BULKY DOCUMENTS
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`(Exceeds 100 pages)
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`Filed:
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`5[27[2011
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`Title: PETTITIONER’S MOTION AND MEMORANDUM
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`FOR SUMM. IUDGMENT; PETITIONER’S NOTICE OF
`RELIANCE, AND DEC. OF IEFFREY KAPLAN IN
`SUPPORT.
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`Part
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`lof 1
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`(Exceeds 100 pages)
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`Filed:
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`5[27[2011
`
`Title: PETTITIONER’S MOTION AND MEMORANDUM
`
`FOR SUMM. IUDGMENT; PETITIONER’S NOTICE OF
`RELIANCE, AND DEC. OF IEFFREY KAPLAN IN
`SUPPORT.
`
`Part
`
`lof 1
`
`
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`
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Jeffrey Kaplan
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`V.
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`Petitioner,
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`Mark: ASPERGUM
`Registration No. 792,1 15
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`Cancellation No. 92053030
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`Insight Pharmaceuticals L.L.C.
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`Respondent
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`752 52053 /02 7
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`PETITIONER’S FILING OF BULKY MATERIAL WITH THE BOARD
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`Dear Sir/Ma’am:
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`Due to the size of this document we could not scan it into the TTAB on line submission
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`service.
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`Please kindly scan and submit to the Board for their review.
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`Respectfully submitted,
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`JeffreyKap er
`I
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`05-27-2011
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Jelfiey Kaplan
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`V.
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`Petitioner,
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`Mark: ASPERGUM
`Registration No. 792,1 15
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`Cancellation No. 92053030
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`Insight Pharmaceuticals L.L.C.
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`Respondent
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`/
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`PETITIONER’S MOTION AND MEMORANDUM FOR SUMMARY JUDGMENT;
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`PETITIONER’S NOTICE OF RELIANCE;
`AND DECLARATION OF JEFFREY KAPLAN IN SUPPORT
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`Petitioner, Jeifiey Kaplan, (“Kaplan”) pursuant to Rule 56(c) of the Federal Rules of Civil
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`Procedure and Rule 2.127 of the Trademark Rules of Practice moves the Board for an Order
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`Granting Summary Judgment in its favor on all claims asserted against the Respondent, Insight
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`Pharmaceuticals L.L.C. (“Insight”) on the ground that there are no genuine issues of material fact
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`precluding Summary Judgment in its favor as follows:
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`The Summag Judgment Standard
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`The Summary Judgment procedure is a pretrial device to dispose of cases on which
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`there is no genuine issue as to any material fact, and the moving party is entitled to
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`judgment as a matter of law. (See Bufiiatt v. Chi-Chis, Inc. 226 USPQ 428 (TTAB 1985);
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`Block Drug Co. v. Morton-Norwich Products Inc. 202 USPQ 157) (TTAB 1979) Entry of
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`summary judgment is appropriate only where there are no genuine disputes as to material
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`facts and judgment may be rendered as a matter of law based on undisputed facts. (See
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`Sweatsfashions v. Panill Knitting Co. 833 F. 2d 1560, 4 USPQ2d 1793) (Fed. Cir. 1987)
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`1-
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`Parties Introduction:
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`“Kaplan” is the President of Retrobrands U.S.A. Inc., an active for profit Florida
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`Corporation- www.retrobrands.net, in business since 2010 which acquires and then through
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`extensive marketing efforts and financial commitment, licenses famous and iconic abandoned
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`brands for re-launching to the public. This successful business model has allowed dozens of
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`once “warehoused” trademarks to be re-launched to the public and has allowed abandoned
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`trademarks to be removed from the cluttered trademark registry. (See Declaration of Jeffrey
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`Kaplan at 12-3) Some trademark examples that “Kaplan” has successfully acquired and are now
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`being re-launched to the public are Datril TM, Hai-KarateTM, Di-Gelm, Modessm and Hidden
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`Magic” (See Declaration of Jeffrey Kaplan at 114)
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`“Insight” is a large manufacturing and marketer based in Langhome, Pennsylvania. They
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`offer to the public leading non-prescription medications that aid users in dealing with common
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`ailments. Some products are Anacin®, Allerest®, Sucrets®, Nix® and many other popular
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`brands. “Insight” products and brands are available at most leading retailers, drug, supermarkets
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`and mass merchandisers throughout the United States. (See Declaration of Jeffrey Kaplan at 115)
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`“Insight” currently owns the Federal trademark “ASPERGUM” for chewing gum containing
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`aspirin Registration No. 792,115. (See Declaration of Jeffrey Kaplan at 116)
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`Brief Statement of Facts
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`“Kaplan” filed on September 10"‘ 2010 an intent- to- use application for the trademark
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`ASPERGUM (Application Serial No, 85126700) based on its bona fide intent to use the
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`trademark in commerce. Believing that the existing Federal Registration for ASPERGUM was
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`invalid due to abandonment, “Kaplan” subsequently filed a Petition to Cancel Federal
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`Registration number 792,115. (See Declaration of Jeffrey Kaplan at 117)
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`2-
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`Respondent as part of their answer denied they abandoned their mark. Respondent also
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`submitted affirmative defenses that stated:
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`(1) Petitioner would not be damaged by Respondent’s registration, (2) Respondent did not
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`abandon their mark, (3) Petitioner did not have an actual intent to use the mark in commerce and
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`(4) Petitioner has not and will not suffer damage or harm by Registration No. 792,115 remaining
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`on the Principal Register. Petitioner subsequently filed a motion to strike all of Respondent’s
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`affirmative defenses but the Board only agreed to strike afiirmative defense number three (3).
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`Undisputed Fact That Petitioner Has Clearly Established Standing
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`Definition of Standing:
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`As per TBMP 309.03(b): Any person who believes it is or will be damaged by registration of a
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`mark has standing to file a complaint. (See Sections 13 and 14 of the Trademark Act, 15 U.S.C.
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`§§ 1063 and 1064, and TBMP § 303) (Who May Oppose or Petition).
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`At the pleading stage, all that is required is that a plaintiff allege facts sufficient to show a
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`“real interest” in the proceeding, and a “reasonable basis for belief of damage." (See Ritchie v.
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`Simpson, 170 F.3d 1092, 50 USPQ2d 1023, 1025 (Fed. Cir. 1999) and Lipton Industries, Inc. v.
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`Ralston Purina Co., 670 F.2d 1024, 213 USPQ 185, 189 (CCPA 1982).
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`To plead a "real interest”, plaintiff must allege a “direct and personal stake" in the outcome of
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`the proceeding.(See Ritchie v. Simpson, supra at 1026. See also Lipton Industries, Inc. v.
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`Ralston Purina C0,, 670 F.2d1024, 213 USPQ 185, 189) (CCPA 1982) The allegations in
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`support of plaintiffs belief of damage must have a reasonable basis in fact. (See Ritchie v.
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`Simpson, supra at 1027 (citing Universal Oil Products v. Rexall Drug & Chemical Co., 463 F.2d
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`1122, 174 USPQ 458, 459-60 (CCPA 1972) and stating that the belief of damage alleged by
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`plaintiff must be more than a subjective belief).
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`3-
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`Allegations in support of standing which may be sufficient for pleading purposes must later
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`be aifirmatively proved by the plaintiff at trial (or on summary judgment). However, there is no
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`requirement that actual damage be pleaded or proved in order to establish standing or to prevail
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`in an opposition or cancellation proceeding. (See TBMP § 303.03 (Meaning of “Damage”), and
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`cases cited therein.)
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`A real interest in the proceeding and a reasonable belief of damage may be found, for
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`example, where plaintiff pleads (and later proves):
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`(a) A claim of likelihood of confusion that is not wholly without merit; (See
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`Lipton Industries, supra; Metromedia Steakhouses, Inc. v. Pondco II Inc., 28 USPQ2d 1205,
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`1209 (TTAB 1993); Selva & Sons, Inc. v. Nina Footwear, Inc., 705 F.2d 1316, 1326, 217 USPQ
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`641, 648) (Fed. Cir. 1983); Time Warner Entertainment Co. v. Jones, 65 USPQ2d 1650, 1657
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`(TTAB 2002); The Nestle Company Inc. v. Nash- Finch Co., 4 USPQ2d 1085, 1087 (TTAB
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`1987); and Liberty Trouser Co. v. Liberty & Co., 222 USPQ 357, 358 (TTAB 1983) (allegation
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`of likelihood of confiision accepted as proper allegation of petitioner's standing with respect to
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`pleaded grounds of fraud and abandonment)
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`(b) Plaintiff has been refused registration of its mark because of defendant’s
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`registration, or has been advised that it will be refused registration when defendant’s application
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`matures into a registration, or has a reasonable belief that registration of its application will be
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`refused because of defendant’s registration; (See Cerveceria Modelo S.A. de C. V. v. R.B. Marco
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`& Sons, Inc., 55 USPQ2d 1298, 1300 (TTAB 2000) and Hartwell Co. v. Shane, 17 USPQ2d
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`1569, 1570 (TTAB 1990); (Continental Grain Co. v. Strongheart Products Inc., 9 USPQ2d
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`1238) (TTAB 1988)
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`(c) Plaintiff has a bona fide intent to use the same mark for related goods, and is
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`about to file an intent-to-use application to register the mark, and believes registration of the
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`mark will be refused in view of respondent’s registration; (See American Vitamin Products Inc.
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`v. Dow Brands Inc., 22 USPQ2d 1313, 1314 ) (TTAB 1992).
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`In this case before the Board, Petitioner has clearly established standing because his bona-fide
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`intent to use application for the mark, ASPERGUM for medicated chewing gum, Serial No.
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`85126700 was refused registration under Trademark Act Section 2(d), 15 U.S.C. Section
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`1052(d) based on likelihood of confusion with Respondent’s involved registration. (Hereby
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`attached as Exhibit A)
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`The Only Issue Before The Board
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`The only issue presented in this Motion for Summary Judgment is whether the activities of
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`“Insight”, establish abandonment of the trademark ASPERGUM for chewing gum containing
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`aspirin with no intent to resume use in commerce.
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`1.
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`ARGUMENT
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`A.
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`“Insight” has expressly abandoned the ASPERGUM trademark.
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`A trademark is abandoned when “its use has been discontinued with intent not to resume such
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`use. Intent not to resume may be inferred from circumstances” (15 U.S.C. §l127). In this case
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`“Insight” through his intemet website at www.insightpharma.com and through its consumer
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`service representatives has made public announcements that it has discontinued ASPERGUM
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`for chewing gum containing aspirin with no intent to resume use. The only possible conclusion a
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`person can interpret from this information is that “Insight” wanted to inform the world that
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`it used to use the mark ASPERGUM for chewing gum containing aspirin but does not do so
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`today.
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`“Insight” has thus expressly abandoned any trademarks rights that it once possessed for
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`the mark, ASPERGUM for chewing gum containing aspirin and “Kaplan’s Petition to Cancel
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`“Insights” registration for ASPERGUM should be granted.
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`B. “Insight” admits it has not manufactured ASPERGUM for more than three (3)
`years and prima facie abandonment has therefore been established.
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`The Trademark Act specifically establishes that “nonuse for three consecutive years shall be
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`prima facie evidence of abandomnent.” (15 U.S.C. § 1127.2) A party claiming abandonment has
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`the burden of establishing the case by a preponderance of the evidence. Introduction of evidence
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`of non use of the mark for three consecutive years constitutes a prima facie showing of
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`abandonment and shifts the burden to the party contesting the abandonment to show either
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`evidence to disprove the underlying facts 111°ggering the presumption of three years nonuse, or
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`evidence of an intent to resume use to disprove the presumed fact of no intent to resume use .
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`(See Imperial Tobacco Ltd. v. Philip Morris Inc., 899 F.2d 1575, 14 USPQ2d 1390, 1393)
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`(Fed. Cir. 1990) (“Philip Morris proved that Imperial did not use the mark JPS for cigarettes
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`in the United States for more than two years immediately preceding the filing of its petition
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`for cancellation. Such proof established a prima facie case of abandonment of the JPS mark
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`under section 45(a), including the element of intent”); (Rivard v. Linville, 133 F.3d 1446, 45
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`USPQ2d 1374) (Fed. Cir. 1998) (“This presumption shifts the burden to the registrant to
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`produce evidence that he either used the mark during the statutory period or intended to resume
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`or commence use”); (Cerveceria Centroamericana S.A. v. Cerveceria India Inc., 892 F.2d 1021,
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`13 USPQ2d 1307) (Fed. Cir. 1989); and (Stromgren Supports, Inc. v. Bike Athletic Company, 43
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`USPQ2d 1100) (TTAB 1997)
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`In this case, “Insight” admits that it has not manufactured any products bearing the mark
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`ASPERGUM for three years prior to January 15‘ 2011. (See “Insight” Request for Admission,
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`Page 5 Response No. 5 Exhibit D). In addition, their consumer service representative verified
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`there were no plans to resume use of the brand. (Hereby attached as Exhibit F)
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`Therefore, prima facie abandonment has been fully established.
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`C. “Insigpt”carmot meet its burden of proving it has taken steps to resume use of
`ASPERGUM within the three year 13 1 period of non use.
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`Once the presumption of abandonment is established, the burden of showing evidence of an
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`intent to resume use shifis to the registrant. (See Exxon Corp v. Humble Exploration, 695 F. 2d
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`96, 99) (Sm Cir. 1983) (“when a prima facie case of trademark abandonment exists because of
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`non use of the mark. . .the owner of the mark has the burden to demonstrate that circumstances do
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`not justify the inference of intent not to resume use”) To meet the burden of showing an intent to
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`resume use, the registrant is required to show “hard evidence of actual “concrete plans to resume
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`use” in the “reasonably foreseeable future when conditions requiring suspension abate”.(See
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`Emmpresa Cubana Del Tabaco v. Culbro, 213 F. Supp. 2d 247, 268) (S.D. N. Y. 2002) (citing
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`Silverman v. C. B.S., Inc., 870 F. 2d 40, 46 (2"d Cir. 1989). To prove intent to resume use, a
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`registrant “must proffer more than conclusory testimony or afiidavits”. “An avertrnent of no
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`intent to abandon is little more than a denial in a pleading, which is patently insufficient to
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`preclude summary judgment. . .” (Imperial Tobacco v. Philip Morris, 899 F. 2d 1575, 1581) (Fed.
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`Cir.1990). (See also Silverman F. 2d at 47) (“A bare assertion of possible future use is not
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`enough”); (Rivard v. Linville, 133 F. 3d 1446, 1449) (Fed. Cir. 1998) (“A registrant’s
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`proclamations of his intent to resume or commence use in United States commerce during the
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`period of nonuse are awarded little, if any, weight”).
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`6-
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`All of the undisputed facts supplied by “Insight” in this case show that ASPERGUM has been
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`abandoned with no intent to resume. In its Answer, “Insight” has denied that it has abandoned its
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`mark and has denied it does not plan to resume use. Those denials should be ignored because the
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`following undisputed evidence provided through discovery proves the opposite.
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`“Insights” responses received through discovery show that there has been no manufacturing
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`of product for three years prior to January 1st 2011 and there have been no steps taken to re-
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`launch said product. The undisputed evidence shows that Respondent removed all information
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`about its ASPERGUM product from its web page and even instructed its customer service
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`representatives to inform the public that the ASPERGUM product has been discontinued with no
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`plans to resume use in the bear fiiture.
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`It “may” be possible that individuals at “Insight” “may” have had meetings whereby
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`ASPERGUM was discussed, but these meetings do not meet the burden of proving an intent to
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`resume use via the “concrete steps” identified in the cases cited above. No matter what “may”
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`have transpired in any possible meetings, as Silverman states, a “bare assertion” is not enough to
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`overcome the presumption of abandonment. According to “Insight”, it carmot locate a single
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`document proving manufacturing and production of its ASPERGUM from 2006 to the present
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`day. Nor has “Insight” through discovery submitted any documents relating to any re-launch.
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`The fact that there are no documents showing evidence of production since 2006 along with
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`no evidence of concrete steps to re-launch the ASPERGUM brand shows that it is impossible
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`that “Insight” will meet its burden to show an intent to resume use in the reasonably foreseeable
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`future. Finally, as a multi- million dollar corporation, “Insight” has no excuses for its non use of
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`the ASPERGUM trademark. If “Insight” wished to re-launch the ASPERGUM brand, it has
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`plenty of resources to do so quickly.
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`At the very least it could have created samples bearing the ASPERGUM mark and informed
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`the public via its public intemet web page that it was re-launching the brand or simply instructing
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`their consumer service representatives to inform customers that the brand will be re-launched
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`very soon. If “Insight” did not desire to abandon the ASPERGUM trademark, it should have re-
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`launched the brand with the vast resources at its disposal.
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`II.
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`UNDISPUTED EVIDENCE OF ABANDONMENT WITH
`NO PLANS TO RESUME USE IN COMMERCE
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`“Insi
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`ts” Res
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`nses to “Ka 1an”s First Set of Written Interro atories (Hereby attached Exh B)
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`Interrogatog 7: Identify the Registrant’s intemet web page that promotes or advertises
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`their product named ASPERGUM to the general public that is in use in interstate commerce
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`for the years: 2006, 2007, 2008, 2009 and 2010.
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`Response: “Insight” replied, “Registrant states it did maintain a web page at
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`www. insightharma. com prior to October 2010, for promoting and advertising products bearing
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`the mark ASPERGUM” (Hereby attached as Exhibit B, Page 5 Response No. 7) but when
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`Petitioner in its Requests for Production of Documents requested a copy of that web page for
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`proof, Respondent replied, “ Registrant states it has no responsive documents in its possession,
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`custody or control (Hereby attached as Exhibit C, Pages 5-6 Response No. 7) Therefore,
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`Respondent’s undocumented claim of such a web page should be given no consideration.
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`Interrogatogy 8: Identify the Registrant’s intemet web page and or URL address that informs
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`the public that their product named ASPERGUM will be re-launched or re-introduced to the
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`general public for the years: 2006, 2007, 2008, 2009 and 2010.
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`Response: “Insight” replied, “Specifically Insight objects to this interrogatorjy to the
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`extent it implies that the product ASPERGUM needs to be re-launched or re-introduced to the
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`general public or that Insight is required to inform the public ofits confidential andproprietary
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`marketing plans via a website or webpage. (Hereby attached as Exhibit B, Pages 5-6 Response
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`No. 8)
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`Since prima facie abandonment has been established, Respondent’s lack of web site
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`information about a possible re-launch of ASPERGUM is undisputed evidence of an intent not to
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`resume. In addition, Respondent propounds the same argument when Petitioner in its Requests
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`for Production of Documents requested a copy of that web page for proof, (Hereby attached as
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`Exhibit C, Page 6 Response No. 7)
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`lnterrogatog 10: Identify the name, company and or customer service answering service
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`along with their address and telephone number that Registrant utilizes to receive and answer
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`public consumer inquires about their products, specifically ASPERGUM for the years: 2006,
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`2007, 2008, 2009 and 2010.
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`Response: “Insight” replied, “Insight states that AccuData is the company that answers all
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`customer service inquiries regarding the product bearing the ASPERGUM mark (Hereby
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`attached as Exhibit B, Pages 6 -7 Response No. 10)
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`Interrogato1_'y 1 1: Identify the number of yearly consumer inquires either by email,
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`telephone, fax or letter correspondences in regards to the purchase availability of their product ,
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`namely ASPERGUM for the years: 2006, 2007, 2008, 2009 and 2010.
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`Response: “Insight” replied, that obtaining this information would be a “undue burden as
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`it would require Registrant to obtain informationfiom a separate third—party entities that may or
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`may not be in their possession, custoay or control. ” (Hereby attached as Exhibit B, Page 7
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`Response No. 1 1)
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`9-
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`Petitioner finds it odd as should the Board that Respondent pays AccuData to answer all
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`customer service inquires regarding the product bearing the ASPERGUM mark but finds it a
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`burden to identify the number of inquiries to dispute Petitioner’s claims that Respondent has
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`been informing the public that ASPERGUM is discontinued with no intent to resume.
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`Interrogatory 12: Identify each and every inquiry and the responses to these inquiries
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`submitted to the Registrant and or their consumer service representative(s) about the availability
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`of Registrant’s named ASPERGUM identified in interrogatories 10 and 11 for the following
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`years: 2006, 2007, 2008, 2009 and 2010.
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`Response: “Insight” replied, that obtaining this information would be a “undue burden as
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`it would require Registrant to obtain information fiom a separate third-party entities that may or
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`may not be in their possession, custody or control. ” (Hereby attached as Exhibit B, Page 7
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`Response No. 12)
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`Petitioner again finds it odd as should the Board that Respondent pays AccuData to answer
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`all customer service inquires regarding the product bearing the ASPERGUM mark but finds it a
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`burden to identify these inquiries to dispute Petitioners claims that Respondent has been
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`informing the public that ASPERGUM is discontinued with no intent to resume. In addition,
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`Respondent also refused to provide copies of the consumer ASPERGUM related inquires on
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`the same objection grounds. (Hereby attached as Exhibit C, Page 12 Response No. 20)
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`Interrogatogy 15: Identify the advertising agency or agencies used by Registrant to promote
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`their products that use the mark ASPERGUM in interstate commerce for the years: 2006, 2007
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`2008, 2009 and 2010.
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`Response: “lnsight” replied, “Insight objects to this Interrogatorjy as vague, ambiguous,
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`overly broad, unduly burdensome, and seeking information that is neither relevant nor likely to
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`lead to the discovery ofadmissible evidence. ”
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`Respondent’s refusal to simply identify its advertising agency that promoted its alleged
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`products is more undisputed evidence that Respondent abandoned its mark with no intent to
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`resume use. (Hereby attached as Exhibit B, Pages 8-9 Response No. 15)
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`Interrogatory 16: Identify the Registrant’s account manager or the agency’s individual(s)
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`primarily responsible for Registrant’s advertising account and give the dates and time such
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`agencies were responsible for your advertising work for the years: 2006, 2007, 2008,
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`2009 and 2010.
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`_l§=,_s_1)()_nsg: “Insight” replied, “Insight objects to this Interrogatory as vague, ambiguous,
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`overly broad, unduly burdensome, and seeking information that is neither relevant nor likely to
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`lead to the discovery ofadmissible evidence. ”
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`Respondents refusal to simply identify its contact person at the advertising agency that
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`promoted its alleged products is more undisputed evidence that Respondent abandoned its mark
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`with no intent to resume. (Hereby attached as Exhibit B, Page 9 Response No. 16)
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`Interrogatog 17: Identify representative copies of all advertising, press releases, media
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`articles or promotional material, including but not limited to tags, posters, labels, advertisement,
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`catalogs, brochures and signs approved, issued and or used by the Registrant to promote
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`their products sold under the ASPERGUM mark for the years: 2006, 2007, 2008, 2009
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`and 2010.
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`ll-
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`Response: “Insight” replied, “Insight objects to this interrogatory as vague, ambiguous, overly
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`broad, unduly burdensome, and seeking information that is neither relevant nor likely to lead to
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`the discovery ofadmissible evidence. Subject to and without waiving its general and specific
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`objections, Insight state it provides documents to this interrogatogv in response to Document
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`Request No. 3. (Hereby attached as Exhibit B, Page 9 Response No. 17)
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`Respondent states it has provided documents to this interrogatory but the Board will see
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`that Respondent did not provide such evidence.
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`A review of Respondent’s Response to Requests for Production, Page 3 Response No. 3,
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`Registrant responds, “Registrant objects to this Request as vague, ambiguous, overly broad,
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`unduly burdensome, and seeking information that is neither relevant nor likely to lead to the
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`discovery ofadmissible evidence. Subject to these objections and the general objections setforth
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`above and construing this Request in accordance therewith, aside fiom the product packaging,
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`Registrant has no such documents ”. (Hereby attached as Exhibit C, Pages 3-4 Response No. 3)
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`Interrogatory 21: Identify each label, tag, decal, imprint or other means by which the mark
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`ASPERGUM was used on Registrant’s products packaging in interstate commerce for the years
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`2006, 2007, 2008, 2009 and 2010.
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`Response: “Insight” replied, “Registrant objects to this Interrogatory as vague, ambiguous,
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`overly broad, unduly burdensome, and seeking information that is neither relevant nor likely to
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`lead to the discovery ofadmissible evidence. Subject to and without waiving its general and
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`specific objections, Registrant states it provides documents responsive to this interrogatogz in
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`response to Document Request No. I .(Hereby attached as Exhibit B, Page 11 Response No. 21)
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`Respondent states it has provided documents to this Interrogatory but the Board will see that
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`Respondent has not provided such documents.
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`12-
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`A review of Respondent’s Response to Requests for Production, Page 3 Response No. 1,
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`Registrant responds, “Registrant objects to this Request as vague, ambiguous, overly broad,
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`unduly burdensome, and seeking information that is neither relevant nor likely to lead to the
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`discovery ofadmissible evidence. Subject to these objections and the general objections setforth
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`above and construing this Request in accordance therewith, Registrant will produce responsive
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`documents, ifany, for inspection at a mutually agreeable date, time, and location. (Hereby
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`attached as Exhibit C, Page 3 Response No. 1)
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`The place of production is governed by 37 CFR § 2.120(d)(2). However in Board cases
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`parties often extend each other the courtesy of producing reguested documents by copying the
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`documents and forwarding them to the reguesting Iggy.
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`In this case before the Board, Respondent does not appear to show any courtesy to anyone. In
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`fact Respondent does not even “confirm” if any such documents exists. Respondent writes,
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`“Registrant will produce responsive documents, if any, for inspection at a mutually agreeable
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`date, time, and location
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`Respondent expects Petitioner to travel thousands of miles to their offices not even knowing
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`if such documents will even be at the location. The actions by Respondent clearly indicate they
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`have no such documents and is further undisputed evidence of their abandonment of the mark
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`ASPERGUM with no intent to resume.
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`Interrogatory 22: In regard to each item identified in interrogatory 21 identify the
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`manufacturer, co-packer or printer that printed the labels, tags, decals or imprint or other means
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`by which the mark ASPERGUM was used on the products packaging in interstate commerce for
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`the years: 2006, 2007, 2008, 2009 and 2010.
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`13-
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`
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`Response: “Insight” replied, that identifying their manufacturer, co-packer or printer
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`would be a “undue burden as it would require Registrant to obtain information from a separate
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`third-party entities that may or may not be in their possession, custody or control. ” (Hereby
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`attached as Exhibit B, Page 11 Response No. 22)
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`Respondent’s refusal to identify its manufacturer, co-packer or printer that printed the labels,
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`tags, decals or imprint on its alleged products is more undisputed evidence that Respondent
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`abandoned its mark with no intent to resume.
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`Interrogatog 29: Identify the name, telephone number and address of the manufacturer(s)
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`and or co-packer(s) that manufactured Registrant’s products using the mark ASPERGUM in
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`interstate commerce for the years: 2006, 2007, 2008, 2009 and 2010.
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`Response: “Insight”, as usual objects to this interrogatory as “vague, ambiguous, overly
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`broad, unduly burdensome, and seeking information that is neither relevant nor likely to lead to
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`the discovery ofadmissible evidence. ”(Hereby attached as Exhibit B, Page 14 Response No. 29)
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`Respondent’s refusal to simply identify its manufacturer, co-packer or printer that
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`manufactured or co-packed its alleged ASPERGUM products is more undisputed evidence that
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`Respondent abandoned its mark with no intent to resume.
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`Interrogatog 30: For each manufacturer(s) and or co-packer(s) identified in interrogatory 29
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`identify the number of units and or cases purchased for each year listed.
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`Response: “Insight”, again objects to this interrogatory as “vague, ambiguous, overly
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`broad, unduly burdensome, and seeking information that is neither relevant nor likely to lead to
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`the discovery ofadmissible evidence. ”(Hereby attached as Exhibit B, Pages 14 - 15 Response
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`No. 30)
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`14-
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`
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`Respondent’s refusal to simply identify the number of units manufactured is more undisputed
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`evidence that no products were manufactured and Respondent abandoned its mark with no intent
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`to resume.
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`Interrogatory 31: For each unit or cases identified in interrogatory 30 identify each purchase
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`order or sales agreement.
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`Response: “Insight”, objects to this interrogatory as “vague, ambiguous, overly broad,
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`unduly burdensome, and seeking information that is neither relevant nor likely to lead to the
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`discovery ofadmissible evidence. ”(Hereby attached as Exhibit B, Page 15 Response No. 31)
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`Respondent’s refusal to simply identify any Valid purchase orders for the number of units
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`manufactured is more undisputed evidence that no products were manufactured and Respondent
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`abandoned its mark with no intent to resume.
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`Interrogatog 32: Identify the Registrant’s Broker(s) or Manufacturers Representative(s) for
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`the product using the mark ASPERGUM for the years: 2006, 2007, 2008, 2009 and 2010.
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`I “Insight”, objects to this interrogatory as “vague, ambiguous, overly broad,
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`unduly burdensome, and seeking information that is neither relevant nor likely to lead to the
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`discovery ofadmissible evidence. Specifically, Registrant objects to this interrogatory because it
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`use of “Brokers” and “Manufacturers Representatives” is vague and ambiguous”.
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`(Hereby attached as Exhibit B, Page 15 Response No. 32)
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`Respondent’s refusal to simply identify its brokers or manufacturer representatives, claiming
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`these commonly known business positions and titles are vague and ambiguous is comical to this
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`Petitioner and should be to the Board. The evidence that Respondent has no brokers or
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`representatives promoting its alleged ASPERGUM products is undisputed.
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`15-
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`
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`Interrogatog 33: Identify the industry trade show(s) or similar buying event venues that
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`Registrant and or Registrants Broker(s) or Manufacturers Representative(s) attended on behalf of
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`Registrant to promote and sell the product ASPERGUM for the years: 2006, 2007, 2008,
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`2009 and 2010.
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`Response: “Insight”, as usual objects to this interrogatory as “vague, ambiguous, overly
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`broad, unduly burdensome, and seeking information that is neither relevant nor likely to lead to
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`the discovery ofadmissible evidence. Specifically, Registrant objects to this interrogatory
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`because it use of “Brokers” and Manufacturers Representatives” is vague and ambiguous
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`(Hereby attached as Exhibit B, Pages 15-16 Response No. 33)
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`Respondent’s refusal to identify any tradeshows that it attended claiming the words Broker
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`and Manufacturer Representative as vague and ambiguous is again clear evidence that
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`Respondent or its representatives never attended any trade shows, etc. to promote its alleged
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`product ASPERGUM.
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`19. Interrogatog 36: Identify the trucking and or freight companies that shipped the
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`Registrant’s products using the mark ASPERGUM for the following years: 2006, 2007, 2008,
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`2009 and 2010 in interstate commerce.
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`&e_sp_<_);_1§_e_: “Insight”, as usual objects to this interrogatory as “vague, ambiguous, overly
`
`broad, unduly burdensome, and seeking information that is neither relevant nor likely to lead to
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`the discovery ofadmissible evidence. Specifically, Registrant objects to this Interrogatory on
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`grounds ofoverbreadth and or undue burden because Registrant ’s manner ofdelivery has no
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`relevance to any issue in this case. (Hereby attached as Exhibit B, Pages 16-17 Response No.
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`36)
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`
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`Respondent’s refusal to identify its freight or truck companies to prove it actually delivered
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`its alleged ASPERGUM is further clear and undisputed evidence that no such ASPERGUM
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`product was shipped, giving further undisputed evidence of abandonment with no intent to
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`resume.
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`Interrogatory 37: Identify the number of units or cases shipped with the trucking companies
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`identified in Interrogatory 36 for the following years: 2006, 2007, 2008, 2009 and 2010.
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`Response: “Insight”, as usual objects to this interrogatory as “vague, ambiguous, overly
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`broad, unduly burdensome, and seeking information that is neither relevant nor likely to lead to
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`the discovery ofadmissible evidence. Specifically, Registrant objects to this Interrogatory on
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`grounds ofoverbreadth and or undue burden because Registrant ’s manner ofdelivery has no
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`relevance to any issue in this case. (Hereby attached as Exhibit B, Page 17 Response No. 37)
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`Respondent’s refusal to identify the number of ASPERGUM units or cases shipped through
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`its freight or truck companies to prove it actually delivered its alleged ASPERGUM products is
`further clear and undisputed evidence
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