don't know the answer to that.
`
`It is
`
`possible when we looked at aspirin.
`
`Q
`
`Okay. But as you sit here today you are
`
`not aware of any?
`
`A
`
`Q
`
`I don't know.
`
`You are certainly not aware of any with
`
`respect to Flanax, are you?
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`I don't know.
`
`Meaning?
`
`Meaning I don't know.
`
`That you are aware or not aware?
`
`I am not aware of any particular research.
`
`I don't know if there is or isn't.
`
`MR. O'NEILL: Okay.
`
`No further questions.
`
`MR. COHN: Could we just have a minute?
`
`EXAMINATION BY
`
`MR. COHN:
`
`Q
`
`The research that you were discussing
`
`earlier as it is relates to Hispanic consumers in
`
`the United States,
`
`is that the sort of research
`
`that you rely on for your own marketing purposes?
`
`A
`
`If we were looking at a particular project
`
`(866) 448 - DEPO
`www.CapitalRepor’ringCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`L. HALPRIN FLEISHER
`
`we might refer to that, yes.
`
`MR. COHN:
`
`No further questions.
`
`EXAMINATION BY
`
`MR. O'NEILL:
`
`Q
`
`As you sit here today you can't tell us
`
`the name, author or publication of any of that
`
`research, can you?
`
`A
`
`No, not off the top of my head.
`
`If you wanted to be sure about what it
`
`would have to go back and read it,
`
`you?
`
`If I wanted to be sure of what?
`
`Of what it says, what the writings
`
`actually say, you would have to go back and read
`
`it, wouldn't you?
`
`Sure.
`
`And you haven't done that recently, have
`
`No.
`
`MR. O'NEILL:
`
`No further questions.
`
`(whereupon, at 11:40 a.m.,
`
`A the deposition of Lisa Halprin Fleisher
`
`was concluded.)
`
`(866) 448 — DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`C E R T I F I C A T E
`
`STATE OF NEW YORK)
`
`ISS
`
`COUNTY OF NEW YORK)
`
`I, SUZANNE J. STOTZ, a Certified
`
`Court Reporter and Notary Public in and for the State
`
`of New Jersey, and Notary Public in and for the State
`
`of New York, do hereby certify:
`
`That LISA HALPRIN FLEISHER,
`
`the
`
`witness whose deposition is hereinbefore set forth, was
`
`duly sworn by me and that such deposition is a true
`
`record of the testimony given by such witness.
`
`I further certify that I am not related
`
`to any of the parties to this action by blood or
`
`marriage and that I am in no way interested in the
`
`outcome of this matter.
`
`IN WITNESS WHEREOF,
`
`I have hereunto set
`
`my hand this 22nd day of August, 2011.
`
`My Commission Expires: April 25, 2013
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`WITNESS
`
`EXAMINATION BY
`
`Lisa Halprin Fleisher
`
`Mr. Cohn
`
`Mr. O'Neill
`
`Mr. Cohn
`
`Mr. O'Neill
`
`E X H I B I T S *
`
`(* No exhibits were marked.)
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`‘Capital Reporting Company
`708 Third Avenue, 5th Floor
`New York, NY 10017
`
`E R R A T A
`
`S H E E T
`
`Case Name:
`
`Bayer Consumer Care vs. Belmora, et a1.
`
`Depo Date:
`
`Thursday, August 11, 2011
`
`Deponent:
`
`Lisa Halprin Fleisher
`
`Page/Line
`
`Now Reads
`
`Should Read
`
`Signature
`
`(866) 448 - DEPO
`WWW.Capita1Repo1'tingCoInpany.,com
`© 2011
`
`

`
`Capital Reporting Company
`
`A C K N O W L E D G E M E N T
`
`O F
`
`D E P O N E N T
`
`25
`
`STATE OF NEW YORK)
`
`ZSS
`
`COUNTY OF NEW YORK)
`
`I, LISA HALPRIN FLEISHER, hereby
`
`certify that I have read the transcript of my testimony
`
`taken under oath in my deposition of August 11, 2011;
`
`that the transcript is a true, complete and correct
`
`record of what was asked, answered and said during this
`
`deposition, and that the true answers on the record as
`
`given by me are true and correct.
`
`LISA HALPRIN FLEISHER
`
`SUBSCRIBED AND SWORN BEFORE ME THIS
`
`DAY OF
`
`Notary Public
`
`My Commission Expires: April 25, 2013.
`
`(866) 448 - DEPO
`www.Capita1Repor’dngCompany.com
`© 2011
`
`

`
`Capital Reporting Company
`
`0
`
`07962 3 :25
`
`1
`
`10017 24:2
`
`10024 3:4,18
`
`111:12 24:5 25:9
`
`11:101:13
`
`11:40 21:22
`
`13 23:5
`
`18 11:9
`
`1998 7:3,9,10
`
`400 2:18
`
`5
`
`5000 2:9
`
`550 8:16
`
`5th 24:1
`
`6
`
`60606 2:10
`
`7
`
`708 24:1
`
`8
`
`2
`
`86th 3:3,17
`
`21:17
`
`20 23:6
`
`2000 5:12
`
`20004 2:19
`
`2004 5:12
`
`2005 5:12
`
`9
`
`92047741 1:7
`
`9A 3:3,17
`
`44...
`a.m1:13 21:22
`
`agreement 10:24
`
`aimed 19:25
`
`air 9:14,2410:10
`
`al 24:4
`
`Alberto 6:22
`
`Aleve 4:18,19
`
`5:9,13,25 6:6,9
`
`8:6,22 9:20
`
`12:23,25
`
`aligned 10:4,25
`11:2
`
`Alka 12:17
`
`13:11,1914:22
`
`am 4:8,118:5
`
`15:15,1918:4
`19:16 20:15
`
`22:15,17
`
`America 7:16
`
`American
`
`14: 18,20
`
`4:14 6:3
`
`Apranax 4218,19
`5:25 6:6,9 8:6,23
`9:20
`
`April 22:25 25:23
`
`arena 7:5
`
`arrived 7:9
`
`aspects 10:21
`
`aspirin 7:1212:18
`13:12,1914:23
`20:5
`
`Aspirina 15:13
`
`associated 15:15
`
`attempted 19:20
`
`August 1:12 22:20
`24:5 25:9
`
`author 21 :7
`
`available 12:19
`
`13:12,2215:11
`
`Avenue 24:1
`
`2009 6:3
`
`2011 1:12 6:3
`
`22:20 24:5
`
`25:9,19
`
`2013 22:25 25:23
`
`202-638-6666 2:20
`
`21 23:7
`
`22 17:3
`
`22nd 22:20
`
`25 22:25 25:23
`
`3 23:4
`
`311 2:9
`
`312-554-8000 2:11
`
`315 323,17
`
`31st 6:4
`
`36 3:24
`
`acquired 5:11
`
`across 9:17 18:22
`
`action 22: 16
`
`activities 6:16
`
`actual 11:3
`
`actually 18:13
`21:15
`
`analgesic 4:18
`
`analgesics 727,12
`11:17
`
`analyses 12:17
`13:11
`
`anamatics 10:7
`
`answer 13:6,10
`
`15:2316:4,18
`
`17:15,18 20:4
`
`address 3 216,23
`
`answered 25:11
`
`aware 19:5
`
`20:2,7,9,14,15
`
`B
`
`B.A 4:4,5
`
`background 4:3
`
`Bandera 10:12,18
`
`BARENGOLTS
`2:6
`
`ads 9:21
`
`answers 25:12
`
`based 5:4 1523,22
`
`advertising 5:2
`6:10 8:14 924,13
`
`10:3,22,25 11:3
`
`12:9 17:6,23
`
`18:3,5
`
`AG 1:4
`
`agencies 13:23
`17:7
`
`agency 10:3,5
`
`ago 14:6 16:25
`18:19
`
`anti-
`
`inflammatory
`1 1 : 17
`
`Apartment 3:3,17
`
`APPEAL 1:2
`
`appearance 11:21
`
`approach 4:25
`
`approve 10:2
`
`approved 10:9
`Approximately I
`
`(866) 448 - DEPO
`www.Capita1ReportingCompany.com
`© 2011
`
`17:2,4,13
`
`18:12,18
`
`Basel 10:2 11:25
`
`Bayer 1:4 3:22
`4:6,15,22
`
`5:5,7,11
`
`7:3,4,9,10,21
`8:17 12:21
`
`1524,12 18:5
`
`19:20,24 20:3
`24:4
`
`Bayer's 7:25 12:4
`
`

`
`Capital Reporting Company
`
`12:13 16:6,14,20
`
`DC 2:19
`
`companies 15:12
`
`DDBO 10:3
`
`Company 1:19
`24:1
`
`comparable 12:22
`
`competitive 6:12
`9:6 12:25
`
`complete 25:10
`
`concluded 21 :24
`
`conduct 19:20
`
`conducted 19:24
`
`connection 19:9
`
`consider 12:24
`
`de 18:5
`
`decreased 11:20
`
`definitely 14:5
`
`demonstrate 13:2
`
`demonstrated
`
`17:9
`
`department 8:11
`
`Depo 24:5
`
`Deponent 24:6
`
`deposition 21:23
`22:12,13 25:9,12
`
`consumer 1:4 6:23
`
`describe 4:2 6:19
`
`19:2,5,14
`
`Canadian 19:18
`
`Cancellation 1:6
`
`Capital 1:19 24:1
`
`Care 1:4 24:4
`
`career 6:21 7:6
`
`Case 24:4
`
`category 6:25
`
`CCR 1:18
`
`certainly 20:9
`
`Certified 22:7
`
`certify 22: 10,15
`25:8
`
`changed 7:14
`
`channels 9:18
`
`bcohn@pattishall.
`com 2:12
`
`became 7:16
`
`become 9:5
`
`beg 4:10
`
`behalf 2:3,15
`
`behind 9:17 10:25
`
`Belmora 1:7 24:4
`
`best 9:16
`
`blood 22:16
`
`BOARD 1:2
`
`body 17:2
`
`border 12:12
`
`16:5,14,l917:11
`
`18:20,22 19:2,4
`
`BRADLEY 2:4
`
`brand 4:17
`
`5:3,5,9,10,13,25
`6:6,22 8:5,6,22
`
`8:13 9:1210:24
`11:1618:23 24:4
`
`Chicago 2:10
`
`consumers 5:22
`
`clarify 13 :21
`15:5,7
`
`close 19:4
`
`8:12,1312:3,19
`
`13:6,13,23,24
`
`14:16,25 20:22
`
`described 10:21
`
`describing 14:9
`17:25 19:7,9
`
`develop 6:11
`8:11,1311:24
`
`developing 9:12
`
`9:9,17,20,21
`10:6,1911:11
`15:13
`
`brands 4:20
`
`12:15,17,20
`
`13:11,13,25
`
`16:8,22
`
`closely 10:20
`
`Cohn 2:4 3:813:3
`
`20:18,20 21:3
`
`23:4,6
`
`collaborate 10:22
`
`break 14:18
`
`colleagues 11:24
`
`brief 10:3,25 11:4
`
`briefly 6:19
`
`Bristol 6:24
`
`broadcast 12:10
`
`17:24 18:6
`
`building 6: 13
`
`business 3:23 4:23
`
`10:17 11:23
`
`___C_____
`C.C.R 22:23
`
`California 12:12
`
`1615,19
`
`Canada 18:25
`
`College 4:5
`
`Columbia 3:24
`
`comfortable 12:16
`
`16:9,23
`
`commercial 10:10
`
`11:3
`
`25 :23
`
`commissioned
`
`15:4
`
`communication
`
`11:16
`
`contact 17:8
`
`correct 25: 1 0,13
`
`countries 4:21 5:4
`
`6:1113:2514:20
`
`country 12:15,20
`13:1416:8,22
`
`COUNTY 22:5
`25:5
`
`couple 8:24 14:5
`
`Court 22:8
`
`creative 11:2
`
`Culver 6:22
`
`development
`6:8,10,25
`
`7213,19 9:4
`10:22
`
`difference 19: 12
`
`different 5:3,5
`7:4,14 19:11
`
`directed 14:15
`
`direction 10:5
`
`directly 6:11 7:16
`8:10 9:212:25
`
`director
`
`4:8,11,16,17
`
`5:25 6:6 826,22
`9:20 10:15
`
`commercials 10:8
`
`current 3:23 4:6
`
`Commission 22:25
`
`currently 3:19
`
`D
`
`discuss 9:6
`
`Date 1:12 2425,25
`
`discussing 20:21
`
`day 4:9,12,16 8:7
`22:20 25:19
`
`doctor 5:19
`
`done 12:17 13:10
`21:18
`
`communities
`
`days 4:14
`
`(866) 448 - DEPO
`www.Capita1Repo1'tingC0mpany.com
`© 2011
`
`

`
`Drive 2:9
`
`due 7:13
`
`duly 3:4 22:13
`
`during 25:11
`
`HE?
`earlier 20:22
`
`educational 4:2
`
`effect 1 8 :21
`
`effort 19:17,18
`
`eight 4: 14
`
`employed 3:19
`
`employees 8:17
`
`employment 6: 19
`
`ESQUIRE
`2:4,6,16
`
`et 24:4
`
`exactly 14:4
`
`EXAMINATION
`
`1:15 3:713:15
`
`Capital Reporting Company
`
`F
`
`familiar 7:25 8:4
`
`9:5 12:3,6,8,16
`15:16,18,19
`
`16:9,23 17:20,22
`
`final 10:10
`
`first 3:417:14
`
`Flanax 4118,19
`
`5:10,13,25 626,9
`7:25 8:6,9,19,22
`9:9,20,21 10:19
`
`11:11,13,16,22
`
`12:4,22 20:10
`
`Fleisher 1:16
`
`3:1,13 4:15:1
`6:17:18:19:1
`
`10:111:112:1
`
`13:1,1714:1
`15:116:117:1
`
`18:119:120:1
`
`21:1,23 22:11
`23:4 24:6
`
`6:5,25
`
`7:5,11,17,19
`
`8:5,22 9:1910:6
`
`go-to-market 4:25
`
`GOVERNOR
`
`1:17
`
`group 4:22 7:11
`10:2
`
`growth 6:8,12,13
`11:5
`
`H
`
`habits 14:2
`
`half 6:2
`
`Halprin1:15
`3:1,134:15:1
`6:17:18:19:1
`10:111:112:1
`
`13:114:115:1
`
`16:117:118:1
`
`19:120:1
`
`22:12
`
`hereunto 22:19
`
`Hilliard 2:7
`
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`(866) 448 - DEPO
`www.Capita1Rep0rt'ingCompany.com
`© 2011
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`

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`14:7
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`5: 19
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`Capital Reporting Company
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`12:4,19,22
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`14:15,19,25
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`minute 20:18
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`minutes 16:25
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`18:19
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`morning