BULKY DOCUMENTS
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`Proceeding/Serial No:
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`92049332
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`Filed:
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`1011412010
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`A
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`Title: DEPOSITIONS OF STEVE SETTEDUCATI
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`WI I'HOUT EXHIBITS.
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`92049332
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`Proceeding/Serial No:
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`92049332
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`Filed:
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`1011412010
`
`A
`
`Title: DEPOSITIONS OF STEVE SETTEDUCATI
`
`WI I'HOUT EXHIBITS.
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`Par:
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`1
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`of
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`1
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`92049332
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`Page 1
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`TRADEMARK TRIAL AND APPEAL BOARD
`
`STK, LLC,
`
`) Mark:
`)
`
`Certified
`
`BACKRACK Transcript
`
`Petitioner,
`
`) Registration No. 3,014,986
`
`V.
`
`BACKRACK,
`
`INC.,
`
`Registrant.
`
`)
`
`\_/\_/\/\/\/
`
`Filed:
`
`February 24, 2004
`
`Registered: November 15, 2005
`
`Cancellation No. 92—049,332
`
`DEPOSITION OF STEVE SETTEDUCATI
`
`(VOLUME II)
`
`TRANSCRIPT of the stenographic notes of
`
`the proceedings in the above-entitled matter as taken
`
`by and before MARY ANN ADAMS, a Certified Court
`
`Reporter and Notary Public of the State of New
`
`Jersey, held at the office of ARMOR DECK, 280 North
`
`Midland Avenue, Building S-1, Saddle Brook,
`
`New Jersey 07663, on Thursday, June 24, 2010,
`
`commencing at 6:38 p.m.
`
`Job No. NJ266872
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`800-227-8440
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`973-410-4040
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`Veritext/NJ Reporting Company
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`Page 2
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`A P P E A R A N C E S
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`PRICE & ADAMS
`
`BY:
`
`JOHN M. ADAMS, ESQ.
`
`4135 Brownsville Road
`
`Pittsburgh, Pennsylvania
`
`15227
`
`(412) 882-7170
`
`paip.1aw@verizon.net
`
`Attorneys for Petitioner
`
`PEPPER HAMILTON, LLP
`
`BY:
`
`J. ANTHONY LOVENSHEIMER, ESQ.
`
`3000 Two Logan Square
`
`Eighteenth and Arch Streets
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`Philadelphia, Pennsylvania
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`19103-2799
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`(215) 981-4000
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`lovensheimera@pepper1aw.com
`
`Attorneys for Registrant
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`INDEX
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`Page 3
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`PAGE
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`WITNESS:
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`STEVE SETTEDUCATI
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`CROSS EXAMINATION BY MR. LOVENSHEIMER.....
`
`NO.
`
`DESCRIPTION
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`EXHIBITS
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`BackRack—114 Printout from armordeck.us
`
`website
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`PAGE
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`148
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`BackRack-115 Printout from armordeck.us
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`152
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`website
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`BackRack—116
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`STK brochure
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`157
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`BackRack—117 Printout from www.stkusa.com
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`159
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`(Exhibits retained by counsel.)
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`CONFIDENTIAL PORTIONS
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`PAGES
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`12-13
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`18-19
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 4
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`STEVE SETTEDUCATI, having been previously sworn,
`
`testified as follows:
`
`CROSS EXAMINATION BY MR. LOVENSHEIMER:
`
`Q.
`
`So before I get
`
`too far into the
`
`catalog, let's just take a step back.
`
`We've been
`
`discussing Armor Deck's print catalogs.
`
`Can you tell
`
`me, are you involved in any of Armor Deck's Internet
`
`websites?
`
`A.
`
`Q.
`
`Yes,
`
`to some extent.
`
`And to what extent are you involved with
`
`that?
`
`them.
`
`A.
`
`I supervise or monitor what goes on with
`
`Q.
`
`And do you review ads for any of the
`
`product lines before they go onto the website?
`
`A.
`
`Q.
`
`No.
`
`What precisely do you do with regard to
`
`the content on the Armor Deck website?
`
`A.
`
`Review budget, see how much we're
`
`spending,
`
`look at the competitive search terms,
`
`look
`
`at how much we spend on them, see what kind of return
`
`on spend that we have on them.
`
`I
`
`think that
`
`summarizes it.
`
`Q.
`
`Now, with regard to competitive search
`
`terms, what do you mean by that term?
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 5
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`A.
`
`We talked about competitive search terms
`
`earlier whereby someone may advertise the word
`
`BackRack. That would be a competitive search term.
`
`Q.
`
`Do you, on behalf of Armor Deck,
`
`purchase or have you purchased a competitive search
`
`term BackRack?
`
`A.
`
`I believe we —— I don't know for
`
`certain, but
`
`I believe, yes, we have.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`And do you recall when that was?
`
`I
`
`think it's an ongoing thing.
`
`It's an ongoing thing.
`
`Yes.
`
`So if we were to run a Google search --
`
`well, first of all, was it through Google?
`
`A.
`
`Q.
`
`A.
`
`Yes, it is through Google, among others.
`
`And what others are you currently using?
`
`I can't even keep track of them.
`
`I
`
`don't know.
`
`I'm sure MSN and Yahoo.
`
`Q.
`
`Okay.
`
`So if one were to run a search
`
`through one of the search engines you've just named
`
`for the trademark BackRack, would Armor Deck show up
`
`as one of the sponsored links?
`
`A.
`
`I have a problem with answering the
`
`question in respect that what Adrian Jayne would do
`
`with the information that I provide you.
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 6
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`Q.
`
`I don't know how you can have an issue
`
`with that, because if one did run a search, wouldn't
`
`the result be evident by running the search?
`
`A.
`
`Again,
`
`I have a problem with answering
`
`that because of the way Adrian Jayne would use the
`
`information from this deposition as evidenced by the
`
`way he tried to use information in the past against
`
`Armor Deck.
`
`Q.
`
`Why would you be concerned about what he
`
`could do with information concerning your purchase of
`
`an ad word? Why would you be concerned about that?
`
`A.
`
`I can't go into it, you know, unless we
`
`have some sort of a protective order on what is
`
`discussed.
`
`MR. ADAMS:
`
`Can we put this under a
`
`confidential seal for attorneys’ eyes only?
`
`MR. LOVENSHEIMER:
`
`I don't think that
`
`there's a reason to put it under confidential seal,
`
`since the results of the search would indicate
`
`whether an ad word had been purchased or not.
`
`A.
`
`It's not quite that simple.
`
`It's a
`
`little more detailed.
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`MR. ADAMS: Answer the question to the
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`best you can with the information that you can,
`
`Mr. Setteducati, without revealing what you believe
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`800-227-8440
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 7
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`to be any confidences.
`
`A.
`
`Once I answer the question,
`
`then he has
`
`that information that could hurt us, and he has used
`
`it in the past.
`
`So again,
`
`if we can have a
`
`protective —— again,
`
`I'm not a --
`
`MR. ADAMS: Well --
`
`A.
`
`I'm not a professional, but if we could
`
`have some sort of protective order that Mr. Jayne is
`
`not going to turn around and broadcast this
`
`information like he has already tried to do in the
`
`past in other matters --
`
`MR. ADAMS: Okay.
`
`A.
`
`—-
`
`then I'd be more than happy to.
`
`MR. ADAMS: Let me ask you this. What
`
`is —— I'll object to this line of questioning for
`
`relevance insofar as the issue of cancellation.
`
`You're going to have to establish relevance to this
`
`line of questioning.
`
`MR. LOVENSHEIMER: Well,
`
`the relevance
`
`to this line of questioning is that Mr. Setteducati
`
`has made it a point of testifying that the purchase
`
`of an ad word for a product that he does not sell or
`
`that one does not sell somehow or another makes the
`
`term generic.
`
`And what I'm concerned with is that
`
`the purchase of an ad word for goods that are —— that
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 8
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`you're —— when you're actually selling competitive
`
`product and you're purchasing the ad word as a basis
`
`for developing foot traffic for your competing
`
`product,
`
`that —— that apparently seems to be the
`
`concern that he has regarding the potential backlash
`
`that he might get
`
`from BackRack.
`
`But with regard to this, it's -— I need
`
`to find out if he is indeed purchasing the ad word
`
`for BackRack, and if so,
`
`is he then out there trying
`
`to create the evidence that somehow or another he's
`
`now trying to use to create a genericide of the term
`
`BackRack.
`
`A.
`
`I could tell you that that is not the
`
`case, but at which point that I reveal the genesis of
`
`why I'm concerned,
`
`then the cat will be out of the
`
`bag, and Mr. Jayne has evidenced in the past how he
`
`would go on a PR campaign to hurt Armor Deck with the
`
`information that I would reveal.
`
`It has happened in
`
`the past as recently as two years ago.
`
`I do not want
`
`to answer that question.
`
`MR. ADAMS:
`
`I'm going to instruct my
`
`client not
`
`to answer that question.
`
`A.
`
`Unless we have some sort of —— I don't
`
`know if it's called a protective order or some sort
`
`of —— I'm guaranteed that that information —— I'm
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 9
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`more than happy to let you and even Mr. Jayne have
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`it, but
`
`I need some sort of —— I don't even know if
`
`Mr. Jayne should have it, but
`
`I need some sort of
`
`assurances that he's not going to turn around and use
`
`it as a negative PR campaign against Armor Deck as he
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`has done in the past.
`
`Q.
`
`And what —— well,
`
`I
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`think the —— the
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`concern that I've got is that we don't really have a
`
`way to really assess the validity of that point if we
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`don't know. And the problem is that I
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`think that
`
`we're under an obligation in the Board proceeding to
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`limit the use of the information. But to some
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`extent,
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`if the information is evident
`
`from running a
`
`search,
`
`I don't know what confidences you're
`
`concerned with.
`
`MR. ADAMS: Well, he has a concern, and
`
`I
`
`think that's the only thing that's relevant. And
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`you may not share in that concern.
`
`A.
`
`I
`
`think once I reveal the concern, it
`
`will become quite evident to you.
`
`I don't have a
`
`problem revealing it.
`
`I just need an assurance that
`
`Mr. Jayne will not use it for anything else that is
`
`not germane to this proceeding.
`
`MR. ADAMS:
`
`Can you provide that
`
`assurance?
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 10
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`A.
`
`And in that context,
`
`I don't believe you
`
`should have a problem with it, unless Mr. Jayne is
`
`going to take that information and run with it and
`
`create a negative PR campaign against us, which,
`
`again, he has demonstrated in the past,
`
`I can clearly
`
`show you.
`
`MR. ADAMS: Okay. This falls into the
`
`range of confidential business information, which I
`
`believe is beyond the scope of the cancellation
`
`proceeding, notwithstanding how you've characterized
`
`it as being relevant.
`
`MR. LOVENSHEIMER: Well,
`
`I think that
`
`Mr. Setteducati should just answer the question. And
`
`we have in place,
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`I believe,
`
`just under the fact that
`
`we're actually before the Board in this proceeding,
`
`an obligation to limit the use of what we —— what's
`
`used to the proceedings in place.
`
`I can't sit here
`
`right now and tell you that I can control what
`
`Mr. Jayne may or may not do down the road.
`
`MR. ADAMS: Well, if --
`
`A.
`
`Then I have a problem with that.
`
`MR. ADAMS: Yeah.
`
`A.
`
`I'll be more than willing to talk about
`
`it, but
`
`I have a problem with that.
`
`MR. LOVENSHEIMER:
`
`Can we go off the
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 11
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`record for a second?
`
`(Discussion off the record.)
`
`MR. LOVENSHEIMER: Wefre back on the
`
`record.
`
`Q.
`
`Mr. Setteducati,
`
`just to reiterate what
`
`we've just discussed, we are going to put
`
`the -— this
`
`next portion of testimony, we're going to treat it as
`
`attorneys‘ eyes only for the purposes of this
`proceeding. And if at any point we feel that we need
`
`to —— BackRack needs to challenge that designation,
`
`that issue will be addressed to the Board to make a
`
`decision as to that status.
`
`A.
`
`And as you said a moment ago, it is the
`
`burden on the challenging party, which will be you,
`
`to prove otherwise that you'd have to have it
`
`unsealed.
`
`Q.
`
`' Correct.
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 14
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`(This concludes the portion of the
`
`transcript designated confidential.)
`
`BY MR. LOVENSHEIMER:
`
`Q.
`
`Okay. Let's see, where were we?
`
`So then we were discussing your relation --
`
`your role with the Internet website run by Armor
`
`Deck.
`
`So other than the budget and your role in
`
`purchasing competitive search terms, do you have any
`
`other duties or role that you play with respect to
`
`the Armor Deck website?
`
`A.
`
`Q.
`
`Not that I can think of.
`
`Okay. With regard to the competitive
`
`search terms, can you tell me, does Armor Deck
`
`purchase competitive search terms?
`
`A.
`
`Q.
`
`Off the record a minute.
`
`Can I do that?
`
`No. No. We're on the record.
`
`The question was, does Armor Deck purchase
`
`competitive search terms?
`
`A.
`
`Again,
`
`I don't want
`
`to answer that for.
`
`the same reason, it puts us into the same light.
`
`MR. ADAMS: Okay. We're going to go
`
`back to the confidential.
`
`Q.
`
`No,
`
`this can't be, because of the fact
`
`that you've made quite a production earlier today
`
`about why in the world would anyone purchase a
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 15
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`trademark if they don't sell those products. And
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`really, we need to find out if,
`
`indeed, you might be
`
`able to shed some light on that by virtue of the fact
`
`that Armor Deck may,
`
`in fact, be purchasing trademark
`
`search terms for products that they do not sell.
`
`So the question is, first, does Armor Deck
`
`purchase competitive search terms?
`
`A.
`
`I'd be glad to provide that information
`
`so long as it's used for the purposes of this matter
`
`and not as a negative PR campaign by Adrian Jayne at
`
`BackRack,
`
`Inc.
`
`Q.
`
`Okay. This is not something that really
`
`is at issue here, because I believe you testified
`
`earlier that if one were to purchase —— if a company
`
`purchases an ad word, regardless of what that ad word
`
`is,
`
`that company would show up as a sponsored link.
`
`Is that correct?
`
`A.
`
`Whatever company that it was purchased
`
`for or whatever the name of that Internet retailer is
`
`would show up.
`
`Q.
`
`Now, Armor Deck ~— does Armor Deck sell
`
`products through the Internet?
`
`A.
`
`Q.
`
`A.
`
`I'm in the same territory.
`
`Armor Deck has a website, does it not?
`
`Yes, it does.
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 16
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`Q.
`
`Does Armor Deck provide access for
`
`consumers to make purchases of the products offered
`
`for sale on the Armor Deck website?
`
`A.
`
`Q.
`
`In a roundabout way.
`
`So Armor Deck does not directly sell
`
`products through the Internet.
`
`Is that correct?
`
`A.
`
`Q.
`
`Not on the Armor Deck website.
`
`Okay.
`
`And how does Armor Deck sell
`
`products through the Internet?
`
`A.
`
`O.
`
`A.
`
`I'm in the same position.
`
`Okay.
`
`I'm not going to --
`
`MR. ADAMS:
`
`He can't answer the
`
`question.
`
`A.
`
`I'm not going to put this on record --
`
`MR. ADAMS: Yeah.
`
`A.
`
`—- where I am in a position where I
`
`could be hurt by Adrian Jayne.
`
`THE WITNESS:
`
`Can you go off the record
`
`for a second?
`
`the record.
`
`MR. LOVENSHEIMER:
`
`Sure.
`
`Can we go off
`
`(Discussion off the record.)
`
`MR. LOVENSHEIMER: Okay.
`
`Can we go back
`
`on the record.
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 17
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`Can you repeat the last question,
`
`please?
`
`(The record is read by the reporter.)
`
`Q.
`
`Okay.
`
`So it's your —— you're
`
`maintaining that you cannot answer that question
`
`unless we go back under attorneys’
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`eyes only.
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`Is
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`that accurate?
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`A.
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`Yes.
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`MR. LOVENSHEIMER: Okay. We will agree
`
`then to go back under attorneys’ eyes only from this
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`point on until we state that we're officially off of
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`Steve Setteducati — cross - Mr. Lovensheimer
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`Page 20
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`(This concludes the portion of the
`
`transcript designated confidential.)
`
`Q.
`
`Okay, Mr. Setteducati. Outside of your
`
`role with regard to the Armor Deck website and the
`
`limited role that you now have in sales and
`
`marketing, do you have any other roles or duties with
`
`Armor Deck?
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`And what are those?
`
`Typical duties of a president/CEO who is
`
`active in the company.
`
`Q.
`
`And do you maintain an office in the
`
`Armor Deck headquarters?
`
`A.
`
`Q.
`
`Yes.
`
`What about STK, what are your primary
`
`duties with STK?
`
`A.
`
`Advisory to a managing partner, Kent
`
`Buckingham.
`
`Q.
`
`And do you maintain an office there as
`
`well?
`
`A.
`
`Q.
`
`No.
`
`Between 1994 and 2007, Armor Deck was a
`
`distributor for BackRack.
`
`Is that correct?
`
`A.
`
`Q.
`
`That is correct.
`
`And during that time, Armor Deck
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 21
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`distributed BackRack products throughout the
`
`northeast.
`
`Is that accurate?
`
`A.
`
`Primarily throughout
`
`the northeast, but
`
`not limited to.
`
`Q.
`
`Okay. And with regard to the catalogs
`
`that we've gone through earlier today and now through
`
`the ones that we just identified,
`
`I believe you
`
`testified that the ones that you referred to as the
`
`generic catalogs,
`
`the Version that doesn't have the
`
`Armor Deck heading on it, those were essentially
`
`limited to the Armor Deck thirteen—state region.
`
`Is
`
`that correct?
`
`A.
`
`Q.
`
`Yes.
`
`And those that are marked with Armor
`
`Deck on the heading,
`
`those were sent outside of the
`
`thirteen—state region.
`
`Is that correct?
`
`A.
`
`Q.
`
`More so than the generic.
`
`Okay. And do you have any indication as
`
`to what volume of these catalogs were shipped outside
`
`of the thirteen—state region?
`
`A.
`
`Q.
`
`I honestly don't know.
`
`Do you know that it has been increasing
`
`since the first catalog in 1994?
`
`A.
`
`Q.
`
`I Yes.
`
`Do you have any idea with the most
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 22
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`recent catalog what
`
`the extent of distribution was?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`I think it was 25,000.
`
`25,000 total?
`
`I
`
`think.
`
`And --
`
`I don't have that at my fingertips.
`
`I
`
`think it was 25,000.
`
`Q.
`
`And of that 25,000, how many of those
`
`were outside of the thirteen—state region?
`
`A.
`
`I have no idea. More so now than it was
`
`in the past, and every year it would grow.
`
`Q.
`
`And is it 10 percent,
`
`15 percent, could
`
`you estimate the percentage?
`
`A.
`
`I would guess, it would purely be a
`
`guess,
`
`somewhere between 5 and 10 percent.
`
`Q.
`
`So it's a relatively small portion of
`
`the --
`
`A.
`
`Q.
`
`Yes.
`
`-— 25,000.
`
`Is Armor Deck primarily still a regional
`
`entity,
`
`the thirteen—state region?
`
`A.
`
`As far as next—day service through our
`
`trucks or via our own trucks, yes. However, our
`
`business has grown, you know, beyond those thirteen
`
`states that we UPS to, and we send product via common
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 23
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`carrier.
`
`Q.
`
`And of the product that you ship outside
`
`of the thirteen—state region, do you have a feel
`
`for —— an understanding of about what percentage of
`
`the business that represents?
`
`A.
`
`Q.
`
`I have no idea.
`
`Once again I'll ask,
`
`is it 5 percent,
`
`10 percent, 20 percent?
`
`MR. ADAMS:
`
`If you don't know, tell him
`
`you don't know.
`
`A.
`
`Q.
`
`I don't know.
`
`Now,
`
`in 2007, you indicated that you
`
`learned that use of a trademark as a noun is an
`
`improper use.
`
`Is that correct?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`That's correct.
`
`That was late 2007. Right?
`
`That's correct.
`
`And that's based on your conversation
`
`with Mr. Adams.
`
`Is that accurate?
`
`A.
`
`Q.
`
`That's correct.
`
`Do you recall approximately when you had
`
`this conversation with Mr. Adams?
`
`A.
`
`Q.
`
`I would guess in December of 2007.
`
`Okay.
`
`Now, prior to that conversation
`
`with Mr. Adams, had you had any contact with
`
`
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 24
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`Yes.
`
`And when did you first have contact with
`
`Mr. Adams?
`
`A.
`
`Q.
`
`Mr. Adams?
`
`A.
`
`I would guess in 2002 or 2001. That
`
`would be a
`
`pure guess.
`
`Q.
`
`And what was the purpose of that
`
`contact?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A patent infringement lawsuit.
`
`And was —— did that involve Armor Deck?
`
`No, STK.
`
`Okay. And did Mr. Adams represent STK
`
`in this patent infringement
`
`lawsuit?
`
`A.
`
`Q.
`
`action?-
`
`Yes.
`
`And who was the plaintiff in that
`
`Penda Corporation.
`
`Excuse me?
`
`Penda Corporation, P—E-N—D-A.
`
`MR. ADAMS:
`
`I don't believe he indicated
`
`who the plaintiff was.
`
`I don't really believe there
`
`was a plaintiff.
`
`MR. LOVENSHEIMER:
`
`I'm sorry, could you
`
`repeat that?
`
`MR. ADAMS: Did he indicate that he was
`
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 25
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`a defendant?
`
`MR. LOVENSHEIMER: No.
`
`I asked who was
`
`the plaintiff.
`
`MR. ADAMS: Yes.
`
`MR. LOVENSHEIMER:
`
`And that could very
`
`well have been STK.
`
`MR. ADAMS:
`
`Would you repeat the
`
`question?
`
`(The record is read by the reporter.)
`
`Q.
`
`And once again,
`
`that plaintiff could
`
`have been STK, could it have not?
`
`A.
`
`Q.
`
`It could have been.
`
`However, it was not.
`
`It was Penda
`
`Corporation.
`
`Correct?
`
`A.
`
`Q.
`
`That's correct.
`
`Outside —— after that representation by
`
`Mr. Adams, did you have any other contact with
`
`Mr. Adams prior to the 2007 meeting?
`
`A.
`
`Q.
`
`Yes.
`
`And during that time period from your
`
`first contact with Mr. Adams through the 2007 contact
`
`that you had with him in December,
`
`had Mr. Adams been
`
`the outside counsel for STK?
`
`A.
`
`A general outside counsel,
`
`no.
`
`For STK
`
`the only thing he did was represent us in that —— I
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 26
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`believe the only thing he did that I can recall is
`
`represent us in the Penda litigation.
`
`Q.
`
`Okay. And now, with regard to Armor
`
`Deck, did he represent Armor Deck during that time
`
`period?
`
`A.
`
`Q.
`
`No.
`
`Between the Penda patent infringement
`
`lawsuit and the contact in December of 2007, did you
`
`have any other contact with Mr. Adams?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes.
`
`And what was the nature of that contact?
`
`Nexstream.
`
`And Nexstream is your Internet —- or
`
`your intellectual property venture.
`
`Is that correct?
`
`A.
`
`Q.
`
`That's correct.
`
`And prior to 2007, did Mr. Adams provide
`
`any counseling to you regarding proper use of
`
`trademarks in Armor Deck's catalogs?
`
`A.
`
`Q.
`
`No.
`
`Did he provide any counsel
`
`to you
`
`regarding proper trademark usage on the Armor Deck
`
`website?
`
`A.
`
`Q.
`
`No.
`
`So prior to 2007, you had no reason to
`
`believe that Armor Deck was improperly using any
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 27
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`trademarks in their catalogs.
`
`Is that accurate?
`
`A.
`
`Q.
`
`That's correct.
`
`In December of 2007, you learned that
`
`that use of a trademark as a noun constitutes
`
`improper trademark use.
`
`Is that correct?
`
`A.
`
`Again, believing it was December of
`
`2007, yes.
`
`Q.
`
`A.
`
`Okay.
`
`It may have been November of 2007.
`
`I
`
`don't recall exactly when.
`
`Q.
`
`Okay. And now, when —— when did your ~-
`
`when did Armor Deck's relationship with BackRack
`
`cease in 2007?
`
`A.
`
`I'm not sure how to quantify that in
`
`that the relationship deteriorated in perhaps as
`
`early as September right on through October and into
`
`November.
`
`Q.
`
`So roughly between September and
`
`November of 2007,
`
`the relationship between Armor Deck
`
`and BackRack deteriorated and eventually in -—
`
`roughly by the end of November had ceased.
`
`Is that
`
`correct?
`
`A.
`
`Q.
`
`Yes,
`
`for the most part.
`
`Okay. And is —- what precipitated you
`
`to contact Mr. Adams concerning Armor Deck's use of
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 28
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`trademarks in Armor Deck catalogs?
`
`A.
`
`I do not recall exactly what
`
`precipitated it.
`
`It might have been just nonchalant
`
`conversation about what we were going into. And I
`
`think —— I'm certain that what spurred my education
`
`onto improper use of trademark was me sending John
`
`Adams a brochure that we made for the new Pro Rack.
`
`It may have been just as simple as take a look at our
`
`new product line. Certainly nothing was planned,
`
`nothing was —— I didn't even think we needed anyone
`
`to —— I didn't think we needed anyone as a trademark
`
`counsel.
`
`I did speak with him,
`
`I'm remembering now as
`
`I'm speaking to you, about
`
`the patent on the
`
`BackRack,
`
`that it was expired, but that information
`
`was mainly provided to me by my partner, Scott
`
`Muirhead.
`
`Q.
`
`And you just indicated that you had
`
`spoken to Mr. Adams concerning the BackRack patent.
`
`Did that occur after the deterioration of the
`
`relationship between Armor Deck and BackRack?
`
`A.
`
`Q.
`
`I don't recall.
`
`Just so we're clear, your testimony is
`
`that your first contact with Mr. Adams in 2007 was
`
`maybe as early as November 2007 but probably in
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 29
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`December 2007.
`
`Is that accurate?
`
`A.
`
`Q.
`
`With regard to the trademark issue.
`
`Okay. And prior to that, when was your
`
`prior —— previous contact with Mr. Adams?
`
`MR. ADAMS:
`
`I
`
`think he's already
`
`testified to that, sir.
`
`Q.
`
`So with regard to anything BackRack
`
`related.
`
`A.
`
`I don't recall.
`
`I speak with Mr. Adams
`
`on a regular basis regarding Nexstream business.
`
`As
`
`far as it pertains to BackRack on a non—trademark
`
`issue,
`
`I really don't recall.
`
`Q.
`
`Okay.
`
`And did BackRack file a lawsuit
`
`against Armor Deck?
`
`A.
`
`Q.
`
`Yes.
`
`Do you remember what
`
`the claim was that
`
`BackRack raised in that case?
`
`A.
`
`They were owed some monies, and it was
`
`regarding nonpayment of an invoice —— invoices.
`
`Q.
`
`Do you remember when that case was
`
`filed?
`
`A.
`
`Q.
`
`strike that.
`
`No.
`
`Was it before Armor Deck —- or sorry,
`
`Was it before STK filed the cancellation
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`Steve Setteducati - cross - Mr. Lovensheimer
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`Page 30
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`proceedings that we're here for today?
`
`A.
`
`I don't recall.
`
`I don't even recall
`
`when we filed for these proceedings, and I don't
`
`recall when the —— when the BackRack litigation that
`
`you just referenced that was filed against us was
`
`initiated.
`
`I would imagine it was sometime in
`
`December or January or February.
`
`I'm guessing.
`
`Q.
`
`How much did Armor Deck owe BackRack
`
`according to BackRack's claims in the lawsuit
`
`they
`
`filed against Armor Deck?
`
`A.
`
`Somewhere in the neighborhood of
`
`$170,000.
`
`Q.
`
`A.
`
`Q.
`
`And is that case ongoing?
`
`It's been settled.
`
`It's been settled. And why did STK file
`
`the cancellation proceeding against BackRack?
`
`A.
`
`Because we made a competing product, and
`
`we believe that that is a generic name in light of my
`
`education as to trademarks.
`
`Q.
`
`I'm sorry, were you finished with that
`
`answer?
`
`A.
`
`Q.
`
`then.
`
`Yes.
`
`Okay. Let's unpack that for a second
`
`What does that mean, unpack?
`A.
`
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`Page 31
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`Q.
`
`There was a lot that we need to go
`
`through in that statement.
`
`A.
`
`Q.
`
`Oh.
`
`So STK makes a competing product
`
`to
`
`BackRack. That's accurate?
`
`A.
`
`STK makes a competing product
`
`to
`
`BackRack,
`
`that is correct.
`
`Q.
`
`Okay.
`
`The product that -- we'll just
`
`show you actually. Let's go to Exhibit 63.
`
`Probably
`
`these are the better pictures.
`
`Just take a look at
`
`the last page of Exhibit 63. Why don't you start at
`
`the top.
`
`In this first picture, we see what Howard
`
`Lichtman earlier today testified to as a mesh style
`
`headache rack or cab guard. And is this a BackRack
`
`product that's depicted here?
`
`A.
`
`Q.
`
`It looks like it.
`
`Okay. And this mesh style headache rack
`
`or cab guard that appears in the BackRack product
`
`guide that's marked as Exhibit 63, does STK make a
`
`product that is similar to that product?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`"Yes, we do.
`
`And what is that product called?
`
`Pro Guard.
`
`Okay. And when did STK first introduce
`
`the Pro Guard?
`
`10
`
`11
`
`12
`
`13
`
`14
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`24
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`25
`
`800-227-8440
`
`973-410-4040
`
`Veritext/NJ Reporting Company
`
`
`
`Steve Setteducati - cross - Mr. Lovensheimer
`
`. 1
`
`A.
`
`December of '08 or January of
`
`'09 —— I'm
`
`Page 32
`
`2
`
`3
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`4
`
`5
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`6
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`7
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`8
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`9
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`10
`
`11
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`sorry, December of '07 or January of '08,
`
`I believe.
`
`I can't be sure.
`
`Q.
`
`A.
`
`Okay.
`
`But it was after the -- basically after
`
`the termination of our relationship or after —- it
`
`was sometime in very late 2007.
`
`I don't know when we
`
`formally introduced the Pro Guard.
`
`Q.
`
`Okay.
`
`Now, if you look at the picture
`
`below that,
`
`that was a style that was testified to by
`
`Mr. Lichtman earlier today as a rack style headache
`
`12
`. 13
`
`rack or cab guard. And is that product a BackRack
`brand --
`
`14
`
`15
`
`16
`
`17
`
`18
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`19
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`20
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`21
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`22
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`23
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Yes.
`
`—— headache rack?
`
`Yes.
`
`Okay.
`
`I believe so.
`
`Q._
`
`Okay. And —— well, you've testified
`
`earlier that you sold them for thirteen years,
`
`so
`
`surely you recognize them as a BackRack headache
`
`rack/cab guard.
`
`So --
`
`A.
`
`But I'm 99.9 percent sure.
`
`As sure as I
`
`24
`. 25
`
`was when I saw something for sale for 3.99 and I had
`a buy box right next
`to it.
`
`800-227-8440
`
`973-410-4040
`
`Vefitext/NJ Reporting Company
`
`
`
`Steve Setteducati - cross - Mr. Lovensheimer
`
`Page 33
`
`Q.
`didn't want
`
`Except that it was actually 39.95 but
`to correct you.
`
`I
`
`A.
`
`Q.
`
`A.
`
`Okay.
`
`So actually then ——
`
`But you can never be sure of anything I
`
`learned earlier today.
`
`Q.
`
`Right.
`
`So then the question is,
`
`then
`
`does STK offer a product that's similar to the
`
`BackRack headache rack that's depicted in the second
`
`picture?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`A.
`
`Yes,
`
`they do.
`
`And what is that product called?
`
`Pro Rack.
`
`And when was the Pro Rack introduced?
`
`There was a prototype of the Pro Rack
`
`that was displayed at the 2007 SEMA show in the
`
`beginning of November 2007.
`
`Q.
`
`Okay. And that was the SEMA show in --
`
`was that in Las Vegas?
`
`A.
`
`Q.
`
`That's correct.
`
`Do you know if Adrian Jayne from
`
`BackRack saw that prototype?
`
`A.
`
`Q.
`
`I'm sure he did.
`
`Did he ever speak to you about
`
`the
`
`10
`
`ll
`
`12
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`13
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`25
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`display of that prototype by STK at the SEMA show in
`
`800-227-8440
`
`973-410-4040
`
`Veritext/NJ Reporting Company
`
`
`
`Steve Setteducati - cross - Mr. Lovensheimer
`
`Page 34
`
`2007?
`
`A.
`
`Q.
`
`A.
`
`Q.
`
`Yes.
`
`Was he upset with you?
`
`Very.
`
`And what was your reaction to his being
`
`upset?
`
`down.
`
`down?
`
`A.
`
`My reaction was to try and calm him
`
`Q.
`
`Okay. And how did you try and calm him
`
`A.
`
`Q.
`
`By asking him to calm down.
`
`Okay. And did STK continue in the
`
`development of the prototype?
`
`A.
`
`Q.
`
`Yes, we did.
`
`And ultimately it was introduced by STK
`
`in December of 2007.
`
`Is that about
`
`the same time
`
`frame as the Pro Guard?
`
`A.
`
`I don't recall if we introduced them
`
`both together, and I'm not certain by introduced what
`
`we're talking about. There was a couple of
`
`applications ready,
`
`I believe,
`
`in late December of
`
`2007,
`
`if my memory serves me correct.
`
`Q.
`
`A.
`
`And by application, what do you mean?
`
`By applications,
`
`fitments on certain
`
`for instance, has —— BackRack,
`vehicles. BackRack,
`m
`
`800-227-8440
`
`973-410-4040
`
`Veritext/NJ Reporting Company
`
`10
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`25
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`
`
`Steve Setteducati - cross - Mr. Lovensheimer
`
`
`Page 35
`
`Inc.,
`
`for their BackRack, has a different application
`
`for each truck out there, an older Ford,
`
`a newer
`
`Ford,
`
`a Ford Super Duty.
`
`Each one is an application.
`
`Q.
`
`Okay.
`
`So each application,
`
`for example,
`
`for the BackRack headache rack is tailored to fit
`
`specific truck models.
`
`Is that correct?
`
`A.
`
`Q.
`
`That is correct.
`
`And STK's Pro Rack is also similarly
`
`tailored to fit certain trucks.
`
`Is that accurate as
`
`well?
`
`A.
`
`Q.
`
`That's correct.
`
`And so by applications, you mean that
`
`the first versions of the Pro Rack were ready in
`
`2007.
`
`Is that accurate?
`
`A.
`
`I believe -— again,
`
`I can't swear to
`
`this definitively, but
`
`I believe by late December, we
`
`had a couple of applications for Pro Rack. That's
`
`the way I
`
`remember it.
`
`I could be wrong, but that's
`
`what
`
`I believe.
`
`Q.
`
`Okay.
`
`So it's f
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