BULKY DOCUMENTS
`
`(Exceeds 100 pages)
`
`Filed:
`
`11 15 2010
`
`Title: REGISTRANT’S NOTICE OF RELIANCE AND %
`
`EXHIBITS.
`
`Part
`
`3of
`
`4
`
`
`
`

`
`Page 69
`Judge: Company's complaint against state police stands Times—News (Twin Falls, Idaho) September 17, 2009 Thursday
`
`The judge wants more information from state police. "The court directs that ISP present a more complete record
`concerning ISP's decision to impose a lifetime ban and argument (for) why the inferences that A-1 contends should be
`drawn from the undisputed facts are appropriate," Stoker wrote in his ruling Wednesday. "A-l may pursue its claim for
`damages relating to the ‘lifetime ban."‘
`
`This week state police were successful in getting at least some of Legg's lawsuit dismissed by Stoker. The judge
`turned down A—1‘s requests to be reinstated to the list, along with another claim from A-1 detailing alleged preferential
`. towing by state police.
`
`State police imposed an illegal penalty on A-1 and were unreasonable, according to the lawsuit. "A lifetime ban
`from the ISP Region IV wrecker rotation list is unreasonable, unduly harsh, and imposes an illegal penalty upon A-1
`Auto." The conduct of state police was "for the ulterior and improper purpose of causing financial hardship," according
`to the lawsuit.
`
`Legg said he tried to get back on the list, but state police wouldn't allow it.
`
`According to A-1, state police think the company stole a headache rack from a towed vehicle. The company,
`however, says the truck accessory in question was presumed abandoned, and never resulted in charges. "Despite
`numerous requests by Mr. Legg for reinstatement to the ISP Region IV rotation list, said requests have been continually
`denied on the basis that A-1 Auto committed theft by using the headache rack for its own purposes," the lawsuit reads.
`
`Meanwhile, state police are also fighting another similar lawsuit.
`
`The owner of Dick's Pharmacy in Twin Falls, Daniel Fuchs, sued state police on Aug. 19, claiming the agency
`overstepped its authority and violated due process in pulling him from waiting lists for state liquor licenses. State police
`also want that case dismissed and assert Fuchs has not exhausted all administrative remedies.
`
`Court dates aren't set in the cases.
`
`To see more of The Times-News, or to subscribe to the newspaper, go to http://www.magicvalley.com Copyright
`(c) 2009, The Times-News, Twin Falls, Idaho Distributed by McClatchy-Tribune Information Services. For reprints,
`email tmsreprints@pennissionsgroup.com, call 800-374-7985 or 847-635-6550, send a fax to 847—635—6968, or write to
`The Permissions Group Inc., 1247 Milwaukee Ave., Suite 303, Glenview, IL 60025, USA.
`
`LOAD-DATE: September 17, 2009
`
`

`
`TTAB — STK, LLC v. BACKRACK, INC.
`Cancellation No. 92049332 — Registration No. 3014986
`
`EXHIBIT C35
`
`

`
`Page 70
`
`@
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`
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`as
`‘-9
`Lexis iexis
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`FOCUS - 22 of 25 DOCUMENTS
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`Copyright 2009 The Birmingham News
`All Rights Reserved
`Birmingham News (Alabama)
`
`September 16, 2009 Wednesday
`
`SECTION: COMMUNITY NEWS; Pg. 4N Vol. 122 No. 187
`
`LENGTH: 1041 words
`
`HEADLINE: F.Y.I., FOR YOUR INFORMATION, NORTH
`
`BODY:
`
`POLICE BLOTTER
`
`Information on Northern area police activity comes from police and sheriffs reports on felony incidents. The
`incidents often remain under investigation. Details of the incidents and possible charges may change before final
`disposition.’ Today's crime listing includes reports filed Sept. 3-10.
`
`NORTH BIRMINGHAM
`
`Auto burglary
`
`Vanderbilt Road, 1600 block, commercial, Sept. 2-3, 9 p.m.-5:42 a.m., 28 cases of soda taken. Graymont Avenue,
`200 block, residential, Sept. 3-4, 10 p.m.-8 a.m., window damaged. Second Avenue North, 400 block, residential, Sept.
`5, 1:15-1:30 a.m., window damaged. Richard Arrington Jr. Boulevard, 10 block, residential, Sept. 5, 12:01-2:35 a.m.,
`radio taken; window damaged. Richard Arrington Jr. Boulevard, 10 block, residential, Sept. 5, 12331-1 :30 a.m., credit
`card taken. Fourth Terrace West, 700 block, residential, Sept. 5-6, 5:30 p.m.-8 a.m., radio taken; window damaged.
`Second Avenue North, 400 block, residential, Sept. 7, 11:45 a.m., books taken. 31st Avenue North, 2700 block,
`residential, Sept. 7-8, 7 p.m.-8 a.m., window and steering column damaged. 31st Avenue North, 2700 block, residential,
`Sept. 7-8, 2 p.m.-8 a.m., window and steering column damaged. Fourth Street North, 200 block, residential, Sept. 8, ll
`p.m.-3:15 a.m., radio and GPS taken.
`
`Burglary
`
`15th Terrace North, 400 block, residential, Aug. 1-Sept. 4, a/c unit taken. 15th Court West, 200 block, residential,
`Aug. 31, 5-7 a.m., air nail gun and screw driver taken. 10th Court North, 500 block, residential, Sept. 3-4, 6:30
`p.m.-2:45 p.m., TV and microwave taken. 27th Avenue North, 2200 block, residential, Sept. 4-8, battery charger, tools,
`printer and batter checker taken. Second Avenue North, 2200 block, residential, Sept. 5, 2:45 a.m., laptop and mouse
`taken. 16th Avenue North, 200 block, residential, Sept. 6, 9 a.m.—1 : 15 p.m., gun taken. Eighth Avenue West, 700 block,
`residential, Sept. 7, 3-4:45 p.m., two TVs and disc player taken.
`
`

`
`Page 71
`_
`F .Y.I., FOR YOUR INFORMATION, NORTH Birmingham News (Alabama) September 16, 2009 Wednesday
`
`Firearm offenses
`
`Eighth Avenue North, 10 block, residential, Sept. 2, 7:20 a.m., van window damaged by gun fire. John T. Eagan
`Drive, 1100 block, residential, Sept. 6, 2: 10 a.m., window damaged by gun fire; four tires slashed. John T. Eagan Drive,
`1100 block, residential, Sept. 6, 2:10 a.m., window damaged by gun fire; four tires slashed.
`
`Property thefi
`
`Sixth Avenue West, 700 block, residential, Sept. 4, 3:30 a.m., cash taken. 27th Avenue North, 2600 block,
`commercial, Sept. 4-5, 5:30 p.m.-6:30 a.m., nine transmissions taken.
`
`Robbery
`
`29th Court North, 1300 block, residential, Sept. 8, 1:30 p.m., clothing and shoes taken.
`
`FULTONDALE
`
`Property thefi
`
`Decatur Highway, 600 block, Sept. 3, time unknown, parking lot, electronics taken. Decatur Highway, 1200 block,
`Sept. 1-2, commercial, debit card taken. Hickory Lane, 1800 block, Aug. 29—Sept. 2, garage, tools taken.
`
`Rape
`
`Location unknown, reported Sept. 4, residence, a woman reported she was raped July 24-25.
`
`Hit and run
`
`Walker Chapel Road and Ellard Road, Sept. 2, 2:42 p.m., highway, a hit and run reported.
`
`GARDENDALE
`
`Property thefi
`
`Odum Road, 800 block, Sept. 4, 1:45-2:05 p.m., parking lot, six Auburn football season ticket packets taken from a
`vehicle, valued at $2,370. Holly Lane, 4800 block, Sept. 4-5, residence, credit cards and currency taken from vehicle.
`Kennedy Road, 500 block, Sept. 4-5, residence, camera taken from vehicle. Kennedy Road, 500 block, Sept. 4-6,
`residence, computer and other items taken from vehicle. Kennedy Road, 500 block, Sept. 4-6, residence, navigation
`system and tools taken from vehicle. Avon Circle, 300 block, Sept. 5-6, residence, currency taken. Fieldstown Road,
`1200 block, Sept. 5, 6:30-8:30 p.m., residence, a dog, electronics and other items taken. Ozell Lane, 5700 block, Sept. 3,
`1-7 p.m., residence, computer and other electronics taken.
`
`Forgery
`
`Decatur Highway, 1000 block, Sept. 7, 1-1 :25 p.m., business, counterfeit $20 bill reported.
`
`Attempted assault
`
`Main Street, 1000 block, Sept. 5, 2:04-2:06 p.m., highway, attempted assault reported.
`
`Drugs
`
`Kennedy Road, 500 block, Sept. 5, 3: 1 5-4 a.m., highway, unlawful possession of a controlled substance reported.
`
`

`
`Page 72
`F.Y.I., FOR YOUR INFORMATION, NORTH Birmingham News (Alabama) September 16, 2009 Wednesday
`
`Identity theft
`
`Belcher Hill Road, 200 block, Sept. 4, 11:30 a.m., residence, several transactions reported.
`
`Terrorist threat
`
`Willow Bend Drive, 4400 block, Sept. 3, 2:13-2:34 p.m., residence, a woman reported threat.
`
`NORTH JEFFERSON COUNTY
`
`Auto burglary
`
`Comer School Road, 10000 block, school, Sept. 4, 4-6 p.m., assorted CDs taken, rearview mirror, driver's side door
`and vehicle headliner damaged.
`
`Burglary
`
`Sutherland Road, 5100 block, residential, August 28-Sept. 3, weed trimmer, chain saw, backpack leaf blower, drill,
`grinder, saw and set of hoist with chains taken. Dana Drive, residential, August 31, 5-9 p.m., prescription and video
`game system taken. Brownlee Street, 1600 block, residential, Sept. 2, 7:30 a.m.-3:10 p.m., window pane taken. Swann
`Road, 6300 block, residential, Sept. 2-3, 7 p.m.-9 a.m., drill, saw, hedge trimmer and tool box with various tools taken.
`Candy Mountain Road, 500 block, residential, Sept. 3, 7:30 a.m.-1 p.m., video game system, video games, laptop and
`TV taken.
`
`Criminal mischief
`
`Glennwood Road, 1900 block, residential, Sept. 2-3, 2:30 p.m.-unknown, headache rack of logger truck, car
`battery and copper wiring from trailers taken.
`
`Property thefi
`
`Paradise Valley Road, unknown, residential, August 27, 1:30 p.m., details unknown. Grace Road, 1900 block,
`residential, Sept. 2-4, drill, refrigerator taken; electric stove drawer damaged. Waterworks Road, 6400 block,
`residential, Sept. 2, 7:30 -10:30 p.m., mower, drill, saws, weed trimmer, hedge trimmer, step ladder and assorted paint
`supplies taken.
`
`TARRANT
`
`Auto burglary
`
`Bristol Street, 1100 block, residential, Sept. 6, 3-9 a.m., radio/CD player and CD5 taken; vehicle window damaged.
`Bristol Street, 1100 block, residential, Sept. 6, 1 1 p.m.-7:30 a.m., radio/CD player taken; a/c unit damaged. East Lake
`Boulevard, 1200 block, residential, Sept. 7, 4-8 p.m., tire and wheel taken. Birmingham Street, 1000 block, residential,
`Sept. 7, 5-10:30 p.m., gun and ammunition taken; vehicle window damaged.
`
`Burglary
`
`Hoke Avenue, 1800 block, residential, Sept. 7, 9 a.m., check taken.
`
`Forgery
`
`Forrest Street, 1200 block, residential, August 28, 10 a.m., check taken.
`
`LOAD-DATE: September 16, 2009
`
`

`
`TTAB — STK, LLC v. BACKRACK, INC.
`Cancellation No. 92049332 — Registration No. 3014986
`
`EXHIBIT C36
`
`

`
`Page 73
`
`
`lexisl
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`FOCUS - 23 of 25 DOCUMENTS
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`Copyright 2009 HT Media Ltd.
`All Rights Reserved
`US Fed News
`
`September 5, 2009 Saturday 10:52 AM EST
`
`LENGTH: 210 words
`
`HEADLINE: Patent No. 7,581,756 Issued on Sept. 1 for Universal Cab Guard (Canadian Inventor)
`
`DATELINE: ALEXANDRIA, Va.
`
`BODY:
`
`ALEXANDRIA, Va., Sept. 5 -- Leslie Cole, New Brunswick, Canada, has developed a universal cab guard. The
`inventor was issued U.S. Patent No. 7,581,756 on Sept. 1.
`
`According to the abstract released by the U.S. Patent & Trademark Office: "The cab guard for a pickup truck has a
`horizontal base member made of square hollow structural steel; an upright structure extending upward from the
`horizontal base member, and two anchor brackets for attachment to sides of a pickup truck box. Each of the anchor
`brackets has a stem made of square hollow structural steel and an anchor plate extending at right angle from the stem.
`Each stem is telescopically engaged in one end of the horizontal base member. The cab guard also comprises a pair of
`J—shaped hooks extending through the anchor plates for attachment to the stake pockets of a pickup truck box, for
`retaining the anchor plates to the sides of the pickup truck box. The universal cab guard is mountable to the front stake
`pockets of a pickup truck box and is adjustable to match the width between the stake pockets."
`
`The original application was filed on July 27, 2006. For more information about US Fed News contract awards
`please contact: Sarabjit Jagirdar, US Fed News, Email:— htsyndication@hindustantimes.com
`»
`
`LOAD-DATE: September 18, 2009
`
`

`
`TTAB — STK, LLC v. BACKRACK, INC.
`Cancellation No. 92049332 — Registration No. 3014986
`
`EXHIBIT C37
`
`

`
`Page 74
`
`
`
`LrexisNé,exis®
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`FOCUS - 24 of 25 DOCUMENTS
`
`Copyright 2009 HT Media Ltd.
`All Rights Reserved
`US Fed News
`
`August 31, 2009 Monday 2:32 PM EST
`
`LENGTH: 217 words
`
`HEADLINE: USPTO Issues Trademark N NATIONAL UTILITY EQUIPMENT COMPANY, LLC to National
`Utility Equipment for Retail Store Services, Mail-Order Catalog Services
`
`DATELINE: ALEXANDRIA, Va.
`
`BODY:
`
`ALEXANDRIA, Va., Sept. 1 1 -- National Utility Equipment Company, LLC, Saginaw, Ala., has been issued the
`trademark N NATIONAL UTILITY EQUIPMENT COMPANY, LLC Oleg. No 3672357) by the USPTO.
`
`The trademark application (serial number 77659547) was filed on Jan. 29 and was registered on Aug. 25.
`
`The description of the mark registered is "The color(s) blue, black and white is/are claimed as a feature of the mark.
`The mark consists of a capital letter "N" in blue and the words "NATIONAL UTILITY EQUIPMENT COMPANY,
`LLC" in black. The interior lining in the letter "N" is transparent".
`
`The services for which registration was sought is "retail store services, mail-order catalog services and
`computerized on—line retail and ordering services featuring used equipment and tools for the electric utility,
`telecommunications, tree care and contractor industries, namely, trucks, digger derricks, aerial lifls, aerial buckets,
`mechanical and hydraulic winches, hydraulic auger units, diggers and jacks, booms for aerial lifts, single and two-man
`platfonns, outriggers and sub frames, line bodies, dump bodies, cab guards, wire reel racks, hose reels, and utility body
`parts". For more information about US Fed News trademarks please contact: Sarabjit Jagirdar, US Fed News, Email:—
`htsyndication@hindustantimes.com
`
`LOAD—DATE: September 18, 2009
`
`

`
`TTAB — STK, LLC v. BACKRACK, INC.
`Cancellation No. 92049332 — Registration No. 3014986
`
`EXHIBIT C38
`
`

`
`Page 75
`
`
` iexisl‘
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`FOCUS - 25 of 25 DOCUMENTS
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`Copyright 2009 HT Media Ltd.
`All Rights Reserved
`US Fed News
`
`August 12, 2009 Wednesday 4:18 PM EST
`
`LENGTH: 240 words
`
`HEADLINE: Contract Notice: FEMA Seeks Vehicular Equipments (District Of Columbia)
`
`DATELINE: WASHINGTON
`
`BODY:
`
`WASHINGTON, Aug. 12 -- The U.S. Department of Homeland Security's Federal Emergency Management
`Agency under a modified solicitation said it had a requirement for vehicular equipments.
`
`The synopsis said the contractor shall provide the following items/services: "The DHS FEMA Logistics Section
`requires the following items, Meet or Exceed, to the following:
`
`1)LI 001, 50 Ton Lowboy, 1, EA;2)LI 002, Tool Box, 1, EA;3)LI 003, ll‘ Bi-fold hydraulic ramp, 1, EA;4)LI 004,
`Extra D-rings, 4, EA;5)LI 005, Spare Tire/Wheel with Mount, 1, EA;6)LI 006, Ratchets with 4" Straps, 4, EA;7)LI 007,
`8' X 42" Hydraulic Ramps, 1, EA;8)LI 008, Air Ride Suspension per axle, 3, EA;9)LI 009, Strobe lights, 1, EA;10)LI
`010, Lift on 3rd axle (When empty) incudes air ride, 1, EA;1l)LI 011, Led Lights, 1, EA;12)LI 012, Removable 12"
`Outriggers, l, EA;l3)LI 013, Headache Rack 4' X 102", l, EA;14)LI 014, Delivery charge from manufacturer via
`commercial transportation."
`
`The NAICS code for this requirement is 321991 with the size standard of 500 employees. This acquisition is a 100
`percent small business set-aside.
`
`Bids are invited till Aug. 13.
`
`.
`The solicitation (No. W4685 l6Y) was posted on Aug. 11 and is available at:
`https://www.fbo.gov/?s=oppo11unity&mode=form&id=f4d3c2d69dfcbb6613 66b6ce9e62f526&tab=core&_cview=1.For
`more information about US Fed News contract awards please contact: Sarabjit Jagirdar, US Fed News, Email:-
`htsyndication@hindustantimes.com
`
`LOAD-DATE: August 12, 2009
`
`

`
`TTAB — STK, LLC V. BACKRACK, INC. _
`Cancellation No. 92049332 — Registration No. 3014986
`
`EXHIBIT D
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`STK, LLC
`
`Petitioner,
`
`v.
`
`BACKRACK,
`
`INC.
`
`Registrant
`
`Mark:
`
`BACKRACK
`
`Registration No. 3,014,986
`
`(0’.'I(0IIO)I0)|’01|'0)l'0J|’0ICO'.| Cancellation No. 92—O49,332
`
`Filed:
`
`February 24, 2004
`
`Registered: November 15, 2005
`
`
`
`-
`PETITIONER'S ANSWERS TO RESPONDENT’S
`FIRST SET OF INTERROGATORIES AND REQUESTS FOR PRODUCTION OF
`DOCUMENTS ADDRESSED TO PETITIONER
`
`—j—-j—j—
`
`RESPONSES TO INTERROGATORIES
`
`Petitioner STK, LLC (“Petitioner”)
`
`responds and objects to
`
`respondent Backrack,
`
`Inc.’s
`
`(“Respondent”)
`
`interrogatories as
`
`follows:
`
`GENERAL OBJECTIONS
`
`1.
`
`Petitioner objects to Respondent's interrogatories to
`
`the extent
`
`that
`
`they seek information subject
`
`to the attorney —
`
`client privilege and/or work product doctrine.
`
`No information
`
`subject
`
`to such privilege or work product doctrine will be
`
`provided in response to any interrogatory.
`
`2.
`Petitioner objects to the Respondent's interrogatories
`
`to the extent that they purport
`
`to require Petitioner to do more
`
`than is required by the Federal Rules of Civil Procedure and/or
`
`the Trademark Rules of Practice.
`
`

`
`3.
`
`Petitioner objects to Respondent's interrogatories as
`
`overly broad and unduly burdensome,
`
`and as seeking information
`
`that
`
`is neither relevant nor
`
`reasonably calculated to lead to
`
`the discovery of admissible evidence.
`
`4.
`
`Petitioner objects to the Definitions and Instructions
`
`contained in Respondent's
`
`interrogatories
`
`to the extent
`
`that
`
`Rules of Practice.
`
`5.
`
`Petitioner objects
`
`to these interrogatories
`
`to the
`
`cextent
`
`that
`
`they seek information,
`
`documents,
`
`or
`
`responses
`
`relating to matters that are not raised in the pleadings on the
`
`grounds
`
`that
`
`they are not
`
`relevant
`
`to this action and not
`
`reasonably calculated to lead to the discovery of admissible
`
`evidence.
`
`6.
`
`Petitioner objects
`
`to these interrogatories
`
`to the
`
`extent
`
`that
`
`they seek
`
`information or
`
`documents which
`
`are
`
`protected from disclosure under federal law.
`
`7.
`
`Petitioner's responses are based upon information and
`
`writings presently available to and located by Petitioner and
`
`————————4Ax+—aeterneysT———Petitflrnnm7-has—1nnr“compTetedffififi?‘invesEigafion
`
`of
`
`the facts relating to this Cancellation,
`
`its discovery in
`
`these proceedings,
`nor
`its preparation for
`trial.
`All
`the
`information supplied is based only on
`such information and
`
`

`
`documents which
`
`are presently and
`
`specifically known
`
`to
`
`Petitioner.
`
`Therefore, Petitioner's written responses
`
`are
`
`without prejudice to its rights
`
`to supplement or
`
`amend
`
`its
`
`written
`
`responses
`
`and
`
`'to
`
`present
`
`evidence
`
`discovered,
`
`hereinafter at trial.
`
`8.
`
`Petitioner
`
`objects
`
`to
`
`the
`
`“Definitions”
`
`and
`
`“Instructions” contained in this first set of interrogatories to
`
`the extent
`
`that
`
`they seek to expand or modify the breadth and
`
`scope of
`
`the Federal Rules of Civil Procedure or
`
`to seek to
`
`increase Petitioner's duties under those Rules.
`
`9.
`
`By responding to any interrogatory or providing any
`
`information herewith, Petitioner does not waive and expressly
`
`preserves the objections set forth herein. Also, Petitioner does
`
`not concede the relevancy or admissibility of the response.
`
`10. Petitioner incorporates each general objection in its
`
`response to each. individual
`
`interrogatory and Petitioner‘ will
`
`respond
`
`specifically to
`
`the
`
`interrogatories
`
`as Petitioner
`
`understands the terms used therein.
`
`Subject
`
`to the above objections and without waiving such
`
`objections, Petitioner states as follows:
`
`————————£nterrogatory-No:—1
`
`Identify all facts and circumstances relating to the claims made
`
`by Petitioner in Paragraph 55 of
`
`its Petition for Cancellation
`
`

`
`and
`
`identify all
`
`documents
`
`related thereto and
`
`in support
`
`thereof.
`
`ANSWER :
`
`Petitioner further objects to this interrogatory on the grounds
`
`that it is a contention interrogatory. See Fed.R.Civ. 33(a)(2);
`
`Internetad Systems,
`
`LLC V: ESPN,
`
`Inc.,
`
`2004 U.S. Dist. LEXIS
`
`20393 (N.D. Tex. 2004).
`
`The
`
`Internetad Systems court
`
`recognized that Fed.R.Civ.P.
`
`33 and the corresponding Advisory Notes
`
`indicate that a party
`
`need
`
`not
`
`answer
`
`a
`
`contention
`
`interrogatory
`
`“until
`
`after
`
`designated discovery has been completed. or until
`
`a pre-trial
`
`conference or other
`
`later time.”
`
`Id. at *7.
`
`The court also
`
`noted
`
`that
`
`“there
`
`is
`
`considerable
`
`support
`
`for
`
`deferring
`
`contention
`
`interrogatories until» the
`
`end
`
`of
`
`the
`
`discovery
`
`period.” Id. at *8. Accordingly, Petitioner is not required to
`
`answer this interrogatory at this time.
`
`Subject
`
`to and without waiver of
`
`the above general
`
`and
`
`specific objections, Petitioner states that Respondent used the
`
`———————1mnflres—argene
`
`'
`
`'
`
`'
`
`ising ma eria s as evi ence
`
`by Exhibits A—I
`
`to the Petition for Cancellation.
`
`

`
`Respondent continues to use the mark as a generic term in
`
`its advertising materials as evidenced by Exhibits J—S
`
`to the
`
`Petition for Cancellation.
`
`Respondent's
`
`own
`
`installation instructions
`
`for backracks
`
`uses the mark as a generic term as evidenced by Exhibits T-U to
`
`the Petition for Cancellation.
`
`Various third parties also use the mark as a generic term to
`
`describe backracks as evidenced by Exhibits V—AF to the Petition
`
`for Cancellation.
`
`The mark is used by others as a generic term for headache
`
`racks
`
`as
`
`evidenced
`
`by Exhibit
`
`AG
`
`to
`
`the Petition
`
`for
`
`Cancellation.
`
`Pursuant
`
`to Fed.R.Civ.P. 33(d), Petitioner further directs
`
`Respondent
`
`to Document Nos.
`
`1-82
`
`and 92-170
`
`for additional
`
`examples of
`
`improper or generic use "of
`
`the mark BACKRACK by
`
`Respondent or various other third parties.
`
`Petitioner also reserves the right to supplement its answer
`
`as information about
`
`the products, services, advertisements, and
`
`other communications provided. by Respondent becomes available
`
`through discovery.
`
`—-——————fnterrogatory-Not‘?
`
`Identify all facts and circumstances relating to the claims made
`
`by Petitioner in Paragraph 6 of
`
`its Petition for Cancellation
`
`

`
`and
`
`identify all
`
`documents
`
`related thereto and
`
`in support
`
`thereof.
`
`ANSWER:
`
`Petitioner objects to this request on the grounds that it
`
`is overbroad. and that
`
`it would. unduly’ burdensome to respond.
`
`Petitioner further objects to this interrogatory on the grounds
`
`that it is a contention interrogatory. See Fed.R.Civ. 33(a)(2);
`
`Internetad Systems,
`
`LLC‘ v. ESPN;
`
`Inc.,
`
`2004 U.S. Dist. LEXIS
`
`20393 (N.D. Tex. 2004).
`
`The
`
`Internetad Systems court
`
`recognized that Fed.R.Civ.P.
`
`33 and the corresponding Advisory Notes
`
`indicate that a'party
`
`need
`
`not
`
`answer
`
`a
`
`contention
`
`interrogatory
`
`“until
`
`after
`
`designated discovery has been completed or until
`
`a pre—trial
`
`conference or other
`
`later time.”
`
`Id. at *7.
`
`The court also
`
`noted
`
`that
`
`“there
`
`is
`
`considerable
`
`support
`
`for
`
`deferring
`
`contention interrogatories until
`the
`end
`of
`the discovery
`period.” Id. at *8. Accordingly, Petitioner is not required to
`
`answer this interrogatory at this time.
`
`Subject
`
`to and without waiver of
`
`the above general
`
`and
`
`specific objections, Petitioner states that various third parties
`
`also use tH€ mark as
`
`ea generic tenn to describe bacfiracks as
`
`evidenced by Exhibits V—AF to the Petition for Cancellation.
`
`

`
`The mark is used by others as a generic term for headache
`
`racks
`
`as
`
`evidenced
`
`by Exhibit
`
`AG
`
`to
`
`the Petition
`
`for
`
`Cancellation.
`
`Pursuant
`
`to Fed.R.Civ.P. 33(d), Petitioner further directs
`
`Respondent
`
`to Document Nos.
`
`1-82
`
`and 92-170
`
`for additional
`
`examples of
`
`improper or generic use of
`
`the mark BACKRACK1 by
`
`Respondent or various other third parties.
`
`Petitioner also reserves the right to supplement its answer
`
`as information about
`
`the products, services, advertisements, and
`
`other communications provided by Respondent becomes available
`
`through discovery.
`
`Interrogatory Nb. 3
`
`Identify all facts and circumstances relating to the claims made
`
`by Petitioner in Paragraph 7 of
`
`its Petition for Cancellation
`
`and
`
`identify all
`
`documents
`
`related thereto and
`
`in support
`
`thereof.
`
`ANSWER:
`
`Petitioner further objects to this interrogatory on the grounds
`
`"—‘“_‘that‘ft‘is“a‘tonténtion‘infiérrogéfory.‘See Fed.R.Civ. 33Za)(2);
`
`Internetad .Systems,
`
`LLC' v. ESPN,
`
`Inc.,
`
`2004 U.S. Dist. LEXIS
`
`20393 (N.D. Tex. 2004).
`
`

`
`The
`
`Internetad Systems court
`
`recognized that Fed.R.Civ.P.
`
`need
`
`not
`
`answer
`
`a
`
`contention
`
`interrogatory
`
`“until
`
`after
`
`designated discovery has been completed or until
`
`a pre—trial
`
`conference or other
`
`later time.”
`
`Id. at *7.
`
`The court also
`
`noted
`
`that
`
`“there
`
`is
`
`considerable
`
`support
`
`for
`
`deferring
`
`contention interrogatories until
`
`the
`
`end of
`
`the
`
`discovery
`
`period.” Id. at *8. Accordingly, Petitioner is not required to
`
`answer this interrogatory at this time.
`
`Petitioner
`
`further objects
`
`to this
`
`interrogatory on the
`
`grounds
`
`that
`
`it
`
`is premature because much of
`
`the information
`
`relating to Respondent's advertising activities between 1989 and
`
`1994
`
`that
`
`is
`
`in its possession has not been disclosed to.
`
`Petitioner.
`
`Subject
`
`to and without waiver of
`
`the above general
`
`and
`
`specific objections, Petitioner states that Respondent used the
`mark as a generic term in its advertising materials as evidenced
`
`by Exhibits A-I
`
`to the Petition for Cancellation, which suggests
`
`that Petitioner also used the mark in a similar manner from 1989
`
`to 1994.
`
`-————4—-————Petrtioner‘EdEKY1KKfinfiflS?7fifi?7fiZfifiT7fi3‘§fi§pIEfiéht its answer
`
`as information about
`
`the products, services, advertisements, and
`
`other communications provided. by Respondent becomes available
`
`through discovery.
`
`

`
`Interrogatory No. 4
`
`Identify all facts and circumstances relating to the claims made
`
`by Petitioner in Paragraph 17 of
`
`its Petition for Cancellation
`
`and
`
`identify all
`
`documents
`
`related thereto and
`
`in support
`
`thereof.
`
`ANSWER:
`
`Petitioner objects to this request on the grounds that it
`
`is overbroad. and that
`
`it _would. unduly’ burdensome to respond.
`
`Petitioner further objects to this interrogatory on the grounds
`
`that it is a contention interrogatory. See Fed.R.Civ. 33(a)(2);
`
`Internetad Systems,
`
`LLC IL
`
`ESRN,
`
`Inc.,
`
`2004 UQS. Dist. LEXIS
`
`20393 (N.D. Tex. 2004).
`
`The Internetad Systems court
`
`recognized that Fed.R.Civ.P.v
`
`33 and the corresponding Advisory Notes
`
`indicate that a party
`
`need
`
`not
`
`answer
`
`a
`
`contention
`
`interrogatory
`
`“until
`
`after
`
`designated discovery has been completed or until
`
`a ‘pre—trial
`
`conference or other
`
`later time.”
`
`Id. at *7.
`
`The court also
`
`noted
`
`that
`
`“there
`
`is
`
`considerable
`
`support
`
`for
`
`deferring
`
`contention
`
`interrogatories until
`
`the
`
`end
`
`of
`
`the discovery
`
`period.” Id. at *8. Accordingly, Petitioner is not required to
`
`Petitioner
`
`further objects
`
`to.
`
`this
`
`interrogatory on the
`
`grounds
`
`that
`
`it
`
`is premature,
`
`as Petitioner has not had’ an
`
`opportunity to obtain discovery with respect
`
`to Respondent's
`
`

`
`knowledge of generic use of
`
`the
`
`terms
`
`“backrack”
`
`or
`
`“the
`
`backrack" in association with the goods at issue.
`
`Subject
`
`to and without waiver of ‘the above Vgeneral
`
`and
`
`specific objections, Petitioner states that Respondent used the
`
`mark as a generic term in its advertising materials as evidenced
`
`by Exhibits A—I to the Petition for Cancellation.
`
`Respondent continues to use the mark as a generic term in
`
`its advertising materials as evidenced by_Exhibits J-S to the
`
`Petition for Cancellation.
`
`Respondent's
`
`own
`
`installation instructions
`
`for backracks
`
`uses the mark as a generic term as evidenced by Exhibits T-U to
`
`the Petition for Cancellation.
`
`Petitioner also reserves the right to supplement its answer
`
`as information about
`
`the products, services, advertisements, and
`
`other communications provided by Respondent becomes available
`
`through discovery,
`
`Interrogatory Nb. 5
`
`and
`
`identify all
`
`documents
`
`related thereto and
`
`in support
`
`—————*—“thereof.
`
`ANSWER:
`
`Petitioner objects to this request on the grounds that it
`
`is overbroad and that it would ‘unduly’ burdensome to respond.
`
`10
`
`

`
`Petitioner further objects to this interrogatory on the grounds
`
`that it is a contention interrogatory. See Fed.R.Civ. 33(a) (2);
`
`Internetad Systems,
`
`LLC V. ESPN,
`
`Inc.,
`
`2004 U.S. Dist. LEXIS
`
`20393 (N.D. TeX. 2004).
`
`The
`
`Internetad Systems court
`
`recognized that iFed.R.Civ.P.
`
`33 and the corresponding Advisory Notes
`
`indicate that a party
`
`need
`
`not
`
`answer
`
`a
`
`contention
`
`interrogatory
`
`“until
`
`after
`
`designated discovery has been completed or until
`
`a pre-trial
`
`conference or other
`
`later time."
`
`Id. at *7.
`
`The court also
`
`noted
`
`that
`
`“there
`
`is
`
`considerable
`
`support
`
`for
`
`deferring
`
`contention interrogatories until
`
`the
`
`end
`
`of
`
`the discovery
`
`period.” Id. at *8. Accordingly, Petitioner is not required to
`
`answer this interrogatory at this time.
`
`Petitioner
`
`further objects
`
`to this
`
`interrogatory on the
`
`grounds
`
`that
`
`it
`
`is premature,
`
`as Petitioner has not had an
`
`opportunity to obtain discovery with respect
`
`to Respondent's
`
`knowledge of generic use of
`
`the
`
`terms
`
`“backrack”
`
`or
`
`'“the
`
`backrack" in association with the goods at issue.
`
`Petitioner also reserves the right to supplement its answer
`
`as information about
`
`the products, services, advertisements, and
`
` mmRa ions provi e
`
`y
`
`espon en
`
`ecomes avai ab e
`
`through discovery.
`
`11
`
`

`
`Interrogatory No. 6
`
`Identify all facts and circumstances relating to the claims made
`
`by Petitioner in Paragraph 19 of its Petition for Cancellation
`
`and
`
`identify all
`
`documents
`
`related thereto and
`
`in support
`
`thereof.
`
`ANSWER:
`
`Petitioner objects to this request on the grounds that it
`
`is overbroad and that
`
`it would. unduly' burdensome to respond.
`
`Petitioner further objects to this interrogatory on the grounds
`that it is a contention interrogatory. See Fed.R.0iv..33(a)(2);
`
`Internetad Systems,
`
`LLC VA
`
`ESRN,
`
`Inc.,
`
`2004 U.S. Dist. LEXIS
`
`20393 (N.D. Tex. 2004).
`
`The
`
`Internetad Systems court
`
`recognized that Fed.R.Civ.P.
`
`33 and the corresponding Advisory Notes
`
`indicate that a party
`
`need
`
`not
`
`answer
`
`a
`
`contention
`
`interrogatory
`
`“until
`
`after
`
`designated discovery has been completed or until
`
`a pre-trial
`
`conference or other
`
`later time.”
`
`Id. at *7.
`
`The court also
`
`noted
`
`that
`
`“there
`
`is
`
`considerable
`
`support
`
`for
`
`deferring
`
`contention interrogatories until
`
`the
`
`end
`
`of
`
`the discovery
`
`period.” Id. at *8. Accordingly, Petitioner is not required to
`
`"—*‘—*“answer“this*interrogafory aE‘Ehis time.
`
`Petitioner also reserves the right to supplement its answer
`
`as information about
`
`the products, services, advertisements, and
`
`12'
`
`

`
`other communications provided. by Respondent becomes available
`
`through discovery.
`
`Subject
`
`to and without waiver of
`
`the above general
`
`and
`
`specific objections, Petitioner states that Respondent used the
`
`mark as a generic term in its advertising materials as evidenced
`
`by Exhibits A—I
`
`to the Petition for Cancellation. Generic marks
`
`are not eligible for registration at the USPTO, Accordingly, it
`
`is
`
`axiomatic
`
`that
`
`had
`
`the
`
`examining
`
`attorney known
`
`that
`
`Respondent was using the mark at
`
`issue as a generic term,
`
`the
`
`examining attorney would not have allowed Respondent
`
`to register
`
`the mark.
`
`Interrogatory No. 7
`
`Set
`
`forth with particularity the
`
`circumstances
`
`under which
`
`Petitioner
`
`first
`
`learned
`
`of Registrant
`
`and
`
`the
`
`trademark
`
`BACKRACm®,
`
`and identify each person who has knowledge of such
`
`facts.
`
`ANSWER:
`
`Petitioner has been aware of Registrant since 2001.
`
`Steve
`
`Setteducati, an ownerwof'Sette Associates,
`
`Inc. d/b/a Armor Deck
`
`(“Armor Deck”), distributed products for Registrant
`
`from 1994 to
`
`1.
`
`Adrian Jayne
`Backrack,
`Inc.
`475 Wyecroft Rd.
`
`13
`
`

`
`Oakville, L6K 2H2
`Canada
`
`2.
`
`Steve Setteducati
`Armor Deck
`
`280 Midland Avenue
`Building S-1
`Saddle Brook, NJ 07663
`
`3.
`
`Rich Ackley
`Armor Deck
`
`280 Midland Avenue
`Building S-1
`Saddle Brook, NJ 07663
`
`4.
`
`Ruben Castillo
`Armor Deck
`
`280 Midland Avenue
`Building S-1
`Saddle Brook, NJ 07663
`
`5.
`
`Alex Kinon
`Armor Deck
`
`280 Midland Avenue
`Building S-1
`Saddle Brook, NJ 07663
`
`Interrogatory Nos. 8
`
`Identify each person whom Petitioner knows or believes to have
`
`knowledge or information that refers, reflects, or relates to or
`
`concerns the allegations of
`
`the Petition for Cancellation,
`
`and
`
`with respect
`
`to each such person, describe generally the matters
`
`as to which such person is known or believed to have knowledge or
`
`information.
`
`ANSWER:
`
`Petitioner objects
`
`to this interrogatory on the grounds
`
`that
`
`it
`
`is redundant
`
`to the information that Petitioner‘ made
`
`14
`
`

`
`available in its initial disclosures.
`
`Subject
`
`to and without
`
`waiver of
`
`this objection, Petitioner states that
`
`the following
`
`people
`
`are believed to have
`
`knowledge or
`
`information that
`
`refers,
`
`reflects,
`
`relates to, or concerns
`
`the allegations set
`
`forth in the Petition for Cancellation:
`
`1.
`
`Adrian Jayne
`[See Interrogatory No. 7]
`
`Subjects of information: Registrant's adoption and use
`of
`the trademark BACKRACK.
`Registrant's advertising
`and control over the trademark BACKRACK. Registrant's
`prosecution
`of
`U.S.
`Trademark Registration
`No.
`3,014,986. Registrant's corporate structure..
`
`2.
`
`Scott Campbell
`Formerly of Backrack,
`475 Wyecroft Rd.
`Oakville, L6K 2H2
`Canada
`
`Inc.
`
`Subjects of information: Registrant's adoption and use
`of
`the trademark BACKRACK.
`Registrant's advertising
`and control over the trademark BACKRACK. Registrant's
`prosecution
`of
`U.S.
`Trademark Registration
`No.
`3,014,986. Registrant's corporate structure.
`
`3.
`
`Brice [last name unkown]
`Formerly of Backrack,
`Inc.
`475 Wyecroft Rd.
`Oakville, L6K 2H2
`Canada
`
`informatio