Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA1049775
`
`Filing date:
`
`04/17/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92060205
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`Jeffrey Kaplan
`
`ADAM S GOLDMAN
`THE CONCEPT LAW GROUP PA
`6400 N ANDREWS AVE, STE 500
`FORT LAUDERDALE, FL 33309
`UNITED STATES
`agoldman@conceptlaw.com, abrown@conceptlaw.com, amore-
`land@conceptlaw.com
`754-300-1500
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Testimony For Plaintiff
`
`Adam S. Goldman, Esq.
`
`litigation@conceptlaw.com
`
`/Adam S. Goldman/
`
`04/17/2020
`
`Attachments
`
`Mercer Notice of Filing_PUBLIC.pdf(4799972 bytes )
`
`
`
`ESTTA Tracking number:
`
`ESTTA1049775
`
`Filing date:
`
`04/17/2020
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92060205
`
`Party
`
`Correspondence
`Address
`
`Plaintiff
`Jeffrey Kaplan
`
`ADAM S GOLDMAN
`THE CONCEPT LAW GROUP PA
`6400 N ANDREWS AVE, STE 500
`FORT LAUDERDALE, FL 33309
`UNITED STATES
`agoldman@conceptlaw.com, abrown@conceptlaw.com, amore-
`land@conceptlaw.com
`754-300-1500
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Testimony For Plaintiff
`
`Adam S. Goldman, Esq.
`
`litigation@conceptlaw.com
`
`/Adam S. Goldman/
`
`04/17/2020
`
`Attachments
`
`Mercer Notice of Filing_PUBLIC.pdf(4799972 bytes )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Jeffrey Kaplan, In re: Registration Nos. 841768, 845518, 2236642
`
`Petitioner,
`
`Mark: SEA & SKI
`
`v.
`
`Cancellation No. 92060205
`
`
`
`Faulding Health Care (IP) Holdings, Inc.
`
`Registrant.
` _________________________________/
`
`NOTICE OF FILING OF CERTIFIED TESTIMONIAL DEPOSITION OF
`JAMES P. MERCER
`
`Petitioner Retrobrands USA, LLC, pursuant to Trademark Rules of Practice 2.123 and
`
`2.125, 37 C.F.R. §§ 2.123 and 2.125, and TBMP §§ 703.01(k) and 703.01(l), files a certified
`
`transcript of the March 22, 2019 testimonial deposition of James P. Mercer with the Trademark
`
`Trial and Appeal Board contemporaneously herewith. The copy of the transcript is corrected
`
`pursuant to 37 C.F.R. § 2.125(c) and TBMP § 703.01(n).
`
`Although the original transcript has been labeled in its entirety as “ATTORNEYS’ EYES
`
`ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE),” Petitioner has made necessary
`
`redactions to the submission for public viewing.
`
`Dated: April 17, 2020.
`
`THE CONCEPT LAW GROUP, P.A.
`6400 N Andrews Avenue, Suite 500
`Fort Lauderdale, Florida 33309
`(T): 754.300.1500
`
`By: /s/ Adam S. Goldman
`Alexander D. Brown
`abrown@conceptlaw.com
`Adam S. Goldman
`agoldman@conceptlaw.com
`
`P a g e | 1
`
`
`
`Counsel for Petitioner
`
`CERTIFICATE OF SERVICE
`
`I HEREBY CERTIFY that a true and correct copy of the foregoing has been filed with the
`Board and furnished via E-Mail to all counsel on the below Service List on April 17, 2020.
`
`By: /s/ Adam S. Goldman
`
`SERVICE LIST
`
`McCarter & English, LLP
`Lori J. Shyavitz, Irene M. Hurtado
`lshyavitz@mccarter.com
`ihurtado@mccarter.com
`Counsel for Registrant
`
`P a g e | 2
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`
`
`
`
`IN THE UHIILD STATES PATENT AND TRADEMARK OFFICE
`
`
`BEFORL KHE TRADEMARK TRIAL AND APPEAL BOARD
`
`ORIGINAL
`
`JEFFREY KAPLAN,
`
`In re: Registration Nos. 941768,
`845518, 2236642
`
`Petitioner,
`
`Mark: SEA & SKI
`
`v.
`
`Cancellation No. 92060205
`
`FAULDING HEALTH CARE {IP}
`HOLDINGS,
`INC .
`,
`
`Registrant.
`
`CORRECTED TRANSCRIPT
`
`Deposition of:
`
`James P. Mercer
`
`Date:
`
`Time:
`
`March 22, 2019
`
`9:30 a.m.
`
`Location:
`
`1670 South Fiske Boulevard
`
`Rookledge,
`
`FL 32955
`
`Reported by:
`
`Sheryl J. Dixon
`StenOgraph Shorthand Reporter
`
`RYAN REPORTING
`
`
`
`
`RYAN REPORTING
`REGISTERED PROFESSIONAL REPORTERS
`
`
`1670 S. FISKE BOJLEVARD
`
`ROCKLEDGE, FLORIDA 32955
`
`(321) 636-4450
`FAX:(321)
`633—0972
`
`PAGE 1
`PAGE 1
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`
`
`Speakerphone}
`
`
`
`
`
`
`
`
`
`ADAM GOLDMAN, ESQUIRE {Via
`
`The Concegt Law Group, B.A.
`6400 North Andrewe Avenue
`Suite 500
`
`FL 33309
`k'ort Lauderdale,
`agoldmanGconceleaw.com
`
`Appearing for the Petétione:
`
`LORI J. SHYAVITZ, ESQUIRE
`
`McCarter
`& English
`265 Franklin Stree
`Boston, MA 02110
`lshyavitszccarter.com
`
`I|
`
`
`
`Appearing for the Registrant
`
`
`
`
`
`
`
`
`
`BESO PRESENT:
`
`
`
`
`ERNIE MRRTTNEZ, ESQUIRE {Via Uideo-Conierencing)
`
`
`
`RYAN REPORTING
`
`PAGE 2
`PAGE 2
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`I N
`
`3 L X
`
`Page 3
`
`
`
`T33 :WONY OF JAMES P. MERCER:
`
`
`Cr05572xamination by Mr. Goldman
`
`Redirec: Examination by M5. Shyavitz
`RecrOSS“Examina:ion by M1. Goldman
`
`
`Furiher Redixec: ExaanatiQn by Ms. Snyavitz
`?ur;her Recross—Exaanation by Mr. Goldman
`
`4
`67
`69
`?
`70
`
`.J
`
`'-J.__
`
`OJ
`.I‘).
`
`
`
`Ceriificate of Oath
`
`C9r:ifiinate of Reporter
`
`
`
`M
`
`X H
`
`l B : T S
`
`(None Marked)
`
`RYAN REPORTING
`
`PAGE 3
`PAGE 3
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`
`
`Page 4
`
`
`
`
`
`JAMES P. MERCER ,
`
`having been first duly sworn, was examined and testified upon
`
`his oath as follows:
`
`CRUSScEXRMINRTIDN
`
`1
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`12
`
`BY MR. GOLDMRN:
`
`Q
`
`Good morning, Mr. Mercer.
`
`My name is Adam
`
`Goldman,
`
`I represent the Petitioner in this trademark
`
`proceeding, Mr- Jeffrey Kaplan.
`
`Would you mind stating your full name
`
`for the record?
`
`A
`
`Q
`
`A
`
`James Peter Mercer.
`
`Mr. Mercer, have you ever had a deposition before?
`
`1 have.
`
`
`
`
`
`
`
`
`
`
`
`What was the nature of those proceedings?
`
`
`
`
`
`
`
`
`
`
`
`
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`Q
`
`A
`
`Q
`
`Patent
`
`Patent
`
`infringement.
`
`
`
`infringement? Can you tell me about
`
`those
`
`—— was it just one proceeding?
`
`A
`
`Q
`
`A
`
`les.
`
`Okay. When was that proceeding?
`
`It was infringement on a design patent for a pair
`
`of baby sunglasses.
`
`(Whereupon,
`
`there was a brief break in the video—
`
`conferencing equipment, after which the following
`
`proceedings were had:}
`
`MR. GOLDMAN: 1’m_back.
`
`It seems like this is going
`
`so let’s just switch to the
`to be a recurring problem,
`RYAN REPORTING
`
`PAGE 4
`PAGE 4
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`telephone oohrerenco.
`
`i don’t want
`
`to waste anyone's
`
`time today.
`
`MS. SHYAVlTZ: Okay.
`
`Can we
`
`just go off the record for one second
`
`we figure out
`
`the logistics.
`
`:Whereupou,
`
`there was an orE-the‘record discussion,
`
`after which the following proceedings were had:)
`
`MS. SHYAVlTZ: Adam, did you hear Mr. Mercer’s
`
`rusponse to your last question?
`
`W ’re just not sure
`
`where it froze.
`
`MR. GOLDMAN: Yeah. No,
`
`I want
`
`to take it back a
`
`question or two.
`
`I didn’t --
`
`MS. SHYAVTTZ: Okay.
`
`B‘r‘ MR . G DLDMAN:
`
`
`
`
`
`Q
`
`So, sorry about that, Mr.
`
`."
`
`take it
`
`back.
`
`I
`
`thought
`
`I heard you say that you were previously
`
`involved with a
`
`trademark infringement dispute.
`
`A
`
`Q
`
`Correct.
`
`Was that correct? And then,
`
`I believe your answer
`
`MS. SHIAVITZ: Adam, objection. Misstate: witness’
`
`prior testimony.
`
`MR. GOLDMAN: Okay. There was a connection issue.
`
`BY MR. GOLDMAN:
`
`Q
`
`Sir, you were previously involved in a trademark
`RYAN REPORTING
`
`PAGE 5
`PAGE 5
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`infringement suit;
`
`i5 that correct?
`
`Page o
`
`MS. SHYAVITZ: Objection. Misstates witness’ prior
`
`testimony.
`
`BY MR. GOLDMAN:
`
`Q
`
`All right. We just Could waste time, but have you
`
`previously been involved with any type of infringement—
`
`related lawsuit?
`
`MS. SHYAVITZ: You can answer.
`
`THE WITNESS: Yes.
`
`BY MR. GOLDMAN:
`
`And what was
`
`the nature of that
`
`lawsuit?
`
`It was infringement on a patent
`
`or baby
`
`
`
`A
`
`Q
`
`RYAN REPORTING
`
`And were you the Plaintiff or
`
`the
`
`And how did that case resolve?
`
`Settled.
`
`And you gave a deposition in that case?
`
`Yes.
`
`Oka
`
`.
`
`So, because
`
`ou’ve had
`
`Y
`
`our de osition taken
`P
`
`before, you may be generally familiar with some of
`
`the rules,
`
`but let’s go over them quickly so that we avoid any issues
`
`down the road.
`
`A
`
`Okay.
`
`So,
`
`today I'm going to be asking you questions and
`
`PAGE 6
`PAGE 6
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`you’re .u u
`
`t.
`
`“
`
`i
`
`them under oath.
`
`Do you understand
`
`Page 7
`
`A
`
`Q
`
`Yes.
`
`Okay.
`
`And because we’re doing a
`
`telephone
`
`conference,
`
`it may be a little bit more Challenging, but
`
`let’s avoid talking over each other.
`
`Let me finish the
`
`question and then I’ll give you the time tn answer. Okay?
`
`A
`
`Q
`
`Yup.
`
`And specifically because we’re not present,
`
`I
`
`cannot see if you are nodding your head or shaking your head,
`
`but
`
`in any event,
`
`the court reporter needs to take down a
`
`verbal response,
`
`so obviously make sure that you answer my
`
`ouestions verbally. Okay?
`
`A
`--.
`o
`
`Yup.
`
`if I ask a question today that you don’t understand
`
`or it’s poorly worded,
`
`let me know and I’m happy to rephrase
`
`it for you so that you understand. Okay?
`1\
`a
`
`Great.
`
`Q
`
`And during the deposition it you need to take a
`
`break for any reason,
`
`just let me know,
`
`I'm happy to do so.
`
`
`
`RYAN REPORTENG
`
`Okay?
`
`A
`
`0
`
`Fine.
`
`Mr. Mercer, are you on any type of medication or is
`
`there anything that would be affecting your ability to
`
`testify truthfully today?
`
`PAGE 7
`PAGE 7
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`', are you represented by Counsel
`
`RYAN REPORTING
`
`
`
`Anfl who is your Counsel?
`
`
`Lori. Ernie Martinez.
`
`Okay.
`
`So, Mr. Martinez is also representing you
`
`today in addition to Ms. Shyavitz?
`
`A
`
`Q
`
`No.
`
`Just Lori.
`
`Okay. Mr. Mercer, did you submit a Declaration on
`
`behalf of Fauldino in the Case that you were to testify about
`
`today?
`
`a
`
`'es.
`
`MR- GOLDMAN: Okay. Because that Declaration is
`
`already in the record by virtue of Faulding’s filing in
`
`this case, we don’t need to introduce it as an exhibit.
`
`But
`
`1
`
`am going to ask Madam Court Reporter to present
`
`you with a copy of
`
`the Declaration.
`
`THE REPORTER:
`
`1
`
`just handed it to him in an
`
`envelope.
`
`BY MR. GOLDMAN:
`
`Q
`
`Okay.
`
`You can open the envelope and Keep those
`
`documents handy.
`
`A
`
`Q
`
`A
`
`Okay.
`
`And just let me know once you have it handy.
`
`Okay.
`
`PAGE 8
`PAGE 8
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`a moment, but Mr. Mercer,
`
`1
`
`.
`
`'. laration that you’re looking
`
`at,
`
`is that a true and correct copy of
`
`the Deciaration that
`
`you signed and submitted on behalf of Fauiding Health Care in
`
`this case?
`
`M5. SHYAVITZ:
`
`'.
`
`reviewing the documents.
`
`MR. GOLDMAN: Yes, no problem.
`
`M3. SHYAVITZ: Was this attached to this
`
`(indicating)?
`
`THE WITNI
`
`BY MR . GULDMAN:
`
`Q
`
`I’m sorry, Mr. Mercer,
`
`I wasn’t sure if you were
`
`responding to my question.
`
`A
`
`I’m just reading this last piece that was part of
`
`RYAN REPORTING
`
`Fair enough.
`
`Take your
`
`time.
`
`SHYAVITZ: Adam,
`
`for your benefit,
`
`it might be
`
`Mr. Mercer just reads the title of the
`
`document
`
`to you so you know what he’s looking at.
`
`THE WITNESS: Notice of Rejected Voucher. To Steven
`
`Wolverton. Case Number, Tracking Number, Defendant
`
`Charles Williams.
`
`BY MR- GOLDMAN:
`
`Q
`
`I’m not
`
`there.
`
`is that something attached to your
`
`Declaration that you’re reading?
`
`PAGE 9
`PAGE 9
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`Which exhibit are you looking at?
`
`D.
`
`MS. SHYAVITZ: Adam,
`
`if 1 may,
`
`it looks as though
`
`there was a paper that was accidentally attached to the
`
`back of Exhibit D.
`
`it seems to pertain to a completely
`
`
`
`RYAN REPORTLNG
`
`different case.
`
`It’s dated yesterday.
`
`MR. GOLDMAN: Yeah,
`
`I was going to say,
`
`i didn’t
`
`ecognize that subject matter.
`
`MS. SHYAVlTZ: Right.
`
`MR. GOLDMAN: Okay.
`
`So,
`
`let's just discard that,
`
`
`
`obviously, gori.
`
`You can use your judgment on that.
`
`MS. SHYAVITZ: Sure.
`
`It appears that Mr. Mercer is finished reviewing
`
`the document, Adam.
`
`80,
`
`if you’d like to, you ask your
`
`questiot.
`
`i
`
`think he’s ready to go.
`
`BY MR. GOLDMAN:
`
`Q
`
`Yeah, I'll ask the question again.
`
`that a
`
`true and accurate copy of th\
`
`submitted in this case?
`
`A
`
`it is, yes.
`
`Okay.
`
`Did you draft that Declaration?
`
`Did I personally draft this?
`
`Yes.
`
`I believe Counsel did.
`
`PAGE 10
`PAGE 10
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`Q
`
`Okay.
`
`Have you been :.W""
`
`-
`
`:6 by Counsel for
`
`Page 1 1
`
`Faulding prior to your deposition today?
`
`Yes.
`
`Okay. When did that attorney/client relationship
`
`Was
`
`it last year.
`
`MS. SHYAVITZ: Just answer his question.
`
`THE WITNESS:
`
`i don't know exactly when it was.
`
`BY MR . GOLDMAN:
`
`Q
`
`Okay. When did you first have contact with any
`
`attorney for Faulding as it concerns this trademark action?
`
`A
`
`Last year,
`
`I don’t know the exact date, Adam.
`
`was on the way to the airport and was notified +7 to a
`
`deposition —— that your firm had cancelled.
`
`Q
`
`Okay. Did Counsel for Faulding provide the text
`
`in
`
`this Declaration for you?
`
`A
`
`No,
`
`l gave them my 0'
`
`‘
`
`._ '
`
`d on my knowledge
`
`of this entire case.
`
`Q
`
`’;
`
`.
`
`Is there anything in your Declaration that
`
`yOu’ve
`
`'
`
`.
`
`no longer accurate since you drafted
`
`it?
`
`A
`
`Q
`
`Did Counsel for Faulding ask you to submit this
`
`
`
`Declaration?
`
`A
`
`Explain the question.
`RYAN R3 PORT I NG
`
`PAGE 11
`PAGE 11
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`Q
`
`Did Counse
`
`[or
`
`taulding ask
`
`Declaration in this proceeding?
`
`MS. SHYAVTTZ:
`
`l’m going Lt objec: on privilege
`
`grounds, and instruct the witness not
`
`to answer.
`
`BY MR. GULDMAN:
`
`Q
`
`Have you been paid to i
`
`1?.
`
`_“f Declaration?
`
`being paid to testify today?
`
`being otherwise compensated for your ——
`
`involvement
`
`in this proceeding by Eaulding?
`
`ND .
`
`What did you do to prejare for this drposition
`
`RYAN REPORT 1 NE
`
`
`
`A
`
`Reviewed the ohrono.ogi.
`
`time line or how
`
`involved I’ve been with the Sea & Ski brand.
`
`Q
`
`And in order to review that
`
`time line
`
`time line a document or you're just going through your
`
`memory?
`
`A
`
`No,
`
`i had taken some notes and kind of —- you know,
`
`this has been going on.
`
`I’ve known Mitch Gray since early
`
`probably 2003, 2004, when Mitch had acquired the Sea & Ski
`
`brand.
`
`Q
`
`Okay.
`
`i’ll get
`
`into that
`
`in a little bit.
`
`But
`
`PAGE 12
`PAGE 12
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`nocuments did you review to refresh _":
`
`time line?
`
`Page
`
`MS. SMYAVITZ: Objection.
`
`5.fi;'.:. witness’ p.'
`
`testimony.
`
`BY MR. GOLDMAN:
`
`
`
`Baby Blanket.
`
`L've been involved in the technology side of
`
`this business from a formulation standpoint
`
`in the late
`
`eighties.
`
`I’m very familiar with the FDA mon09raph and all
`
`the
`
`technological aspects of owning a sun care brand. And been
`
`involved in this industry since the late eighties.
`
`Q
`
`Fair enough. Most of that answer was non—
`
`responsive to the question.
`
`I'm simply just
`
`trying to
`
`understand what documents you reviewed, and based on your
`RYAN REPORTING
`
`PAGE 13
`PAGE 13
`
`Did you review documents to prepare for your
`
`Did you review anything to prepare for your
`
`testimony today?
`
`Yeah, my own notes,
`
`time line, and how things
`
`happened chronologically from the time I met Mitch back in
`
`2003 or tour, and the annual
`
`times that Mitch and I discussed
`
`many possibilities with -- I’ve been in the sun care business
`
`for my entire adult career, since the late eighties.
`
`And in the sun care business,
`
`I’ve owned several brands
`
`of my own, one including Nantucket Gold, another one called
`
`
`
`
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`testimony, correct me if I’m wrong, you
`
`fur notes from approximately 2003 and 2004 when you
`
`Mr. Gray;
`
`is that right?
`
`A
`
`Well,
`
`I
`
`iust tried to put
`
`the time line, because
`
`that’s quite a long way aways.
`
`You know, it’s just a time
`
`—— you know,
`
`just trying to figure out, was it
`
`2003, was it 2004? When did Mitch buy that brand? When did
`
`we first meet? At what shows did we meet? And when did that
`
`relationship start?
`
`Moving forward through the years, all the different
`
`that we’ve collaborated on a lot of different aspects,
`
`-
`
`I
`
`remember vividly signing the
`
`agreement
`
`in May of 2016.
`
`
`
`0
`
`A
`
`Q
`
`A
`
`Q
`
`Okay. Mr. Mercer, do you know who J'JT
`
`I do not know him personally, no.
`
`Do you know who he is in relation to this dispute?
`
`when I say this dispute,
`
`I’m_referrinq to the
`
`trademark proceeding.
`
`A
`
`Q
`
`Yes.
`
`What
`
`is your knowledge about Mr- Kaplan as it
`
`relates to this suit?
`
`My personal opinion?
`
`Yeah.
`
`I
`
`think he’s abusing the system.
`RYAN REPORTING
`
`PAGE 14
`PAGE 14
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`Why do
`
`you
`
`SE
`
`Just
`
`look
`
`at
`
`What’s his
`
`record?
`
`He basically trolls
`
`brands without
`
`paying for them.
`
`Q
`
`of your opinion on that?
`
`court records.
`
`rds have you reviewed that
`
`Derson that you just
`
`
`
`this
`
`let’s
`
`case; any other cases?
`
`just stay with this one, it's enough.
`
`Okay.
`
`have any other facts that support
`
`your opinion
`
`that
`
`Kaplan is a troll and abuu
`
`sthem?
`
`pretty obvious what he does.
`
`into specifics, but
`
`RYAN REPORTING
`
`Outside
`
`read
`
`of this case I can’t go
`o
`it’r
`
`Okay.
`
`What
`
`have you read?
`
`read certain court cases, and when we
`
`found out
`
`about what he was trying to do,
`
`I mean, everybody
`
`in our office,
`
`this got
`
`their full attention because what be
`
`was
`
`trying to do.
`
`Q
`
`A
`
`Okay.
`
`I’m asking ——
`
`So,
`
`everybody would co
`
`me
`
`to
`
`us with various
`
`PAGE 15
`PAGE 15
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`
`
` opinions about who he is, what he did, what he’s done, and
`
`2
`
`3
`
`4
`
`5
`
`6
`
`7
`
`8
`
`9
`
`10
`
`11
`
`“2
`
`L3
`
`)4
`
`“5
`
`16
`
`
`
`“7
`
`“8
`
`L9
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`
`
`
`
`it’s quite sickening to be perfectly honest with you.
`
`Q
`
`Okay.
`
`T want to know what you’ve read, because you
`
`indicated that
`
`there are other things --
`
`A
`
`Q
`
`A
`
`Like 1 said,
`
`1 read this ~—
`
`—— but
`
`I’m asking ——
`
`-- I read this case.
`
`
`TH' RdPORthR: One at a time, please.
`
`
`THE WITNESS:
`
`I
`
`read this case. Shrt's the only
`
`case I’m worried about.
`
`I don't care about Mr. Kapian.
`
`BY MR . GOLDl‘f'lF-‘xN:
`
`Q
`
`i understand that may be the only case that you are
`
`worried about, but Ciearly from your answer you’re indicating
`
`that
`
`there’s other things that’s formed the basis of your
`
`opinion.
`
`So,
`
`l’m simply trying to figure out what those are.
`
`A
`
`Q
`
`Nothing specific.
`
`So, outside of this case,
`
`is it your
`
`testimony that
`
`you have no other factual
`
`information to support your opinion
`
`that Mr. Kaplan is a troll and abuses the system?
`
`A
`
`Q
`
`That’s correct.
`
`Okay.
`
`So, as fat as this case goes, what
`
`leads you
`
`to that opinion?
`
`A
`
`In my professional opinion,
`
`the attempt
`
`to steel
`
`the Sea a Ski brand based on whatever his claim is, non-use
`
`or whatever,
`
`is absolutely ludicrous.
`RYAN REPORTING
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`PAGE 16
`PAGE 16
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
` 7
`
`
`
`Page 1
`Q
`Mr. Mercer, are you familiar with trademark law?
`
`Ix)
`
`LIJ
`
`C"
`
`CD
`
`I_,\_|
`
`
`
`2O
`
`A
`
`Q
`
`Not entirely, no, but
`
`L do know a little bit.
`
`Okay. Are you familiar with the law concerning
`
`abandonment of trademarks?
`
`Q
`
`Okay.
`
`Tell me what your understanding of
`
`abandonment means in the trademark context.
`
`:m
`
`That
`
`the company that owns
`
`the —— basically is
`
`abandoning it and not using the mark-
`
`Q
`
`Okay.
`
`is that the extent or your understanding of
`
`abandonment?
`
`A
`
`Q
`
`That’s correct.
`
`Was
`
`there any time period,
`
`to your knowledge,
`
`that
`
`Fauiding ceased using the Sea & Ski mark?
`
`A
`
`Q
`
`No.
`
`Was
`
`there ever a time,
`
`to your knowledge,
`
`that
`
`Fauldihg ceased selling products bearing the Sea & Ski mark?
`
`A
`
`o
`
`No.
`
`Do you know those things for a fact; do you know
`
`for a fact
`
`that
`
`there was no time that
`
`they stopped using the
`
`mark and no time that
`
`they ceased selling the products under
`
`the mark?
`
`
`
`MS. SHYAVITZ: Objection, compound.
`
`BY MR. GOLDMAN:
`
`Q
`
`You can answer.
`RYAN R SPORTING
`
`
`
`PAGE 17
`PAGE 17
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`MS. SHYAV:TZ: You can answer.
`
`THE WITNESS: Could you repeat
`
`the question?
`
`GOLDMAN:
`
`Do you know for certain that
`
`there was no time
`
`which Faulding ceased using the Sea & Ski mark?
`
`There would be no way of me knowing that.
`
`J
`'ust
`
`. "'
`
`i.
`
`_
`
`"
`
`no time that the
`
`Y
`
`lP
`_
`stow ea usinq
`
`guess I’m
`
`little confused because you
`
`the mark;
`
`is that a
`
`m‘.
`
`recitation of your
`
`testimony?
`
`A
`
`Yeah, but
`
`question.
`
`then you’re trying to confuse me with the
`
`
`
`RYAN REPORTING
`
`
`
`No,
`
`l’m.just asking are you certain about
`
`that
`
`Are we certain about anything in life?
`
`I’m asking you specifically about
`
`that question.
`
`To answer the question, you’re trying to catch me
`
`lie here, or whatever you’re trying to do.
`
`How would I possibly know —~ how would I possibly
`
`guarantee you that,
`
`if I have to be certain about something?
`
`Q
`
`A
`
`I’m trying to find out
`
`the basis and *-
`
`No, you’re not, you’re trying ——
`
`—— the circumstances —~
`
`I’m sorry?
`
`Go ahead.
`
`Q
`
`Okay. Yeah,
`
`I’m trying to find out
`
`the basis for
`
`that opinion.
`
`You just Called my Client a troll and
`
`PAGE 18
`PAGE 18
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`abuses the system,
`
`so I want
`
`to Know ~~ since you stated that
`
`Page 19
`
`there was no time that
`
`they stopped using the mark,
`
`T want
`
`to
`
`know whether
`
`,
`
`for certain or whether that's
`
`simply your opinion.
`
`A
`
`Q
`
`No time that
`
`I’m aware of.
`
`And there is no time that you're aware of
`
`that
`
`they
`
`ever ceased selling any products bearing the S a
`
`No time that
`
`I’m aware oE.
`
`Q
`
`Would it surprise you to learn that
`
`there was
`
`period of time where they stopped selling product. bed
`
`the Sea & Ski mark?
`
`MS. SHYAVITZ: Objection. Counsel’s testifying.
`
`BY MR.
`
`You can answer.
`
`Repeat the question.
`
`
`
`
`
`Woul'
`
`it surprise you to learn that
`
`there was a
`
`period
`
`t
`
`-'
`
`-
`
`that Faulding stopped selling products bearing
`
`the Sea & Ski mark?
`
`A
`
`Q
`
`Yes, absolutely‘
`
`If that were the case,
`
`if that were true, would
`
`that change your opinion regarding Mr. Kaplan as far as your
`
`contention that he abuses the s stem and is a
`
`trademark
`
`troll?
`
`SHYAVITZ:
`
`'IJ-
`
`'
`
`.
`
`.
`
`:
`
`for speculation.
`
`PAGE 19
`PAGE 19
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`You can answer.
`
`THE WITNESS: Repeat
`
`BY MR.
`
`COL-DEVIAD-I :
`
`hat’s okay, I’ll strike the question.
`
`you testified earlier that Mr. Kaplan was
`
`trying to
`
`brand, what do you mean by that?
`
`Well,
`
`it’s my perception that r,
`
`just
`
`look at the
`
`case.
`
`a-.
`
`it’s so obvious what he’s trying to do.
`
`explain further?
`
`i
`
`just think that what he's trying to do is —
`
`e basically there’s a loophole in the trademark patent
`
`orfice.
`
`to me that you’ve get a company here that
`
`he’s purchased this brand, he’s paid a significant amount 0
`
`money for the brand, and you’ve got an attorney that
`
`this is
`
`what he does,
`
`that’s trying to steal
`
`the brand for non—use.
`
`it doesn’t tly with me.
`
`Q
`
`When you said there’s an attorney and this is what
`
`he does, what did you mean?
`
`A
`
`Q
`
`Isn’t Mr- Kaplan an attorney?
`
`i can’t answer
`
`that, but I'll just tell you that
`
`not an attorney.
`
`All
`
`right. Well, he’s a business man, whatever he
`
`
`
`RYAN REPORTING
`
`Okay.
`
`And what
`
`]oophole is there that you were
`
`PAGE 20
`PAGE 20
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`That basically he’s trying to find a way
`
`0 take
`
`this brand away from a company because of whatever he felt
`
`was
`
`in that
`
`trademark office as far as non—use of a mark,
`
`what you're elalt'
`
`Q
`
`I can’t
`
`to answer questions,
`
`unfortunately, Mr.
`
`And if it
`
`_
`
`'_o art
`
`that
`
`there was noneuse or
`
`the mark,
`
`would that
`
`_'
`
`.
`
`- opinion regarding Mr. Kaplan
`
`abuser of the system and a trtll?
`
`No.
`
`Why not?
`
`Just my opinion.
`
`care industry for exces
`
`
`
`Anything else forming the basis of that opinion?
`
`No.
`
`Mho else have you spoken to regarding Mr. Kaplan?
`
`Let me back up.
`
`You mentioned early in your testimony
`
`that
`
`.here were other people in the office and there were
`
`opinions being floating around regarding Mr. Kapian.
`r»I
`
`correct
`
`Is that
`
`A
`
`Q
`
`Kaplan?
`
`is correct.
`
`Okay. Who else were you talking to about Mr.
`
`A
`
`Probably ten or
`
`PAGE 21
`PAGE 21
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`Q
`
`Okay.
`
`And what were their names?
`
`Page 2?
`
`A
`
`They were involved with the new relaunch of
`
`the Sea
`
`a Ski brand after we acquired it.
`
`Q
`
`A
`
`What were their opinions?
`
`The same as mine.
`
`And to clarify, Lhat he was a troll and was abusing
`
`is that correct?
`
`Pretty much that was
`
`the g neral sentiment of
`
`everybody, because everybody obviously went online and
`
`checked out his history.
`
`Q
`
`That’s what
`
`I was
`
`tryinq to ask before. Are you
`
`aware of any other history that
`
`informs your belief that he
`
`abuses the system and is a troll?
`
`A
`
`Q
`
`Not specifically.
`
`Mr. Mercer, do you think you have a comprehensive
`
`knowledge of the facts of this case to make an opinion that
`
`he is quote
`
`unquote, stealing the brand?
`
`
`
`MS. SHYAVITZ: Objection.
`
`
`THs WIless:
`
`You can answer.
`
`I
`
`think I have enough facts and
`
`RYAN REPORTING
`
`
`
`knowled e abOJL what he’s tr in” to accom lish.
`g
`Y
`a
`p
`
`MR . GOLDMAN:
`
`Q
`
`Are you aware that Mr. Kaplan filed for a trademark
`
`application tor Sea 8 Ski?
`
`A
`
`Q
`
`No.
`
`So, what
`
`is your knowledge regarding Mr. Kaplan as
`
`PAGE 22
`PAGE 22
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`
`
`
`
`PAGE 23
`PAGE 23
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`
`
`PAGE 24
`PAGE 24
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`7.
`
`
`
`
`
`PAGE 25
`PAGE 25
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
` It!
`
`i
`
`I
`
`1-.
`
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`
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`
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`
`
`
`PAGE 26
`PAGE 26
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`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
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`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
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`PAGE 27
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`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
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`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
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`
`
`want
`
`to try to catch you off guard,
`
`that’s not my intention
`
`l
`
`2
`
`3
`
`4
`
`5
`
`6
`
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`here.
`
`So,
`
`if you want
`
`to take a minute to read each
`
`paragraph as I get
`
`to them,
`
`let me know. Okay?
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Q
`
`A
`
`Okay.
`
`Do you want
`
`to take a moment
`
`to read Paragra h 4?
`
`Yup, give me a second.
`
`Sure.
`
`Okay.
`
`Go ahead, Adam.
`
`How did you become acquainted with Mr. Gray?
`
`Met Mr. Gray in approximately 2003, 200fi, at one of
`
`the sun care conferences that are held annually.
`
`Q
`
`A
`
`What was the nature of the interaction?
`
`Initially, since I’ve been in this industry quite
`
`some time, welcoming him into the industry as the new owner
`
`of Gea & Ski
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`And Mitct is an extremely cerebral gentlemar
`
`that really
`
`loves technology, and I come from that background myself
`
`
`
`
`
`
`sun care products at
`that particular time. Mitch and I kind
`
`
`
`
`we were doing under the brand that
`I own, called Baby
`
`Blanket.
`
`
`If you’re familiar with the major brands in sun care,
`
` Coppertone being one of them,
`one of their major brands
`R‘I’ AM
`
`8
`
`because I
`
`like new driven technology with regards to topical
`
`of hit it Off early on.
`
`He also had a very strong interest in my technology that
`
`REPORTING
`
`PAGE 28
`PAGE 28
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`
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`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
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`PAGE 29
`PAGE 29
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
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`PAGE 30
`PAGE 30
`
`
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
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`PAGE 31
`PAGE 31
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
`
`ETAH PEEQETLHH
`
`PAGE 32
`PAGE 32
`
`
`
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`ATTORNEYS' EYES ONLY (TRADE SECRET/COMMERCIALLY SENSITIVE)
`
`DEPOSITION OF JAMES P. MERCER
`DEPOSITION OF JAMES P. MERCER
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