Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA990033
`
`Filing date:
`
`07/24/2019
`
`Proceeding
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`92065034
`
`Plaintiff
`Evident Inc.
`
`MARVIN GELFAND
`WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN
`10250 CONSTELLATION BLVD STE 2900
`LOS ANGELES, CA 90067
`UNITED STATES
`mgelfand@weintraub.com, dmoreno@weintraub.com, trade-
`marks@weintraub.com
`310-860-3325
`
`Other Motions/Papers
`
`Marvin Gelfand
`
`mgelfand@weintraub.com, gjudd@weintraub.com, dmoreno@weintraub.com
`
`/marvingelfand/
`
`07/24/2019
`
`Exhibit A to the Motion for Leave to Use Testimony from Another Proceed-
`ing.PDF(5750980 bytes )
`
`
`
`ESTTA Tracking number:
`
`ESTTA990033
`
`Filing date:
`
`07/24/2019
`
`Proceeding
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`92065034
`
`Plaintiff
`Evident Inc.
`
`MARVIN GELFAND
`WEINTRAUB TOBIN CHEDIAK COLEMAN GRODIN
`10250 CONSTELLATION BLVD STE 2900
`LOS ANGELES, CA 90067
`UNITED STATES
`mgelfand@weintraub.com, dmoreno@weintraub.com, trade-
`marks@weintraub.com
`310-860-3325
`
`Other Motions/Papers
`
`Marvin Gelfand
`
`mgelfand@weintraub.com, gjudd@weintraub.com, dmoreno@weintraub.com
`
`/marvingelfand/
`
`07/24/2019
`
`Exhibit A to the Motion for Leave to Use Testimony from Another Proceed-
`ing.PDF(5750980 bytes )
`
`
`
`
`
` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the Matter of U.S. Registration No.: 4893569
`Applicant’s Mark: EVIDENT
`
`
`
`EVIDENT INC.
`
`
`
`
`
`
`
`
`
` Cancellation No. 92065034
`
`
`
`
`
`Petitioner,
`
`
`
`
`
`v.
`COMPUTER PROGRAMS
`AND SYSTEMS, INC.,
`
`
`
`
`Respondent.
`
`PETITIONER’S MOTION FOR LEAVE TO USE TESTIMONY FROM ANOTHER PROCEEDING
`
`EXHIBIT A
`
`TRIAL TRANSCRIPTS FROM THE TRIAL PROCEEDING,
`Computer Programs and Systems, Inc. and Evident LLC v. Wazu Holdings, LTD. and
`Evident, Inc., Civil Action No. 1:15-cv-00405-KD-N, in the United States District Court for
`the Southern District of Alabama, Southern Division
`
`
`
`
`
`
`
`
`
`
` 1
`
`IN THE UNITED STATES DISTRICT COURT
`
`SOUTHERN DISTRICT OF ALABAMA
`
`SOUTHERN DIVISION
`
`_____________________________________
` ) CIVIL NO. CV15-00405
`COMPUTER PROGRAMS AND SYSTEMS, INC.; ) COURTROOM 5A
`EVIDENT, LLC, ) U.S. FEDERAL COURTHOUSE
` ) MOBILE, ALABAMA
` PLAINTIFFS, ) APRIL 16, 2018
` )
` VS. )
` )
`
`WAZU HOLDINGS, LTD.; EVIDENT, INC., )
`
`)
` DEFENDANTS.
`)
`_____________________________________)
`
`
`JURY TRIAL
`BEFORE THE HONORABLE KRISTI K. DuBOSE
`CHIEF UNITED STATES DISTRICT COURT JUDGE
`
`
`APPEARANCES:
`
`FOR COMPUTER PROGRAMS AND SYSTEMS, INC. and EVIDENT, LLC,
`PLAINTIFFS AND COUNTER-DEFENDANTS:
`
` Maynard Cooper & Gale, PC
` By: J. Walton Jackson, Esq.
` By: Jaime W. Betbeze, Esq.
` By: Evan Parrott, Esq.
` 11 North Water Street, Suite 24290
` Mobile, Alabama 36602
`
`FOR WAZU HOLDINGS, LTD. AND EVIDENT, INC.,
`DEFENDANTS AND COUNTER-CLAIMANTS:
`
` Weintraub Tobin Chediak Coleman Grodin Law Corporation
` By: Marvin Gelfand, Esq.
` By: Brittany J. Shugart, Esq.
` 10250 Constellation Boulevard, Suite 2900
` Los Angeles, California 90067
`
` Sirote & Permutt, P.C.
` By: T. Julian Motes, Esq.
` P.O. Drawer 2025
` Mobile, Alabama 36652
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
`
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`Proceedings reported by machine stenography.
`
`Transcript produced by computer.
`
`[April 16, 2018, 8:34 a.m. in open court.]
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`THE COURT: All right. If the jury would stand.
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`[Jurors duly sworn.]
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`THE CLERK: You may be seated.
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`THE COURT: All right. Pass out the jury charges.
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`THE CLERK: Yes, ma'am.
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`THE COURT: I'm handing you jury charges. I'd like
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`for you to -- I know each of you can read, but I would like for
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`you to follow along with me as I read these to you. These are
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`preliminary charges, and at the end of the case, I'm going to
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`give you a full set of charges.
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`All right. Now that you've been sworn, I need to
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`explain some basic principles about a civil trial and your duty
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`as jurors. These are preliminary instructions, and I'll give
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`you more detailed instructions at the end of the trial.
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`It's your duty to listen to the evidence, decide what
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`happened, and apply the law to the facts. It's my job to
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`provide you with the law you must apply, and you must follow
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`that law, even if you disagree with it. And you must decide
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`the case only on the evidence presented in the courtroom.
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`Evidence comes in many forms. It can be testimony
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`about what someone saw, heard, smelled. It can be an exhibit
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`or a photograph. It can be someone's opinion. Some evidence
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
`
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`may prove a fact indirectly. Indirect evidence is also called
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`circumstantial evidence, simply a chain of circumstances that
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`likely proves a fact.
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`As far as the law is concerned, it makes no
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`difference whether evidence is direct or indirect. You may
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`choose to believe or disbelieve either kind. Your job is to
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`give each piece of evidence whatever weight you think it
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`deserves.
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`Now, during the trial, you'll hear certain things
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`that are not evidence, and you must not consider them. First,
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`the lawyers' statements and arguments aren't evidence. In
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`their opening statements and closing arguments, the lawyers
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`will discuss the case. Their remarks may help you follow each
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`side's argument and presentation of evidence, but the remarks
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`themselves aren't evidence and shouldn't play a role in your
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`deliberations.
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`Second, the lawyers' questions and objections aren't
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`evidence. Only the witness' answers are evidence. Don't
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`decide that something is true just because a lawyer's questions
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`suggests that it is. For example, a lawyer may ask a witness
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`"You saw Mr. Jones run that red light, didn't you?" That
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`question is not evidence of what the witness saw or what
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`Mr. Jones did unless the witness agrees with it.
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`Now, there are rules of evidence that control what
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`the Court can receive into evidence. When a lawyer asks a
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`witness a question or presents an exhibit, the opposing lawyer
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`may object if he or she thinks the rules of evidence don't
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`permit it. If I overrule the objection, then the witness may
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`answer the question or the Court may receive the exhibit.
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`If I sustain the objection, then the witness cannot
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`answer the question and the Court cannot receive the exhibit.
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`When I sustain an objection to a question, you must ignore the
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`question and not guess what the answer might have been.
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`Sometimes I may disallow evidence -- this is called
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`striking evidence -- and order you to disregard or ignore it.
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`That means that you must not consider that evidence when you
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`are deciding the case.
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`Now, to reach a verdict, you may have to decide which
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`testimony to believe and which testimony not to believe. You
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`may believe everything a witness says, part of it, or none of
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`it.
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`When considering a witness' testimony, you may take
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`into account the witness' opportunity and ability to see, hear,
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`or know the things the witness is testifying about, the
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`witness' memory, the witness' manner while testifying, any
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`interest the witness has in the outcome of the case, any bias
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`or prejudice the witness may have, any other evidence that
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`contradicts the witness's testimony, the reasonableness of the
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`witness' testimony in light of all the evidence, and any other
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`factors affecting believability.
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`Now, this is a civil case. To help you follow the
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`evidence, I'll summarize the parties' positions. Wazu
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`Holdings, Limited, and Evident, Inc., claim that Computer
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`Programs and Systems, Inc., and Evident, LLC, which we'll call
`
`"CPSI," infringed on their trademark, and CPSI denies those
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`claims.
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`Now, Wazu/Evident have the burden of proving their
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`case by what the law calls a preponderance of the evidence.
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`That means that Wazu/Evident must prove that, in light of all
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`the evidence, what they claim is more likely true than not.
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`So if you can put the evidence favoring Wazu/Evident
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`and the evidence favoring CPSI on opposite sides of the
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`balancing scale, Wazu/Evident needs to make the scale tip to
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`their side. If Wazu/Evident fails to meet this burden, you
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`must find in favor of CPSI.
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`To decide whether any fact has been proved by a
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`preponderance of the evidence, you may, unless I instruct you
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`otherwise, consider the testimony of all witnesses regardless
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`of who called them and all exhibits that the Court allows
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`regardless of who produced them.
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`After considering all the evidence, if you decide a
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`claim or fact is more likely true than not, then the claim or
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`fact has been proved by a preponderance of the evidence.
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`While serving on the jury, you may not talk with
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`anyone about anything related to the case. You may tell people
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
`
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`that you are a juror and give them information about when you
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`must be in Court, but you must not discuss anything about the
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`case itself with anyone. You shouldn't even talk about the
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`case with each other until you begin your deliberations. You
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`want to make sure you've heard everything -- all the evidence
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`and the lawyers' closing arguments and my instructions on the
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`law -- before you begin deliberating.
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`You should keep in mind -- you should keep an open
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`mind until the end of the trial. Premature discussions may
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`lead to a premature decision.
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`Now, in this age of technology, I want to emphasize
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`that, in addition to not talking face-to-face to anyone about
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`the case, you must not communicate with anyone about the case
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`by any other means. And that's E-mail, text, Facebook, and so
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`forth.
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`Now, you also shouldn't Google or search online or
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`offline for any information about the case, the parties, or the
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`law.
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`And don't listen or read to the news about this case,
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`visit any places related to this case, or research any fact,
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`issue, or law related to this case.
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`And I'm going to stop there to emphasize this.
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`Throughout this case, you are going to hear probably terms
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`you've never heard before, and I know I have the habit of when
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`I've heard -- you know, when I hear a term that I've never
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`heard before, the first thing I do is go to Google to put it in
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`there to find out what that means. Right?
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`Well, I'm asking you -- in fact, telling you -- that
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`it will be a violation of your oath for you to start trying to
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`do research on the Internet about this case.
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`I will give you the law and, hopefully, the lawyers
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`will explain the case and then you'll understand it through the
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`witnesses. It is a difficult case. Trademark law is a
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`difficult area, but I've looked at the backgrounds of all the
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`jurors, and I'm confident that you'll be able to understand
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`this by the end of the case.
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`Now, it's very important that you understand why
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`these rules exist and why they are so important. You must base
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`your decision only on the testimony and other evidence
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`presented in the courtroom.
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`It's not fair to the parties if you base your
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`decision in any way on information you acquire outside the
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`courtroom. For example, the law often uses words and phrases
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`in special ways, so it's important that any definition you hear
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`come only from me and not from any other source.
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`Only you jurors can decide a verdict in this case.
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`The law sees only you as fair, and only you have promised to be
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`fair. No one else is so qualified.
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`If you wish, you may take notes to help you remember
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`what the witnesses said. If you do take notes, please don't
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`share them with anyone until you go to the jury room to decide
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`the case. Don't let note-taking distract you from carefully
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`listening to and observing the witnesses. And when you leave
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`the courtroom, you should leave your notes in your chair.
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`Now, in order that you might better understand, at
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`the beginning of the case, the nature of the decisions that
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`you'll be asked to make and how you should go about making
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`them, I would like to give you some preliminary instructions on
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`the law. Now, the claim, as you were told at jury selection,
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`this case involves a trademark dispute.
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`A "trademark" is a word, name, symbol, or any
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`combination of these items that indicates the source of goods.
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`A trademark identifies and distinguishes goods or
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`services as the product of a particular manufacturer or
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`merchant, and it protects its goodwill.
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`Now, Wazu/Evident claims that CPSI infringed on their
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`unregistered common law trademark by false designation of
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`origin.
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`Even if a mark is not federally registered, the use
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`of another's unregistered trademark, also called a common law
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`trademark, can constitute a violation of trademark law.
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`False designation of origin occurs where an entity's
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`unregistered trademarks are so associated with its goods that
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`the use of the same or similar trademarks by another entity
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`constitutes a false representation that its goods came from the
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
`
`
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`same source.
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`Specifically, the law provides that any person who,
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`on or in connection with any goods or services, uses in
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`commerce any word, term, name, symbol, or any combination
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`thereof or any false designation of origin which is likely to
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`cause confusion or to cause mistake or deceive -- or to deceive
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`as to the affiliation, connection, or association of such
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`person with another person or as to the origin, sponsorship, or
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`approval of his or her goods, services, or commercial
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`activities by another person shall be liable in a civil action
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`by any person who believes that he or she is likely to be
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`damaged by such act.
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`All right. That's a very convoluted act. So I've
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`broken it down for you. Basically, to establish its claim,
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`Wazu/Evident must show that they had an enforceable trademark
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`right in the name or mark; and, 2, that CPSI made unauthorized
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`use of it such that consumers were likely to confuse the two.
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`Those are the two things that Wazu/Evident must prove.
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`Now, with respect to the first element, enforceable
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`trademark rights, common law trademark rights accrue only
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`through actual prior use in commerce. To establish prior use,
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`Wazu/Evident must show the adoption of the mark and the use of
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`the mark in a way sufficiently public to identify or
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`distinguish the marked goods in an appropriate segment of the
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`public mind as those of the adopter of a mark. If there's no
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`
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`valid and enforceable trademark, there is no infringement
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`claim.
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`Now, with respect to the second element, with respect
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`to the likelihood of confusion, there's seven things you should
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`be considering throughout this case, and you are going to hear
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`evidence on these.
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`One is the type of mark. Whether the relationship
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`between the name and the service or good it describes is
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`generic, descriptive, suggestive, or arbitrary. Of the listed
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`designations, that is, generic, descriptive, suggestive, or
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`arbitrary, a generic mark is the weakest and has the least
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`protection, and an arbitrary mark is the strongest.
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`Now, CPSI claims that Wazu/Evident's mark is, at
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`best, suggestive. Evident claims its mark is arbitrary.
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`So a suggestive trademark hints at, rather than
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`describes, the intended use or characteristic of the underlying
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`good. If a consumer's imagination is necessary to make the
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`connection between the trademark and the goods, then the
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`trademark suggests the feature of the goods. An example of a
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`suggestive trademark is Trek for a bicycle company because Trek
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`suggests something to do with a bicycle.
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`Now, an arbitrary mark is a trademark that is a real
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`word but has no logical relationship to the underlying goods.
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`Examples of an arbitrary trademark is Domino for sugar or Apple
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`for computers.
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
`
`
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` 11
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`Now, the other thing -- like I said, there are seven
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`factors you are to consider to determine whether there's a
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`likelihood of confusion -- is a similarity of the marks based
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`on the overall impressions the marks create, sound, appearance,
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`manner in which they are used.
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`Third, the similarity of the goods and services
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`offered, whether the products are the kind the public
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`attributes to a single source.
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`Similarity of actual sales methods, parties' retail
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`outlets, trade channels and customers -- where, how, and to
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`whom the parties' products are sold.
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`Similarity of advertising media. Each party's method
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`of advertising to determine whether there is likely to be a
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`significant enough overlap in the respective target audiences
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`such that a possibility of confusion could result.
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`Six, whether CPSI had the intent to misappropriate
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`Wazu/Evident's goodwill.
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`Whether CPSI had a conscious intent to capitalize on
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`Wazu/Evident's business reputation, was intentionally blind, or
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`otherwise manifested improper intent.
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`And, seven, the existence and extent of actual
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`confusion among the consuming public, whether there's evidence
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`that consumers were actually confused.
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`Now, the type of mark, which is No. 1, and the
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`evidence of actual confusion are the most important
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`considerations.
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`Now, the trial will proceed as follows: First each
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`side may make an opening statement. Remember that an opening
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`statement is not evidence. It isn't supposed to be
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`argumentative. It's just an outline of what the parties intend
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`to prove.
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`Next, Wazu/Evident will present their witnesses and
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`ask them questions.
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`After Wazu/Evident questions a witness, CPSI may ask
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`the witness questions. This is called cross-examining the
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`witness.
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`Then CPSI will present their witnesses, and
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`Wazu/Evident may cross-examine them.
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`You should base your decision on all the evidence
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`regardless of which party presented it.
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`Now, after the evidence is in, the parties' lawyers
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`will present their closing arguments to summarize and interpret
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`the evidence for you, and then I'll give you the instructions
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`on the law. And then you'll go to deliberate.
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`Now, when you were selected, we told you that we
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`expect the case to last five days, and I'll make every effort
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`to expedite the trial and keep it within those five days.
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`Now we are going to begin the trial by turning to the
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`plaintiff, Wazu/Evident, to begin with their opening statement.
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`MR. GELFAND: May it please the Court? Ladies and
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`gentlemen of the jury, my client, Evident, Inc., started using
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`the trademark "Evident" in 2010 as its brand for its software
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`in the healthcare industry, specifically then for dental
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`laboratories, and it contracted at that point with a
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`approximately 150 dental labs throughout North America, mostly
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`in the United States.
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`It promoted its brand, Evident, widely and especially
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`through the Internet on the World Wide Web.
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`About five years later, in 2015, CPSI rebranded its
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`software in the healthcare system, its EHR system, as
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`"Evident," the same exact brand, the same exact spelling, the
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`same exact word.
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`It did so even though its lawyer says that the
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`company knew about my client Evident, Inc.'s use of the
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`"Evident" brand.
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`And you will hear in this case CPSI's representative
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`and lawyer testified that they adopted the brand. And they are
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`going to tell you and the evidence will show that they adopted
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`it without doing any research into the full scope of evidence
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`of my client's business other than merely looking at its Web
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`site.
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`They did not do any research into Evident's plans for
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`future growth. They did not do any research into how much or
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`what type of dental work took place at the hospitals under
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`contract with CPSI, dental work, like cancer surgery, birth
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`defect surgery, accident reconstruction surgery. They didn't
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`do any research as to the type of work that their hospitals did
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`with dental laboratories, my client's customers, or with
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`respect to its clinics and health organizations that provided
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`dental care.
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`CPSI adopted the Evident brand without doing any
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`research into determining whether, as a result of two separate
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`companies providing software services in the healthcare
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`industry under the same name, that there would be any
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`likelihood of confusion whatsoever as to the source and
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`affiliation of those products.
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`And the evidence will show that they did not, as one
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`of the things that they didn't do in selecting this name, is
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`they didn't pick up the phone to call my client to try to
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`determine, before starting to use their brand, whether any
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`conflict of interest resulted.
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`When Evident, Inc., learned that CPSI had rebranded
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`itself as "Evident" and formed a company called Evident, LLC,
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`it asked CPSI to stop using its brand.
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`Within five days, and prior to any communication from
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`CPSI to Evident, CPSI filed a lawsuit in this court, and here
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`we are submitting to you the question of whether CPSI and
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`Evident, LLC's use of the Evident brand, as you've just been
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`instructed by the Court, is likely to cause confusion or to
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`cause mistake as to the affiliation, connection, or association
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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` 15
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`of the two companies or as to the origin or sponsorship of the
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`goods and services in the question.
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`Now, I'm going to spend my few minutes with you here
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`this morning by trying to give you a bit of a road map of what
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`you are going to see -- see and hear in the days ahead of you.
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`I'm going to share with you the evidence that we
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`believe establishes, no matter what the differences are between
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`the two software systems or the differences between the people
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`who purchase the systems, dental labs or hospitals, the use by
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`CPSI of the Evident brand will cause confusion or mistake as to
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`affiliation, connection, or association of the companies and as
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`to the origin and sponsorship of the software systems.
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`The evidence will also show you that the use by CPSI
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`of the Evident brand could keep Evident, Inc., from growing and
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`expanding its company and its goods and services.
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`Now, one thing that's clear that there won't be a
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`dispute about: My client, Evident, Inc., was here first. It
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`started using the brand widely in 2010 and had used it
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`consistently as Evident prior to the time CPSI, in 2015, began
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`to use it.
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`Now, you've heard talk about Wazu. Wazu Holding
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`Company is the company that ended up purchasing the stock of
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`Evident. So it's just -- it's a holding company, and it was
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`involved in this case because it was initially, as part of the
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`initial suit, sued by CPSI to determine whether or not they are
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`able to go forward using this brand.
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`But Evident, Inc., is the company that owns the
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`brand, and it has always operated under Evident, Inc., since it
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`formed in 2011.
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`Now, actually, we have to go back a step because
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`Evident formed around in 2007 under a different name. The
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`company was the brainchild of a family called the Goodfellows.
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`And Pat and Jane, the mother and father, had worked for years
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`in the software development business, and they worked for a
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`company called Henry Schein. And they had actually sold their
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`business to Henry Schein, their software business.
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`But when they retired from Henry Schein, they were
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`looking for an outlet with their family, and they started a new
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`business with their son Kurt, who you will hear from this
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`morning, and their daughter Tristan and their son-in-law-to-be,
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`Rayne Verity, and they started a new company coupled with a
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`company in England on a system that was called the Excelsior
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`system to sell to dental labs.
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`And they tried to create a software system that was
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`broader than that, but they wanted to get their entry in dental
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`laboratories because it was the business they were involved in
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`and knew very well.
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`Now, Kurt will share with you the history of the
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`family, the development of the software, and what his goals
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`were and the company's goals were for the future.
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`
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`He will tell you that in 2010, the family was sitting
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`around the kitchen table trying to come up with a name that
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`seemed better than "Excelsior" for the product, and "Evident"
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`appeared out of the blue.
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`And from that point forward, they used "Evident" as
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`their brand throughout North America and other places in the
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`world to brand their software product. The brand that they
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`used, Evident --
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`I think we need it a little lower. There we go.
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`Probably a little smaller.
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`THE CLERK: The dial right at the top. At the top,
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`where your hand is, where your left hand it. There you go.
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`MR. GELFAND: That's the brand, and that's the logo
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`that they adopted. Oh, they had taglines from time to time
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`that went along with it. They actually, at one particular
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`point, put a tooth in for the "N," but this was the brand they
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`consistently used to market the product. And they had it in a
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`very distinctive blue and green, as you can see.
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`Now, over the next few years, Evident attempted to
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`grow its business and improve its software, but to get to the
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`next level, it needed more resources than they had the ability
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`to provide.
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`And so Mr. -- or Goodfellow met an individual by the
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`name of Paolo Kalaw, and Mr. Kalaw owned a very large dental
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`lab called Frontier Dental. And Frontier was a customer of the
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`
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`Evident system.
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`And Mr. Kalaw will share with you his history in the
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`health industry and what brought him to that point, his initial
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`meetings with Kurt Goodfellow, the reason that he was
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`interested in the software that had been developed up until
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`that point. He'll share with you where he believes the history
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`of the healthcare industry is going and how it's growing and
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`how it's becoming more integrated. And he will share with you
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`how he believed the Evident system, which he thought it was
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`overbuilt for the dental lab industry, could really fit into
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`his goals.
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`So Mr. Kalaw, through a company that he owned that
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`was called Wazu Holdings, purchased the stock of Evident, Inc.
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`They started talking in 2014, and the purchase was completed in
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`2015.
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`He will talk a little bit about the growth of the
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`company since then, arrangements that he's now made from the
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`Hubb Insurance Brokers, one of the world's largest insurance
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`brokerages and Chubb Insurance Company to provide and to sell
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`insurance through the Evident system.
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`He will share with you why he believes the brand is
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`so important and his very real concerns as to why it can't be
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`used by another company in the same industry.
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`You'll also hear from an individual, Brenda Edwards.
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`Ms. Edwards is the Chief Financial Officer of Evident. She was
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`
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`brought in by Mr. Kalaw. They worked together years in the
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`past to complete the sale with the Goodfellows and has stayed
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`on to do a lot of the functions, financial and otherwise, in
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`the company.
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`She will tell you how the number of labs, since they
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`have acquired it, has grown from about 150 to more than 270
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`labs over the last two years. Again, mostly throughout North
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`America, about a dozen other places in the world, mostly in the
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`United States.
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`She will talk a little bit about the system and how
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`the system has grown and changed and the expanding relationship
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`that the dental labs have had with dentists through the portal
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`that's involved in the system.
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`Now, you will also hear from several employees of
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`CPSI. They will share with you their history. They will share
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`with you how they started as a business management system and
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`how their system has grown to an extremely sophisticated system
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`today from an EMR, Electronic Medical Records system, to when
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`they rebranded their program to an Electronic Health Records
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`system, and there's going to be no dispute as to the
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`sophistication of their product. It looks tremendous.
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`But you'll also hear about its branding process or
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`the rebranding process. They'll tell you that they felt that
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`CPSI seemed to be tired in the eyes of the community and that
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`it needed a lift. They hired a company called Brandlogic.
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT REPORTER
`MOBILE, ALABAMA 36602 (251) 690-3371
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`
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`Brandlogic was a company, an organization, that did two things.
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`One, it helped with the rebranding process, by rebranding the
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`name, but it also took the rebranding process and assisted CPSI
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`in the direction it would move the company.
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`Now, it took about two years to complete this whole
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`process with Brandlogic, and during that two years, CPSI had
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`dozens of names to consider. The testimony is going to be a
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`bit confusing as to how many and at what time, but at least one
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`document shows 70 potential names that they considered.
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`At some point it apparently was reduced to about 40,
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`according to some testimony. Then there's a list of 21 that
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`broke down the companies -- the company name, which they called
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`the alpha name, the system name that they called the beta name,
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`and their service name, which they called their gamma name.
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`And we saw a list of 21 companies. And, yet, through all the
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`choices that they had and all the names that they considered,
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`they ended up with a company name to select Evident.
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`And they not only selected the name "Evident," but
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`they also copied the exact color scheme of my client. That is
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`the Evident brand from CPSI with the blue/green color scheme
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`that works horizontally rather than vertically.
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`You'll meet Mr. Scott Schneider, who is the Executive
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`Vice President of CPSI, and he was the person who basically
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`headed the effort for the rebranding.
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`And Mr. Schneider is going to tell you that when this
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`MELANIE WILKINS, RMR, CRR, OFFICIAL COURT
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