throbber
Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's email
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA Tracking number:
`
`ESTTA910890
`
`07/20/2018
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92065464
`Plaintiff
`Devgel Productions, LLC
`KIMBERLY P STEIN
`HOLLEY DRIGGS WALCH FINE WRAY PUZEY ET AL
`400 SOUTH FOURTH STREET, THIRD FLOOR
`LAS VEGAS, NV 89101
`UNITED STATES
`Email: tip@nevadafirm.com, kstein@nevadafirm.com,
`bearl@nevadafirm.com.cwarburton@nevadafirm.com
`Plaintiff's Notice of Reliance
`kstein@nevadafirm.com
`cwarburton@nevadafirm.com, mvellis@nevadafirm.com, tip@nevadafirm.com
`/Kimberly P. Stein/
`07/20/2018
`05-Notice of Reliance on Discovery Deposition of Kevin Demers.pdf(1955921
`bytes )
`06-Kevin Demers Exh 1-58_Part1.pdf(5319906 bytes )
`07-Kevin Demers Exh 1-58_Part2.pdf(3838080 bytes )
`08-Kevin Demers Exh 1-58_Part3.pdf(5118807 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the Matter of U.S. Trademark Registration No. 5067961
`For the Mark: ROCKPACK
`Registration Date: October 25, 2016
`
`DEVGEL PRODUCTIONS, LLC
`
`
`
`v.
`
`KDIM ENTERTAINMENT, INC.
`
`
`
`
`Petitioner,
`
`Cancellation No.
`
`
`
` 92065464
`
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`Respondent.
`)
`)
`
`PETITIONER'S NOTICE OF RELIANCE ON DISCOVERY DEPOSITION
`
`UNDER 37 C.F.R. § 2.120(k)
`
`Pursuant to Rule 2.120(k) of the Trademark Rules of Practice, 37 C.F.R. § 2.120(k),
`
`TBMP § 704.09, Petitioner Devgel Productions, LLC hereby makes of record and notifies
`
`Respondent of its reliance on:
`
`1.
`
`The discovery deposition of Kevin Demers the person most knowledgeable of
`
`Respondent, taken Wednesday, March 28, 2018, Thursday, March 29, 2018, and April 24, 2018
`
`attached hereto as Exhibit A.
`
`The following page and line references are in reference to Volume 1 of the Discovery
`
`Deposition of Kevin Demers, appearing individually and in his capacity as the person most
`
`knowledgeable of Respondent, for testimony taken on March 28, 2018 and March 29, 2018.
`
` Page 11, line 19 through page 15, line 18. This testimony is relevant to show that Kevin
`
`Demers is the person most knowledgeable of Respondent.
`
`
`
`1
`
`

`

` Page 28, line 11 through Page 28, line 13. This testimony is relevant to show the timing
`
`of formation of Respondent as a legal entity.
`
` Page 32, line 3 through page 32, line 21. This testimony is relevant to show the
`
`ownership of Respondent.
`
` Page 64, line 18 through Page 66, line 14. This testimony is relevant to show Kevin
`
`Demers’ limited role in the attempted production of a series of shows.
`
` Page 83, line 1 through Page 83 line 19. This testimony is relevant to show Respondent’s
`
`duties with respect to promotion of concerts for The Rock Pack Concert Series.
`
` Page 106, line 5 through Page 108, Line 6. This testimony is relevant to show
`
`Respondent’s knowledge of Petitioner’s trademark application for THE ROCK PACK.
`
` Page 108, Line 23 through Page 110 , line 19. This testimony is relevant to show
`
`Respondent’s admission that neither Respondent nor Kevin Demers created the slogan
`
`“Hit After Hit After Hit” and that John Payne created such slogan.
`
` Page 112, line 25 through Page 114, line 5. This testimony is relevant to show that
`
`neither Respondent nor Kevin Demers designed the logo for THE ROCK PACK which is
`
`the subject of Petitioner’s application.
`
` Page 115, line 12 through Page 115, line 19. This testimony is relevant to show that John
`
`Payne was not employed by Respondent and was retained as an independent contractor to
`
`serve as musical director for the show at the Germain Arena.
`
`
`
`2
`
`
`
`
`

`

` Page 126, line 2 through Page 127, line 18. This testimony is relevant to show that Kevin
`
`Demers and Ignacio Magana were the sole officers and directors of Respondent at the
`
`time of formation.
`
` Page 127, line 19 through page 128, line 10. This testimony is relevant to establish the
`
`date on which Ignacio Magana resigned as officer and director of Respondent.
`
` Page 142, line 7 through page 142, line 11. This testimony is relevant to show that Kevin
`
`Demers did not create the logo for THE ROCK PACK.
`
` Page 144, line 7 through Page 144, line 12. This testimony is relevant to show that John
`
`Payne was never involved in the formation of Respondent and never had any ownership
`
`in Respondent.
`
` Page 163, line 22 through Page 164, line 6. This testimony is relevant to show that John
`
`Payne was an independent contractor of KDIM.
`
` Page 166, line 19 through Page 167, line 18. This testimony is relevant to show John
`
`Payne’s anticipated future role in concerts promoted by Respondent.
`
` Page 168, line 16 through Page 169, line 6. This testimony is relevant to show John
`
`Payne’s relationship with Respondent.
`
` Page 172, line 4 through Page 174, line 11. This testimony is relevant to show the events
`
`leading to Petitioner’s termination of Respondent’s promoter services.
`
` Page 180, line 8 through Page 187, line 14. This testimony is relevant to show Kevin
`
`Demers’ initial communications with James Eicher, Ignacio Magana and John Payne
`
`regarding potential investment in an entity to produce certain shows.
`
`
`
`3
`
`
`
`
`

`

` Page 187, line 15 through Page 188, line 9. This testimony is relevant to show Kevin
`
`Demers’ inconsistent testimony regarding whether he reviewed a confidential private
`
`placement memorandum regarding potential investment in an entity to produce certain
`
`shows.
`
` Page 198, line 22 through Page 202, line 18. This testimony is relevant to show Kevin
`
`Demers’ knowledge regarding the prospective investment into an entity and the nature of
`
`shows which would be produced by the entity.
`
` Page 202, line 19 through Page 203, line 7. This testimony is relevant to show that Kevin
`
`Demers did not create the name Stairway, one of the potential shows created by John
`
`Payne.
`
` Page 205, line 18 through Page 207, line 10. This testimony is relevant to show that
`
`Kevin Demers reviewed a document regarding what Kevin Demers believed to be an
`
`investment in the show Jukebox and that Kevin Demers did not execute a subscription
`
`agreement.
`
` Page 208 , line16 through Page 209, line 5. This testimony is relevant to show that Kevin
`
`Demers ran a trademark search for the name of the Stairway show in 2014 and alleges to
`
`have first heard the name Rock Pack in August 2015.
`
` Page 213, line 22 through Page 214, line 7. This testimony is relevant to show that Kevin
`
`Demers originally ceased contact with John Payne and James Eicher around October 27,
`
`2014.
`
` Page 229, line 23 through Page 232, line 15. This testimony is relevant to show that
`
`Kevin Demers was corresponding with Mitchell Goldsmith in October of 2014.
`
`
`
`4
`
`
`
`
`

`

` Page 233, line 25 through Page 239, line 11. This testimony is relevant to show that
`
`Kevin Demers and John Payne were negotiating investment documents relating to an
`
`entity and that Kevin Demers testified to not sending emails to Mitchell Goldsmith.
`
` Page 259, line 5 through Page 259, line 14. This testimony is relevant to show that Kevin
`
`Demers has referred to and credited John Payne as the mastermind and creator of The
`
`Rock Pack.
`
` Page 259, line 15 through Page 259, line 22. This testimony is relevant to show that
`
`Kevin Demers marketed The Rock Pack as being created by John Payne.
`
` Page 260, line 24 through Page 262, line 7. This testimony is relevant to show that Kevin
`
`Demers stated on a talk show that John Payne was the mastermind of The Rock Pack.
`
` Page 263, line 22 through Page 266, line 25. This testimony is relevant to show that
`
`Kevin Demers and Ignacio Magana did not correct the statement that John Payne was the
`
`creator of The Rock Pack and referred to Respondent as the Promoter of the concert.
`
` Page 267, line 1 through Page 267, line 5. This testimony is relevant to show that Kevin
`
`Demers and Respondent did not prepare or present an agreement to John Payne to
`
`purchase the name for The Rock Pack.
`
` Page 267, line 12 through Page 267, line 19. This testimony is relevant to show that there
`
`has been no written assignment agreement between John Payne and Respondent.
`
` Page 267, line 21 through Page 269, line 5. This testimony is relevant to show that John
`
`Payne objected to the wording in an article that characterized Respondent’s principals as
`
`the mastermind of The Rock Pack.
`
`
`
`5
`
`
`
`
`

`

` Page 273, line 8 through Page 273, line 15. This testimony is relevant to show that John
`
`Payne directly arranged for musicians to appear at concerts without going through agents
`
`and that John Payne had contacts with artists who performed at the shows.
`
` Page 286, line 4 through Page 286, line 18. This testimony is relevant to show that Kevin
`
`Demers contracted with the venues for performances of the concerts.
`
` Page 287, line 1 through Page 290, line 13. This testimony is relevant to show that
`
`Respondent’s contract with Germain Arena did not mention The Rock Pack.
`
` Page 290, line 21 through Page 293, line 13. This testimony is relevant to show that the
`
`only written agreement between Respondent and John Payne was for a show titled Vegas
`
`Rocks Tampa.
`
` Page 293, line 22 through Page 296, line 13. This testimony is relevant to show that
`
`Respondent was in negotiation stages for a concert at the USF Arena in Tampa and that a
`
`draft agreement existed listing “John Payne, The Rock Pack, independent contractor” as
`
`the counterparty to the agreement.
`
` Page 298, line 12 through Page 298, line 22. This testimony is relevant to show that John
`
`Payne terminated his relationship with Respondent in February of 2016.
`
` Page 305, line 6 through Page 309, line 17. This testimony is relevant to show that
`
`Respondent and its principals never objected to John Payne’s inclusion of “creator of The
`
`Rock Pack” in John Payne’s email signature.
`
` Page 338, line 9 through Page 339, line 20. This testimony is relevant to show that John
`
`Payne discussed the Writers Guild of America with Kevin Demers in 2014.
`
`
`
`6
`
`
`
`
`

`

` Page 341, line 1 through Page 346, line 3. This testimony is relevant to show that John
`
`Payne asserted ownership rights to the intellectual property related to The Rock Pack
`
`prior to Respondent submitting its trademark application, filed with the United States
`
`Patent and Trademark Office on March 17, 2016 (“KDIM Application”).
`
` Page 346, line 7 through Page 348, line 14. This testimony is relevant to show that John
`
`Payne expressed concerns over the use of intellectual property in a billboard design for
`
`the Germain Arena concert in 2015.
`
` Page 349, line 2 through Page 350, line 9. This testimony is relevant to show that Lee
`
`Evans, on behalf of Petitioner, asserted ownership rights related to The Rock Pack prior
`
`to Respondent’s submission of the KDIM Application.
`
` Page 361, line 19 through Page 362, line 4. This testimony is relevant to show that
`
`Respondent intended to interfere with Petitioner’s contract with the Westbury Theatre.
`
`
`
`The following page and line references are in reference to Volume 2 of the Discovery
`
`Deposition of Kevin Demers, appearing individually and in his capacity as the person most
`
`knowledgeable of Respondent, for testimony taken on April 24, 2018.
`
` Page 384, line 7 through page 388, line 12. This testimony is relevant to establish that
`
`Kevin Demers had knowledge of the KDIM Application and the information contained
`
`therein, and reviewed all information in application prior to filing.
`
` Page 388, line 13 through page 391, line 25. This testimony is relevant to establish
`
`Respondent’s timing for filing the KDIM Application, date of filing the KDIM
`
`Application, and prior trademark searches.
`
`
`
`7
`
`
`
`
`

`

` Page 393, line 2 through page 401, line 1. This testimony is relevant to establish that
`
`Respondent has failed to use the trademark “ROCKPACK” (the “KDIM Mark”) in
`
`commerce and KDIM has not put on any The Rock Pack shows in the United States since
`
`the first show on November 19, 2015 at the Germain Arena with John Payne.
`
` Page 401, line 2 through page 402, line 18. This testimony is relevant to establish that
`
`Respondent had knowledge that Petitioner continued to produce additional The Rock
`
`Pack shows in the United States after the November 19, 2015 show.
`
` Page 404, line 9 through page 404, line 14. This testimony is relevant to establish that
`
`Respondent has failed to use the KDIM Mark in commerce and Respondent has not put
`
`on any The Rock Pack shows in the United States since the first show on November 19,
`
`2015 at the Germain Arena with John Payne.
`
` Page 409, line 10 through page 411, line 20. This testimony is relevant to establish that
`
`Respondent had knowledge of the Petitioner’s trademark application.
`
`
`
` Page 411, line 22 through page 413, line 10. This testimony is relevant to establish
`
`Petitioner’s allegations regarding its first use in commerce.
`
` Page 415, line 25 through page 416, line 3. This testimony is relevant to establish that
`
`Respondent used “Rock Pack”, two words, to promote the November 19, 2015 show at
`
`the Germain Arena in Florida.
`
` Page 416, line 24 through Page 421, line 18. This testimony is relevant to show
`
`Respondent’s alleged use of the KDIM Mark.
`
` Page 427, line 12 through page 429, line 9. This testimony is relevant to show promotion
`
`of The Rock Pack for the November 19, 2015 show.
`
`
`
`8
`
`
`
`
`

`

` Page 429, line 10 through page 431, line 20. This testimony is relevant to establish
`
`Respondent’s website and Respondent’s continued infringement and use of The Rock
`
`Pack Mark in promotion with concerts.
`
` Page 432, line 18 through page 433, line 21. This testimony is relevant to show
`
`Respondent’s promotion of live music concerts using “Rock Pack”, two words, and the
`
`slogan “Hit After Hit After Hit”.
`
` Page 441, line 25 through page 442, line 6. This testimony is relevant to establish that
`
`Respondent had knowledge of therockpack.com.
`
` Pg 455, line 25 through page 460 line 10. This testimony is relevant to show
`
`Respondent’s unauthorized use of artists’ names on its website.
`
` Page 460, line 14 through page 466, line 10. This testimony is relevant to establish
`
`confusion and KDIM’s knowledge of the ongoing confusion.
`
` Page 472, line 12 through page 473, line 24. This testimony is relevant to establish that
`
`Respondent never responded to the September 13, 2015 email from John Payne, wherein
`
`John Payne clearly asserted his rights to The Rock Pack Mark.
`
` Page 476, line 13 through page 477, line 14. This testimony is relevant to show that
`
`KDIM attempted to register the domain name therockpack.com and to establish KDIM’s
`
`knowledge that therockpack.com domain was previously taken by Devgel.
`
` Page 482, line 9 through page 489, line 17. This testimony is relevant to show John
`
`Payne’s involvement and role in approving all marketing and promotional materials for
`
`the November 19, 2015 Rock Pack Concert
`
`
`
`9
`
`
`
`
`

`

` Page 495, line 4 through page 502, line 8. This testimony is relevant to establish that
`
`Respondent had clearlyknowledge of, and were in agreement with, Payne asserting rights
`
`and ownership in The Rock Pack.
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` Page 502, line 9 through page 507, line 25. This testimony is relevant to establish John
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`Payne and Kevin Demer’s relationship from August 2015 through present.
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` Page 509, line 6 through page 514, line 23. This testimony is relevant to establish Kevin
`
`Demer’s contact with Paradise Artists regarding alleged “copyright infringement”
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`regarding various artists, including John Payne featuring Asia.
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` Page 515, line 24 through Page 518, line 7. This testimony is relevant to establish Kevin
`
`Demers’ relationship with Mitchell Goldsmith and Kevin Demers’ review of investment
`
`documents.
`
` Page 538, line 10 through page 538, line 25. This testimony is relevant to establish that
`
`KDIM has not produced any live concerts since the November 19, 2015 show through
`
`April 24, 2018, the date of Kevin Demers’ deposition.
`
` Page 540, line 12 through page 541, line 15. This testimony is relevant to establish
`
`Kevin Demers’ lack of experience and knowledge in the music and entertainment
`
`industry.
`
`
`
`The following references are in reference to Exhibits to the both Volume 1 and
`
`Volume 2 of the Discovery Deposition of Kevin Demers, appearing individually and in his
`
`capacity as the person most knowledgeable of Respondent.
`
` Petitioner’s Deposition Exhibit 10 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of corporate documents relating to
`
`
`
`10
`
`
`
`
`

`

`Respondent, is relevant to establish dates and corporate officers and directors of
`
`Respondent.
`
` Petitioner’s Deposition Exhibit 14 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of documentation of a trademark
`
`search performed by Kevin Demers, is relevant to show that Kevin Demers did not
`
`perform a trademark search for “Rock Pack” until December of 2015.
`
` Petitioner’s Deposition Exhibit 29 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of Kevin Demers’ handwritten
`
`notes on a mock billboard for the November 19, 2015 Germain Arena Concert and to
`
`establish that John Payne exerted approval rights and creative control over the marketing
`
`of The Rock Pack concert.
`
` Petitioner’s Deposition Exhibit 30 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of email correspondence from Lee
`
`Evans to Kevin Demers and Ignacio Magana is relevant to show that Petitioner asserted
`
`ownership rights to The Rock Pack Mark prior to Respondent submitting its trademark
`
`application.
`
` Petitioner’s Deposition Exhibit 31 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of various publications and
`
`articles regarding the November 19, 2015 Germain Arena concert, is relevant to establish
`
`the means by which the concert was marketed and promoted and to establish the creator
`
`of The Rock Pack Mark.
`
`
`
`11
`
`
`
`
`

`

` Petitioner’s Deposition Exhibit 33 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of two video files, is relevant to
`
`show that Respondent acknowledges John Payne as the creator of the Rock Pack Mark.
`
`The first video file is a recording of an interview conducted on October 23, 2015 between
`
`Carley Wegner of Fox 4, as well as John Payne and Kevin Demers. The second video file
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`is a recording of an interview conducted on November 18, 2015 between Carley Wegner,
`
`Kevin Demers, and Ignacio Magana. Petitioner’s Deposition Exhibit 33 to the discovery
`
`deposition of Kevin Demers the person most knowledgeable of Respondent have been
`
`mailed separately to the TTAB.
`
` Petitioner’s Deposition Exhibit 38 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of photographs of billboard
`
`designs created for The Rock Pack show held on November 19, 2015 , is relevant to show
`
`that all promotion of the November 19, 2015 show included “Rock Pack”, two words.
`
` Petitioner’s Deposition Exhibit 39 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of a printout from Respondent’s
`
`website - KDIMentertainment.com, is relevant to Respondent’s continued infringement
`
`and use of The Rock Pack Mark.
`
` Petitioner’s Deposition Exhibit 40 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of a rack card used on
`
`Respondent’s website, is relevant to establish Respondent’s continued infringement and
`
`use of The Rock Pack Mark.
`
`
`
`12
`
`
`
`
`

`

` Petitioner’s Deposition Exhibit 41 to the discovery deposition of Kevin Demers the
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`person most knowledgeable of Respondent, comprised of a digital capture of
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`kdimentertainment.com captured on October 10, 2017, is relevant to establish the
`
`existence of confusion between the marks and Respondent’s continued infringement of
`
`The Rock Pack Mark.
`
` Petitioner’s Deposition Exhibit 43 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of screenshots of Respondent’s
`
`website, is relevant to establish the existence of confusion between the marks and
`
`Respondent’s continued infringement of The Rock Pack Mark.
`
` Petitioner’s Deposition Exhibit 44 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of a screenshot of an Eventful
`
`page for the Classic Rock Series in Estero, is relevant to establish Respondent’s role as a
`
`promoter for the November 19, 2015 show and John Payne’s role as creator of The Rock
`
`Pack.
`
` Petitioner’s Deposition Exhibit 45 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of an email from Devgel’s counsel
`
`to KDIM’s counsel and attached letter, is relevant to establish confusion and KDIM’s
`
`knowledge of the ongoing confusion.
`
` Petitioner’s Deposition Exhibit 53 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of email correspondence between
`
`John Payne, Kevin Demers, Ignacio Magana, and various marketing personnel retained
`
`by Respondent. This exhibit is relevant to show that John Payne controlled the marketing
`
`
`
`13
`
`
`
`
`

`

`of the Germain Arena concert, the use of The Rock Pack Mark in advertisements, and
`
`that Kevin Demers acknowledged mistakes in statements made in press releases and
`
`documents for marketing of Germain Arena Concert.
`
` Petitioner’s Deposition Exhibit 54 to the discovery deposition of Kevin Demers the
`
`person most knowledgeable of Respondent, comprised of email correspondence between
`
`John Payne, Kevin Demers, Ignacio Magana, and various marketing personnel retained
`
`by Respondent. This exhibit is relevant to show that John Payne controlled the marketing
`
`of the Germain Arena concert, the use of The Rock Pack Mark in advertisements, and
`
`that Kevin Demers acknowledged mistakes in statements made in press releases and
`
`documents for marketing of Germain Arena Concert.
`
`
`
`Dated this 20th day of July, 2018.
`
`
`
`
`
`
`
`
`
`Respectfully submitted,
`
`HOLLEY DRIGGS WALCH
`FINE WRAY PUZEY & THOMPSON
`
`By:
`
`
`
`
`
`
`
`
`/s/Kimberly P. Stein
`Kimberly P. Stein, Esq.
`Bryce K. Earl, Esq.
`Christopher M. Warburton, Esq.
`400 South Fourth Street, Third Floor
`Las Vegas, Nevada 89101
`Attorneys for Petitioner
`
`
`
`
`
`
`
`14
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`
`
`

`

`EXHIBIT A
`
`DISCOVERY DEPOSITION OF KEVIN DEMERS AND PERSON MOST
`KNOWLEDGEABLE OF KDIM ENTERTAINMENT, INC.
`
`[See Attached]
`
`
`
`
`
`

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`Kevin Demers & 30(b)(6) KDIM Entertainment
`
` IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
` DEVGEL PRODUCTIONS, LLC, Cancellation No. 92065464
`
` Petitioner,
`
` vs.
`
` KDIM ENTERTAINMENT, INC.
`
` Respondent.
`
` __________________________/
`
` VIDEOTAPED DEPOSITION OF
`
` KEVIN DEMERS
`
` AND
`
` 30(b)(6) OF KDIM ENTERTAINMENT, INC.
`
` Wednesday, March 28, 2018
`
` 4:27 p.m. to 5:35 p.m.
`
` and
`
` Thursday, March 29, 2018
`
` 8:46 a.m. to 5:24 p.m.
`
` REPORTED BY:
`
` SUSAN J. SIMONETTI
`
` Job No. 2838056
`
`Pages 1 - 371
`
`Veritext Legal Solutions
`877-955-3855
`
`Page 1
`
`

`

`Kevin Demers & 30(b)(6) KDIM Entertainment
`
`APPEARANCES:
`
`ON BEHALF OF PETITIONER:
`
` KIMBERLY STEIN, ESQ.
`
` Holley Driggs Walch Fine Wray
`
` Puzey & Thompson
`
` 400 South Fourth Street Suite 300
`
` Las Vegas, Nevada 89101
`
` Kstein@nevadafirm.com
`
`ON BEHALF OF RESPONDENTS:
`
` STEPHEN L. HUMPHREY, ESQ.
`
` Cameron LLP
`
` 818 Connecticut Avenue, Suite 500
`
` Washington, D.C. 20006
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` Shumphrey@cameronllp.com
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`ALSO PRESENT: Lee Evans
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` John Payne
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` I N D E X
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`Testimony of KEVIN DEMERS
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` Direct Examination by Ms. Stein 6
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`Kevin Demers & 30(b)(6) KDIM Entertainment
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` E X H I B I T S
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`NUMBER DESCRIPTION PAGE
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`Exhibit 1 Notice of Federal Rule of Civil Procedure
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` 30(b)(6) 13
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`Exhibit 2 Notice of Taking Deposition of Kevin Demers,
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` Managing Agent of Respondent, KDIM
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` Entertainment, Inc. 13
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`Exhibit 3 FindLaw - Demers v. Demers 39
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`Exhibit 4 U.S. District Court, Middle District
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` of Florida Druckmaschinen v Demers 53
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`Exhibit 5 Tune In and Sound Off with Kevin Demers 61
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`Exhibit 6 FindLaw - Demers v. State 68
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`Exhibit 7 Demers v. Czajkowski, Complaint 75
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`Exhibit 8 Court Records Inquiry, Demers v. Easton 84
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`Exhibit 9 Poster - The Rock Pack 112
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`Exhibit 10 State of Florida, Department of State -
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` Re: KDIM Entertainment 124
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`Exhibit 11 Email from Eicher, dated June 26, 2014 180
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`Exhibit 12 Text Message from 727-488-5546 188
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`Exhibit 13 Checks 196
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`Exhibit 14 Rock Pack - US Federal & State Trademark
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` Research 207
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`Exhibit 15 Checks 209
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`Exhibit 16 Checks 216
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`Kevin Demers & 30(b)(6) KDIM Entertainment
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` E X H I B I T S
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`NUMBER DESCRIPTION PAGE
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`Exhibit 17 Checks 217
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`Exhibit 18 Email from M Goldsmith 229
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`Exhibit 19 Email to John from Demers 233
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`Exhibit 20 Who Are We - KDIM Entertainment Exhibit 239
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`Exhibit 21 Germain Arena Licensing Agreement 286
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`Exhibit 22 KDIM Artist, Talent Contract 290
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`Exhibit 23 KDIM and Payne Agreement 293
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`Exhibit 24 KDIM and Payne Agreement 300
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`Exhibit 25 Email from J Payne/Devgel 305
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`Exhibit 26 Handwritten Notes 317
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`Exhibit 27 KDIM Agreement dated 8-18-15 323
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`Exhibit 28 Email to Demers from Payne
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` dated Sept. 13, 2015 340
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`Exhibit 29 Handwritten Notes 346
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`Exhibit 30 Email to Kevin and Iggy from Lee
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` dated Feb 27, 2016 348
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`Exhibit 31 Naples Daily News - Classic Rockers Unite
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` for Germain Arena Show Nov. 19 350
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`Exhibit 32 Email dated January 17, 2018 358
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`Exhibit 33 Flashdrive - TV Interviews 369
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`Kevin Demers & 30(b)(6) KDIM Entertainment
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` THE VIDEOGRAPHER: We are on the record. Time is
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` 4:27 p.m. Today is March 28th of 2018. We are here
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` today at 2402 Bay Street in Fort Myers, Florida for
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` the videotape deposition of Kevin Demers in the matter
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` of Devgel Productions, LLC, versus KDIM Entertainment,
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` Incorporated; Cancellation Number 92065464, to be
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` heard in the United States Patent and Trademark Office
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` before the Trademark Trial and Appeal Board.
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` Your court reporter today is Susan Simonetti, here
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` on behalf of Veritext Legal Solutions.
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` I'm Alan Pokotilow, a forensic videographer, today
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` here on behalf of Veritext Legal Solutions as well.
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` Will counsel please state your name and
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` affiliation for the record, after which our court
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` reporter will swear the witness and we can proceed.
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` MS. STEIN: Kimberly Stein on behalf of Devgel
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` Productions, LLC, petitioner; and also with me is Mr.
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` John Payne and Mr. Lee Evans of Devgel.
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` MR. HUMPHREY: Stephen Humphrey, attorney for
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` KDIM, the respondent in this action.
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`Thereupon:
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` KEVIN DEMERS,
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`having been first duly sworn or affirmed, as hereinafter
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`certified, testified as follows:
`
`//
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`Kevin Demers & 30(b)(6) KDIM Entertainment
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` DIRECT EXAMINATION
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`BY MS. STEIN:
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` Q Good afternoon.
`
` A Good afternoon.
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` Q Can you please state and spell your name for the
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`record.
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` A Kevin, K-e-v-i-n, Stanley, S-t-a-n-l-e-y, Demers,
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`D-e-m-e-r-s.
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` Q And, Mr. Demers, I apologize, I think everybody
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`has pronounced your name differently today.
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` A Yeah, it gets beat up.
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` Q Is it okay if I call you Kevin?
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` A Please.
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` Q And as you know, my name is Kim Stein, and I
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`represent Devgel Productions, and I will be taking your
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`deposition today, and I think you've sat here through two
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`depositions, but I'm going to go through a couple
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`questions preliminarily.
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` First, are you on any medication that affects your
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`ability to understand my questions today?
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` A None, none, none.
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` Q Have you ever been convicted of a felony?
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` A Convicted, no.
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` Q Have you been arrested for a felony?
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` A Yes.
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`Kevin Demers & 30(b)(6) KDIM Entertainment
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` Q And did that felony involve fraud, dishonesty or
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`crime of moral turpitude?
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` A No.
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` MR. HUMPHREY: Excuse me, I thought we just
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` discussed outside the room that you would explain what
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` deposition you're taking. You had noticed a
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` 30(b)(6) and --
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` MS. STEIN: I will.
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` MR. HUMPHREY: -- Kevin individually.
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` MS. STEIN: I'm asking preliminary questions under
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` deposition's rules.
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` MR. HUMPHREY: The deposition has started now. I
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` just want to understand whether you're taking the one
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` or the other or if you want to combine the two.
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` MS. STEIN: I'm going to combine them, but I will
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` talk to him after I get through preliminary questions.
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` Thank you.
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` THE WITNESS: Thank you, Steve, for bringing that
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` up. I need to know that.
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`BY MS. STEIN:
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` Q You will, and again, this has nothing to do --
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`this is preliminary questions.
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` So in any event, have you ever had your deposition
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`taken before?
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` A Yes, I have.
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`Kevin Demers & 30(b)(6) KDIM Entertainment
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` Q How many times?
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` A I'd say three or four.
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` Q When was the last time you had your deposition
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`taken?
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` A The last time? I have actually -- I have actually
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`-- I have actually been the depositioner several times.
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`The last time I was a depositionee I don't remember. I
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`don't remember the last time I was a depositionee.
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` Q Okay. And you said -- so you've been the person
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`that was taking someone's deposition?
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` A Correct. Correct.
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` Q But you've had your deposition taken of you
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`before?
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` A Oh, boy. I've got to keep them not confused, a
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`being depositioner and depositionee. I have got to try to
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`factor out the depositioner. I would say -- I can't
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`recall. I have been, though.
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` Q Okay. And when you said that you have been the
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`person taking the deposition, were you represented by
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`counsel?
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` A At that point probably was, but I can't remember
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`when I was a depositionee.
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` Q No, when you were even taking the deposition. You
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`said you took three or four depositions?
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` A Oh, yeah. See, I didn't hear the question.
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