throbber
Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA621744
`ESTTA Tracking number:
`08/15/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92055278
`Plaintiff
`BD Hotels, LLC
`THOMAS W BROOKE
`HOLLAND & KNIGHT LLP
`800 17TH STREET NW, SUITE 1100
`WASHINGTON, DC 20006
`UNITED STATES
`thomas.brooke@hklaw.com, ptdocketing@hklaw.com,
`birte.hoehnemahyera@hklaw.com
`Testimony For Plaintiff
`Thomas W. Brooke
`thomas.brooke@hklaw.com, ptdocketing@hklaw.com
`/Thomas W. Brooke/
`08/15/2014
`richard born_08_15_2014_11_40_09_667.pdf(32837 bytes )
`born richard 07.10.14.pdf(88478 bytes )
`EX 1_Part1.pdf(5226305 bytes )
`EX 1_Part2.pdf(5213463 bytes )
`EX 1_Part3.pdf(5204581 bytes )
`EX 1_Part4.pdf(5220267 bytes )
`EX 1_Part5.pdf(2226189 bytes )
`BornEx2.pdf(78935 bytes )
`BornEx3.pdf(79831 bytes )
`BornEx4.pdf(80538 bytes )
`BornEx5.pdf(76855 bytes )
`BornEx6.pdf(93671 bytes )
`BornEx7.pdf(270610 bytes )
`BornEx8.pdf(445424 bytes )
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`BD Hotels, LLC
`Petitioner,
`
`V.
`
`Mr. Michael D. Linczyc
`Respondent
`
`.
`
`Cancellation No. 92,055,278
`
`I
`
`.
`
`Reg. No. 3,424,090
`
`NOTICE OF FILING DEPOSITION OF
`
`RICHARD BORN
`
`Please take Notice that,
`
`in accordance with Trademark Rule 37 C.F.R. §2.123 (f),
`
`Petitioner BD Hotels, LLC, files the transcript of the testimonial deposition of Richard Born.
`
`
`
`Holland & Knight LLP
`800 17”‘ Street, N.W., Suite 1100
`Washington, D.C. 20006
`202-663-7271
`
`thomas.brooke@hklaw.com
`
`Counsel for Petitioner
`
`

`
`CERTIFICATE OF SERVICE
`
`I hereby certify that a true and correct copy of the foregoing NOTICE OF FILING
`DEPOSITION OF RICHARD BORN was furnished by U.S. Mail and email to counsel for
`Respondent to the following address on August 15 , 2014:
`
`Matthew Swyers, Esq.
`The Trademark Company, PLLC
`344 Maple Avenue West, Suite 151
`'
`'
`'
`'
`T2180
`
`eTrademarkCompany.com
`
`Thomas W. Brooke
`
`#29151 lSS_vl
`
`

`
`Page 1
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`---------------------------------------------- x
`
`BD Hotels, LLC
`
` Petitioner, Cancellation No
`
` 92,055,278
`
` -against-
`
` Reg No 3,424,090
`
`Mr. Michael D. Linczyc
`
` Respondent.
`
`---------------------------------------------- x
`
` EXAMINATION of RICHARD BORN, taken by the
`
`Petitioner, held at the offices of Holland & Knight,
`
`LLP, 31 West 52nd Street, New York, New York 10019,
`
`on July 10, 2014, at 2:05 p.m., before, Stephanie
`
`Morano, a court reporter and a Notary Public of the
`
`State of New York.
`
`***********************************************
`
` MAGNA LEGAL SERVICES
`
` (866) 624-6221
`
` www.MagnaLS.com
`
`

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`Page 2
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`A P P E A R A N C E S:
`
` HOLLAND & KNIGHT, LLP
`
` Attorneys for Petitioner
`
` BD HOTELS, LLC
`
` 31 West 52nd Street
`
` New York, New York 10019
`
` 212-513-3200
`
` BY: THOMAS W. BROOKE, ESQ.
`
` THE TRADEMARK COMPANY, PLLC
`
` Attorneys for Respondent
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` MICHAEL D. LINCZYC
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`14
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` 344 Maple Avenue
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` Vienna, Virginia 22180
`
` 800-906-8626
`
` BY: MATTHEW SWYERS, ESQ.
`
` via teleconference
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` BORN
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`R I C H A R D B O R N,
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` having been first duly sworn before a Notary
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` Public of the State of New York, was examined
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`Page 3
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` and testified as follows:
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`EXAMINATION
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` BY MR. BROOKE:
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`Q What is your name?
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`A Richard Born.
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`Q What is your address?
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`A 871 7th Avenue, New York, New York
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`10019.
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`Q. My name is Tom Brooke from Holland &
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`Knight here on your behalf or on behalf of BD
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`Hotels, LLC. What is your position with BD
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`Hotels, LLC?
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`A. I am a managing member of the LLC.
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`Q. What are your responsibilities as
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`managing member of the LLC?
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`A. There are two of us and primarily we
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`are in the business of developing and
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`managing and promoting hotels.
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`Q. Can you give us a quick history and
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`review of your educational background?
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`A. Educational background, I was not
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`trained in business. I went to NYU and went
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`to undergraduate NYU medical school. I did a
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`residency in New York University and Mount
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`Sinai Hospital and then I took a leave of
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`absence and went into the real estate
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`business. I started out as a broker for
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`about a year or two and then went into the
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`real estate business and acquired my first
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`hotel in 1987. I teamed up with a partner
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`Ira Druckier and the two of us have developed
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`additional hotels and we currently have
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`ownership interest and management
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`responsibilities in 25 hotels.
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`Q. How did it come about that you started
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`using the name The Pod Hotel?
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`A. We had owned for many, many years a
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`hotel called the Pickwick Arms on East 51st
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`Street and it was originally an SRO. It had
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`many residential tenants and we started
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`operating it as a transient hotel under the
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`name Pickwick Arms. At a point in time we
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`realized that the hotel was tired and in need
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`of a major renovation. The hotel had many,
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`many small rooms and we were faced with the
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`

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`option of either gutting the building and
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`making far fewer rooms or renovating the
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`building similar to its existing
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`configuration with very, very tiny rooms. We
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`chose the latter because the building had 347
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`rooms and we thought that would be an
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`interesting business model. We liked the
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`idea of trying to sell small rooms that were
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`well designed, technologically up-to-date,
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`and very affordable so we started a
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`renovation on the building in 2006.
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` We were kicking around different ideas
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`and we came up with the name Pod Hotel
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`sometime in 2006 and we developed logos
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`around it. We developed the marketing
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`campaign around it and ultimately we reopened
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`the hotel in early 2007 under the name Pod
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`Hotel and we registered the trademark for use
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`of the name The Pod Hotel for hotel services,
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`food and beverage services.
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`Q. Has the hotel been successful?
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`A. Yes. The hotel has been hugely
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`successful. It was enormously successful
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`right off the bat. I sort of described it as
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`

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`the shot heard around the world. We had
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`immediately hundreds and hundreds of articles
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`written in newspapers all around the world.
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`We have a publicist that helps us promote it,
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`but we have had an enormous amount of
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`publicity for The Pod Hotel. I think the
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`name was very evocative of the product and
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`therefore it caught on.
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` The hotel itself has been very, very
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`successful. Our occupancy has been in the
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`range of ninety -- actually probably over
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`ninety percent from the time we opened up and
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`we immediately realized that we had both the
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`concept and the design that was appealing in
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`the market place. We immediately began to
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`look for other sites to be able to do this.
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`We started having many conversations with
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`sites in New York and many cities outside of
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`New York City. Unfortunately, 2008 and 2009
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`when the recession came we were slowed up a
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`little bit, but come 2010 we acquired a
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`second site. In New York on East 39th
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`Street, we built a second Pod Hotel which
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`also was hugely successful and has been
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`

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`ninety percent occupancy since the day we
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`opened. We're currently in talks with
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`developers in Washington, Boston. We've
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`acquired a site in California.
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`Q. Do you want any of this to be
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`confidential?
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`A. No.
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`Q. Let me know if we need anything to be
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`confidential.
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`A. No. There's nothing that I've said so
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`far that's not out in the press already.
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`Frankly, I've been interviewed many times by
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`the press just along this. We acquired a
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`building in Los Angeles that we are working
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`on a design for a Pod. We have acquired a
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`site in Times Square where we just began
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`excavation for a Pod in New York City and one
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`in Williamsburg where we have sight control
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`and we plan to start construction in about a
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`month.
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`Q. Williamsburg, Brooklyn?
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`A. Yes. We're engaged in conversations
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`with a group in South America that wants to
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`buy the rights to develop Pods and have us
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`

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`branded in South America. We have a term
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`sheet that we are negotiating with an
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`opportunity fund based in London who would
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`like to develop, as the term sheet described,
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`fifteen Pods in various cities in Europe as
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`well. All under our branding and management
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`so I think we've -- notwithstanding a small
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`speed bump we had due to the recession, I
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`think we're marching ahead.
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`Q. Tell us how you promote and advertise
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`your services.
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`A. One of the great things about Pod that
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`we realized is that the concept and the name
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`is so evocative that we have not had to spend
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`a lot of money on paid advertisement. We do
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`a lot of public relations. We have a public
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`relations firm, Nancy J. Freidman & Company.
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`There have been over 3,000 articles published
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`since 2007 and literally in every corner of
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`the globe. Additionally, we try to spend a
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`lot -- again, the other beauty of the Pod not
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`having to spend money on paid advertisement
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`is that we drive a lot of business directly
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`to our website by purchasing keywords and
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`

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`terms from Google in key markets. We
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`actually have a company that monitors that.
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`It's called HIS, Hotel Information Systems.
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`They monitor that on a regular basis. They
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`observe which key words are effective and
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`where we're driving our business and which
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`markets are effective and driving our
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`business and we're constantly modifying our
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`keywords and modifying the markets as we
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`purchase these words. Primarily from Google
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`searches, although we have purchased from
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`other search companies as well.
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`Q. You mentioned earlier that there have
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`been numerous newspaper articles or magazine
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`articles or web articles about you; is that
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`right?
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`A. Yes.
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` MR. BROOKE: Matthew, as we
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` discussed and as provided to you, I
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` have here over three hundred pages of
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` newspaper, magazine, and web articles
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` all from US publications. We
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` previously produced a much larger
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` stack which had International
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`

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` publications, but since we're only
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` talking about the US market here, I
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` collated out all the foreign
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` materials.
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` (Exhibit 1, Document, was marked for
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`identification.)
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`Q. I'm going to put in front of you,
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`Mr. Born, a stack of articles. If you could
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`quickly look through this. I think we're
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`going to stipulate that these are documents
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`that both I've seen -- just tell us what some
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`of these are?
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`A. I'll just pick randomly from the top.
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`This is an article by Terry Ward called Tiny
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`Hotels on AOL Travel website. It really
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`starts out with an article -- it discusses
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`us. It also discussed Yotel and a hotel
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`called Cube, but it focuses on us. The main
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`interviewee for this was Vanessa Guilford who
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`works for us full-time and she is our chief
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`designer.
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` The second article is February 2nd,
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`2007 in USA Today. I don't see a title.
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`It's the Checking In section and it is
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`exclusively about us. The next one is
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`August 2007 Time Out New York. It's an
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`article about us. There's another article in
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`2007 on a magazine called Dwell. I'll just
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`skip fifty or sixty articles. There's an
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`article in Detroit Hotel Free Press Hotels
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`court high-tech guests. They highlight three
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`or four hotels. Among them is The Pod Hotel
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`in New York City which is us. If I can skip
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`again -- I'm not sure if these are all in
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`order.
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`Q. They should be roughly in
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`chronological.
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`A. There's an article here in Vast
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`Company March 2009, seven compact hotels big
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`city style. The first one they feature is
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`The Pod Hotel in New York City. It looks
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`like GQ magazine features The Pod Hotel.
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`There's Hotel Chatter. New York Pod Hotel
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`launches training program for young adults
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`with autism. That was a campaign we did for
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`summer jobs for handicapped children. MSNBC,
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`January 2010. Top ten tech-savy hotels. It
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`lists a group of hotels. This is a worldwide
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`list and among the worldwide list, there is
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`only one listed in New York City and that's
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`The Pod Hotel. This looks like New York
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`Daily News, a Midtown east gem in May of 2010
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`which a review of The Pod Hotel on 51st
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`Street. New York Times technology section.
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`Q. That gives a flavor and these are all
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`very typical of the types of stories about
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`you, right?
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`A. Right. I haven't even scratched the
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`surface and haven't gotten to the point past
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`us being just one hotel.
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`Q. Right.
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`A. If I flip through further on when we
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`have the second hotel and when we are
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`announcing a third and a chain then the
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`volume gets even bigger. Again, I'll bother
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`you a little more. Los Angeles Times,
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`January 2011. New York, two hotels show the
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`power of one with a one-day sale and they
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`feature the two Pod Hotels. The Miami Herald
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`features The Pod Hotel. MSNBC features The
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`Pod Hotel. On and on and frankly I think
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`we're just scratching the surface with this.
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`

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`I believe my public relations company has
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`counted the amount of press stories about or
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`mentions of the Pod in the thousands rather
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`than the hundreds since we opened about seven
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`years ago.
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`Q. Are you aware of anyone else using the
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`name Pod Hotel or Pod as a trademark for a
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`hotel in the United States?
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`A. No.
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`Q. Did there come a time when you took
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`action to protect your name through a US
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`trademark registration?
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`A. Well, we filed for a trademark
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`registration for The Pod Hotel almost
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`immediately or I think just before we began
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`using the name. I believe through your
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`office.
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`Q. Let me put in front of you what we
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`will mark as Exhibit 2. This is a copy from
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`the US Patent and Trademark office website.
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`Registration number 3575140, The Pod Hotel.
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` (Exhibit 2, Document, was marked for
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`identification.)
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`Q. What does it say?
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`

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`A. It says The Pod Hotel Word Mark The
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`Pod Hotel.
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`Q. What does goods and services say?
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`A. Hotel, bar and restaurant services.
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`First use is January 1st, 2007 and this
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`filing date of this is March 4, 2008.
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`Q. I'll show you now what we'll mark as
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`Exhibit 3.
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` (Exhibit 3, Document, was marked for
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`identification.)
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`Q. It has registration number 3575141.
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`The Pod Hotel, hotel concierge services?
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`A. That's right, and the same dates.
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`Q. You have both yourself and through our
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`law firm written third parties who attempted
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`to use or thought about using or have
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`actually used the name Pod, haven't you?
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`A. Correct. Whatever we come across --
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`sometimes I come across it, sometimes an
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`employee comes across it, sometimes a friend
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`or an attorney will come across it, sometimes
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`you will come across it and make us aware of
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`it. My instruction to you will always be to
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`issue a cease and desist letter to that party
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`to inform them that we have and use the
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`trademark.
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`Q. Now, did there come a time when you
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`became aware of the fact that somebody owned
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`a US Trademark registration for the name
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`Metro-Pod?
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`A. Yes.
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`Q. What did you do when you heard about
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`that?
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`A. I spoke to you and asked you to be in
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`touch with them and inform them that we owned
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`the trademark. It didn't appear to me that
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`the word Metro-Pod was being used for the
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`purpose of selling hotel services at all. It
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`appeared to me that they were in the business
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`of marketing a design of a hotel room more
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`than anything. I asked you to reach out to
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`them and ask them not to promote themselves
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`as providing hotel services.
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`Q. Let me show you what we'll mark as
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`Exhibit 4.
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` (Exhibit 4, Document, was marked for
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`identification.)
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`Q. This is for registration 3424090 for
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`Metro-Pod and you can take a look at this.
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`A. It lists as goods and services
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`provision of hotel and restaurant services.
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`Q. If you go to the second page, you will
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`see owner --
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`A. The owner is Michael D. Linczyc
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`Individual with a UK address. Excuse me.
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`Individual UK with an address in Short Hills,
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`New Jersey.
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`Q. Did you do some sort of investigation
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`into Mr. Linczyc in his operations and his
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`use of the name?
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`A. Yes. I looked at his website. He
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`didn't seem like he was in the hotel
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`business. I called him up and met him in my
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`office. I can't remember exactly when. I
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`spoke to him on the phone and subsequently
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`met him in my office. I forgot why we
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`discussed what he thought or we thought might
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`be some commonality of business that we could
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`potentially do together unrelated to that
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`conversation. He came into my office. We
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`talked about it. He told me what he was
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`doing. He showed me from his, I think, a
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`laptop that he brought with him a group of
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`designs for rooms. One of them called
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`Metro-Pod. He said he was using the name for
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`the purpose of promoting this hotel room
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`design and that was his primary business or
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`that was his business. I don't know if there
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`were primaries needed. I asked him at the
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`time if he would consider changing his
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`registration because he was not providing
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`hotel services, but he was in the design
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`business. He actually indicated that he
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`would be receptive to doing it and we agreed
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`to talk further between our lawyers and see
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`if we could work something out. Apparently
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`there was a change of heart on his part and
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`he then refused to voluntarily alter his
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`trademark on the name Metro-Pod.
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`Q. Are you familiar with the hotel
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`Westminster in Livingston, New Jersey?
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`A. Yes, I am. I happen to know the owner
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`of the hotel and he introduced me to the
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`current general manager of the hotel.
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`Q. How do you know the owner?
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`A. Socially, not business.
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`

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`Q. He introduced you to the general
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`manager and what happened?
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`A. I asked the general manager if he knew
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`Michael Linczyc and he said that Michael
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`Linczyc --
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` MR. SWYERS: I'm going to
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` object on this ground because it would
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` be hearsay to testify to a person what
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` they said if they are not a party to
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` this action. I will object on hearsay
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` grounds.
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` MR. BROOKE: You can continue
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` to testify and we can take it up with
`
` the court or take it up with the
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` board, but go on.
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`A. Well, the general manager told me that
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`Mr. Linczyc had worked at the hotel around
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`the time of its opening for a couple of years
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`and was involved in design of the hotel
`
`property and design of some of the logos and
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`potentially marketing brochures. He was not
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`aware of his involvement of anything having
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`to do with actual operations or of actual
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`hotel bookings or reservations at that time.
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`

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`Q. To your knowledge, was Mr.
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`Linczyc ever operating the hotel Westminster?
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`A. No. There was a general manager that
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`he worked for and he was never -- to my
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`knowledge other than design, he did not have
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`other functions there.
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`Q. To your knowledge, did Mr. Linczyc
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`ever provide any hotel services?
`
`A. No.
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`Q. To your knowledge, did he ever provide
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`any restaurant services?
`
`A. No. I did further speak to the
`
`general manager of the hotel more recently,
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`several months ago as we were preparing for
`
`this deposition to ask if there was any
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`change and --
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` MR. SWYERS: Just a continuing
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` objection on the hearsay.
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` MR. BROOKE: That's fine.
`
` Thank you.
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`A. Prior to having contacted the general
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`manager recently, I had spoken to Michael
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`Linczyc again pleading with him not to have
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`to drag us through this process and trying to
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`understand why exactly he is trying to hold
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`onto the trademark for hotel services since
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`he is not providing hotel services and he
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`told me he is in the active business of
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`procuring hotel reservations and promoting
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`hotel rooms which I wasn't aware of
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`previously. He said sure, look at my
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`website. I'm promoting hotel services and
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`then upon pressing him several times, he said
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`I primarily book rooms at the Westminster
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`Hotel. I called up the general manager and
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`he was surprised to hear that. He said it
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`could be possible that Michael Linczyc has
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`some way of booking rooms indirectly through
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`his systems, but he was completely unaware of
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`the fact that Michael Linczyc had anything to
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`do with the Westminster Hotel at any time in
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`the near history potentially for a long
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`period of time.
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` MR. SWYERS: Again, just a
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` continuing objection on the hearsay.
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` MR. BROOKE: Matthew, do you
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` have your computer there and your
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` browser open?
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`

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` MR. SWYERS: Yes.
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` MR. BROOKE: Because I'm going
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` to show Mr. Born the Metro-Pod and the
`
` Westminster websites. I'll let you
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` get to your browser and get it open.
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` We're going to go to Metro-Pod.com.
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` MR. SWYERS: Our client's
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` website?
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` MR. BROOKE: Correct. Right
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` now we're looking at www.metro-pod.com
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` and I will put a paper copy in front
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` of him at some point.
`
`Q. Do you see the website, Mr. Born?
`
`A. Yes, I do.
`
`Q. It says here, "Metro-Pod has been
`
`providing services to obtain bed and board in
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`hotels, boarding houses or other
`
`establishments providing temporary
`
`accommodation for nearly ten years." In your
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`experience as somebody who has been in the
`
`hotel business now for over 25 years, does
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`that indicate that Metro-Pod is providing
`
`hotel services itself?
`
`A. No. There are several things wrong
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`

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`with this. The first thing that's terribly
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`wrong with this is if you look at Metro-Pod's
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`old websites, they don't talk anything about
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`reservations, making reservations, staying in
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`hotels. It only talks about room designs.
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`It's only, I think, since about 2011 or '12
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`that they actually even claim to be a conduit
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`to booking hotel rooms. If you look at their
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`website here, you have --
`
`Q. The one in front of us?
`
`A. The one in front of us, there are
`
`three things that come to mind. The first
`
`thing, all they're doing is taking you either
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`to other people's reservation services being
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`Hotels.com, Booking.com, Worldhotels, or to
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`the Westminster Hotel so I'm not sure what
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`service they plan -- the first three are
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`fairly generic booking engines that anybody
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`could use for hotel services and the last is
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`just a hotel where one can go directly. The
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`other thing that I find somewhat offensive
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`is -- because I really haven't seen this
`
`website or haven't seen it in awhile, that he
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`actually changed the graphics of the Pod and
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`

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`took the font of the P and the D which, I
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`think, is either exactly what my font is or
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`evocative of my font which is very different
`
`from the old fonts he had. Not only has he
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`been trampling on my space, but trying to
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`modify his graphics to mimic mine.
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`Q. I'm going to show you what will be
`
`Exhibit 5.
`
` (Exhibit 5, Document, was marked for
`
`identification.)
`
`Q. It's a paper copy of what we're
`
`looking at. I printed it out and you'll see
`
`the date on the bottom, 7/9/2014. I printed
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`it out yesterday and I will represent this is
`
`a copy of what you see on your screen. Don't
`
`you agree?
`
`A. Yes.
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`Q. On the paper in front of you, you see
`
`the Hotels.com link, the Booking.com link and
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`the Worldhotels.com link, right?
`
`A. Yes.
`
`Q. Then down on the bottom right, there's
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`what appears to be some sort of link to the
`
`Westminster, right?
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`

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`A. Correct.
`
`Q. Let's try each one of these and see
`
`what happens here. If we click on the link
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`for Hotels.com, it's now taken us to --
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`A. Hotels.com.
`
`Q. Is that a Metro-Pod website?
`
`A. No. The troubling thing with this is,
`
`firstly, he's not as his trademark
`
`application says providing hotel and
`
`restaurant services. All he's doing is
`
`providing a link to a means to make a
`
`reservation which is very different than
`
`providing hotel services. The other thing
`
`that is terribly problematic for me is that
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`if somebody wants to book a room in the Pod
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`Hotel and they come upon his website by
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`mistake and click through to Hotels.com, they
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`can then book my hotel if they search for
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`Pod, but I'm going to have to pay them a 21
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`percent commission. This is the real crime
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`of what he's doing here. To the extent
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`somebody is looking to come to my hotel and
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`falls upon him by accident and then goes
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`through him to any of the three choices he's
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`

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`giving them, I will then be paying
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`commissions for these engines now booking my
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`rooms. I pay Hotels.com 21 percent by the
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`way, just so you know.
`
`Q. We've gone back to the Metro-Pod
`
`website and if we go down to where it says
`
`click to make a reservation, you got a finger
`
`pointing and if you click on that, we now go
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`to a totally different website, don't we?
`
`A. Yes. This is the website for the
`
`Westminster Hotel.
`
`Q. The web address here is
`
`www.westminsterhotel.net?
`
`A. Yes.
`
`Q. I'll put in front of you what we will
`
`mark as Exhibit 6 and this is a paper copy.
`
` (Exhibit 6, Document, was marked for
`
`identification.)
`
` MR. BROOKE: Matthew, just to
`
` make sure we're all on the same page
`
` literally, we're at
`
` www.westminster.net if you click
`
` through.
`
` MR. SWYERS: If I may, so the
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`

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` record is clear, what did you click
`
` on? Was it the click to make a
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` reservation and that took you through
`
` to Westminster?
`
`A. There is a little finger pointing a
`
`hand on the lower right side of the screen.
`
` MR. SWYERS: Thank you. And
`
` above it, it says "Click to make a
`
` reservation"?
`
`A. Correct.
`
`Q. This is the Westminster Hotel website,
`
`isn't it?
`
`A. Yes, it appears to be.
`
`Q. The Westminster Hotel actually is a
`
`hotel in Livingston, New Jersey, isn't it?
`
`A. Yes, correct.
`
`Q. Do you see anything on this website in
`
`front of us now either in the paper copy or
`
`on this that says anything about Metro-Pod?
`
`A. Nothing about Metro-Pod, nothing about
`
`Pod. This clearly is not a hotel that one
`
`would describe as a Pod in any way.
`
`Q. In fact, what does it describe itself
`
`as?
`
`

`
` BORN
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`A. NJ -- I assume that means New Jersey.
`
`Luxury hotel, spa and event venue.
`
`Q. That's not the sort of services that
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`Page 27
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`you offer?
`
`A. Correct.
`
`Q. Again, the paper in front of you which
`
`we marked as Exhibit 6 is this website that
`
`we're looking at now on the screen, isn't it?
`
`A. Yes.
`
`Q. Now, we're going to back up and hit
`
`the back button on our browser here and take
`
`us back to www.metro-pod.com, right?
`
`A. Yes.
`
`Q. A moment ago we clicked on the red
`
`finger pointing arrow on the bottom right of
`
`the screen, didn't we?
`
`A. Yes.
`
`Q. If we click on this sort of menu
`
`option that says check now in red and there's
`
`five diamond and it looks like a reservation
`
`that says World Hotels and at the bottom it
`
`says Livingston, NJ weather. Do you see
`
`that?
`
`A. Yes. It's funny because all that
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`is -- without being identified as part of the
`
`Westminster Hotel site, that is just a cut
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`and paste of the booking window on the
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`Westminster website. If you go back and
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`forth, you'll see that little postage stamp
`
`white reservation box is really Westminster's
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`reservation box.
`
`Q. Let's click on it and see if we can
`
`make a reservation. When we clicked on that
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`white postage stamp that was on the Metro-Pod
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`website, what does it do?
`
`A. It takes you back to the Westminster
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`website.
`
`Q. We clicked on the white postage stamp
`
`on the Metro-Pod website?
`
`A. It takes you to Westminster website.
`
`Q. You cannot make a reservation for a
`
`hotel on the Metro-Pod website; is that
`
`correct?
`
`A. That's correct. It merely is a
`
`conduit to either the Westminster Hotel or to
`
`other hotel reservation services. We clearly
`
`aren't providing hotel services.
`
`Q. When you say "we"?
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`

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`A. Metro-Pod is not providing hotel
`
`services. Metro-Pod is functioning as a
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`conduit to allow you to make a reservation.
`
`Q. I'm going to put in front of you your
`
`affidavit that you had earlier signed in this
`
`case and we'll mark this as Exhibit 7.
`
` (Exhibit 7, Document, was marked for
`
`identification.)
`
`Q. Are you familiar with this affidavit,
`
`Mr. Born?
`
`A. Yes. It appears to be what I signed
`
`back in November of 2013.
`
`Q. Is there anything about this that has
`
`changed or anything that you need to clarify
`
`about this?
`
`A. I do not believe so.
`
`Q. If you flip back to attachment one,
`
`you'll see what the Metro-Pod website looked
`
`like at the time you signed this declaration;
`
`isn't that correct?
`
`A. Yes.
`
`Q. You'll see there that it says,
`
`"Metro-Pod will re-conceptualize the lodging
`
`experience and break --
`
`

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`Page 30
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