Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA831702
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`Filing date:
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`07/06/2017
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`92065745
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`Party
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`Correspondence
`Address
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`Submission
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`Filer's Name
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`Filer's email
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`Signature
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`Date
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`Plaintiff
`DGL Group, Ltd.
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`ROBERT GARSON
`GARSON SEGAL STEINMETZ FLADGATE LLP
`164 WEST 25TH STREET #11R
`NEW YORK, NY 10001
`UNITED STATES
`Email: rg@gs2law.com, uri@dallalfirm.com
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`Opposition/Response to Motion
`
`Uri Dallal
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`uri@dallalfirm.com
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`/Uri Dallal/
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`07/06/2017
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`Attachments
`
`Opp. to Mot. to Set Aside Def w Ex.pdf(877766 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Cancellation No. 92065745
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`In the Matter of Registration No. 4482290
`For the mark: POWERBAR
`Registered: February 11, 2014
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`DGL Group, Ltd.,
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`Battery on the Go, Inc.,
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`Petitioner,
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`v.
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`Respondent.
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`PETITIONER’S OPPOSITION TO RESPONDENT’S MOTION TO SET ASIDE DEFAULT
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`The DGL Group, Ltd. (“DGL” or “Petitioner”), submits the following Memorandum of Law in
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`Opposition (“Opposition”) to the Motion to Set Aside Notice of Default1 (“Neglect Motion”) of Respondent
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`Battery on the Go, Inc. (“Respondent”). It is respectfully submitted that the Neglect Motion is wholly
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`without any merit and to permit the Notice of Default to be set aside in the pleaded circumstances would
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`render the excusable neglect standard meaningless.
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`INTRODUCTION
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`
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`Respondent moves to set aside the Notice of Default issued by the Board on May 20, 2017
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`pursuant to Fed. R. Civ. P. 55(c) and TBMP § 312.02 on the grounds that good cause exists and maintains
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`1 Assuming such a document satisfies TBMP §502.02(b) as embodying a brief
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`1
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`

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`that the delay in filing an answer was neither the result of willful conduct nor gross neglect on the part of
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`the Respondent, the Petitioner will not be substantially prejudiced by the delay, and the Respondent has
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`a meritorious defense to this action. While Respondent aptly shows in its submission to this Board the
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`clear presence of either attorney negligence or Respondent’s lackadaisical attitude, no excusable neglect
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`within the understanding of this Board exists. Undoubtedly, the Petitioner will be prejudiced since the
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`Respondent, a serial trademark infringer, is using the incorrectly registered trademark to pursue a
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`baseless case against DGL in the Eastern District of New York Civil action number 1:15-cv-05010-RML
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`(“EDNY Case”). As such, the Notice should not be set aside.
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`STATEMENT OF FACTS
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`
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`Petitioner filed a Petition to Cancel Respondent’s mark on March 24, 2017. Respondent was
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`notified of the Cancellation proceeding on March 31, 2017 by mail from the United States Patent and
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`Trademark Office (“USPTO”) Trial and Trademark Appeal Board, in addition to electronic notification via
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`the USPTO’s electronic trademark system. A month prior to the Petition, DGL and Respondent, along with
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`respective counsel, met at a mediation proceeding scheduled in the EDNY Case between Petitioner and
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`Respondent. Following the confidential portion of the mediation proceeding, Petitioner’s counsel, Robert
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`Garson, informed Respondent’s counsel, Alejandro Brito, that Petitioner intended to seek to cancel
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`Respondent’s mark and file a petition to cancel. See, Declaration of Robert Garson (“Garson Decl.”).
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`Therefore, the Respondent was well aware that such cancellation proceedings were imminent and had
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`ample time to prepare.
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`Respondent’s counsel does not (for it cannot) dispute that the Respondent was fully informed of
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`the cancellation proceedings. No less than four attorneys have been acting for Respondent with regards
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`to the EDNY Case, including Mr. Brito, Robert Zarco, and Beshoy Rizk who are signatories to the Neglect
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`Brief. Yet, none of the three otherwise capable attorneys were able to respond in a timely fashion to the
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`Petition. The firm representing Respondent in this proceeding is comprised of no less than six partners,
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`two associates, and six support staff. See (attorney page of www.zarcolaw.com attached as Garson Decl.
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`Ex. A). The Zarco Law firm styles itself as one of the best law firm in the USA and states “four of the firm’s
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`partners have been on The Best Lawyers of America list for several years.” Two of those partners, Messrs
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`Zarco and Brito, appear in this case.
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`Despite such acclaimed skill and achievements, none of members of Respondent’s counsel’s firm
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`that could have filed an answer did so. Despite Respondent’s counsel claims that such documentation
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`was timely prepared, without any detail as to what date that actually was, for it may have been that
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`Respondent sought to wait until the last day to file. Aside from allowing two months to elapse from the
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`date of Petitioner filed the Petition to Cancel to the date of Notice of Default, Respondent, waited 26
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`further days to file its motion to set aside default. With the raft of lawyers at his disposal, Respondent
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`could have requested an extension of time to file its response immediately upon his counsel being injured,
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`but failed so to do.
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`Furthermore, Respondent is a practiced litigant with a proven track record of missing deadlines
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`and suffering default. Even as recently as April 24, 2017, the Federal Court of Canada issued default
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`judgment as against the Respondent for Can$154,000 in actual and punitive damages plus Can$32,00
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`costs for copyright and trademark violations (judgment attached as Garson Decl. Ex. B). As such,
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`Respondent is well aware of the consequences of failing to adhere to deadlines.
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`As such, the Neglect Motion is simply insufficient in shouldering the lightest burden that the
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`neglect was excusable. Respondent’s motion should be denied.
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`3
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`ARGUMENT
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`INJURY TO ONE ATTORNEY AT AN EIGHT ATTORNEY FIRM AND FILING CONFUSION
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`MAY BE NEGLIGENCE BUT IS NOT EXCUSABLE NEGLECT.
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`The basic legal test is well trodden concerning the setting aside of a notice of default such as
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`requested in the Neglect Motion. See, Iodine Software, LLC v. Iodine, Inc., Opposition No. 91217516 (June
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`13, 2016) (The Board’s decision is attached as Garson Decl. Ex. C). In Iodine, the Board observed that the
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`“good and sufficient cause” standard is equivalent to the “excusable neglect” standard under FRCP
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`6(b)(1)(B) for re-opening of the testimony periods. See, Iodine. The Board, as usual, turned to the four-
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`factor test2 in Pioneer Inv. Serv. Co. v. Brunswick Assoc. Ltd., 507 U.S. 380 (1993), See, Iodine.
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`Under Pumpkin Ltd. v. The Seeds Corp., 43 USPQ2d 1582 (TTAB 1997), the standard to be applied
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`to Petitioner's motion is “whether petitioner has demonstrated excusable neglect for its failure to act.”
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`The Board has adopted the Supreme Court's four-factor test set out in Pioneer. The third factor, the reason
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`for the delay, is the most important. See, Pumpkin Ltd., 43 USPQ2d 1582, 1586 at fn.7 (TTAB 1997). In
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`Pumpkin, Although the Board found no evidence of bad faith, nor of prejudice to Respondent it found that
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`Petitioner had failed to show excusable neglect, and it denied the motion to re-open discovery. See,
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`Pumpkin Ltd., 43 USPQ2d 1582 (TTAB 1997).
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`In short, the Board has held that a party may claim excusable neglect only if the failure to timely
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`perform was due to circumstances beyond its reasonable control. The determination of what sorts of
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`neglect will be considered “excusable” is an equitable one, taking account of all relevant circumstances.
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`However, it has been held that the Court of Appeals erred in not attributing to a party the fault of its
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`2 Those factors include: (1) the danger of prejudice to the nonmovant; (2) the length of the delay and its potential
`impact on judicial proceedings; (3) the reason for the delay, including whether it was within the reasonable control
`of the movant, and (4) whether the movant acted in good faith. See e.g., Pumpkin Ltd. v. The Seed Corps,
`43 USPQ2d 1582, 1586 at fn.7 (TTAB 1997).
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`4
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`counsel; that is, clients may be held accountable for their attorney's acts and omissions. See, e.g., Link v.
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`Wabash R. Co., 370 U.S. 626. Thus, in determining whether respondents' failure to timely file was
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`excusable, the proper focus is upon whether the neglect of respondents and their counsel was excusable.
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`Respondent claims that (i) only one of at least three of Respondent’s attorneys was injured and
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`out of the office and (ii) Respondent’s attorneys were relying on Respondent to file a response to
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`Petitioner’s cancellation petition. Respondent fails to address why either of these claims are excusable
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`neglect. Mistaken belief as to the status of the proceedings is not reasonable and should not be excusable.
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`See, Prakash Melwani v. Allegiance Corporation, 97 USPQd 1537 (TTAB 2010) (finding that the mistaken
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`belief that proceedings were suspended was not reasonable and denying opposer’s request to reopen
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`proceedings); See also, Luster Products, Inc. v. John M. Van Zandt d/b/a Vanza USA, 104 USPQ2d 1877
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`(TTAB 2012) (when the reason for delay is within the control of the moving party, the failure to timely act
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`was not excusable neglect). Essentially, the Respondent should have done more than trust his misplaced
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`beliefs; instead he could have easily checked on the status of the proceeding and the motion.
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`Here, Respondent wishes to be protected by its own misplaced and unreasonable beliefs. That
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`one of the other two attorneys handling the matter or one of the other eight attorneys at the
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`Respondent’s counsel’s firm could not handle uploading an answer is not just unreasonable, it is
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`inexcusable and within the realms of negligence.3 The delay was well within the control of Respondent
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`but seemingly it could not be bothered to check with its counsel as to whether a vital response was filed.
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`Respondent or Respondent’s panoply of award-winning counsel could have easily checked the status of
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`this matter or made alternative arrangements. Respondent’s injured counsel could have followed up with
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`colleagues or Respondent by sending an email, a text or placing a telephone call4. He did not, nor did
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`3 Respondent states that the answer was allegedly prepared well in advance of the due date. See, Respondent’s
`Motion to Set Aside Notice of Default.
`4 While sympathy abounds, the injury pleaded is a broken arm which is not an injury inhibiting communication.
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`5
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`Respondent provide a reason for such failure. As such, Respondent should not be excused for failing so to
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`so.
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`Even if a claim of failure to respond in a timely fashion “was due to an impending death in his
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`family, email transmission problems with opposer’s counsel, and that applicant did not receive opposer’s
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`discovery requests,” the Board has found neglect to be inexcusable. E. & J. Gallo Winery v. Fine Spirits
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`Distribution, LLC, Opposition No. 91175854 (May 22, 2008) (the Board’s decision is attached as Garson
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`Decl. Ex. D). In E. & J. Gallo Winery, the Board applied the excusable neglect standard of Pumpkin, which
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`adopted the Supreme Court's four-factor test regarding excusable neglect as set out in Pioneer. The Board
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`noted that “several courts have stated that the third Pioneer factor, namely the reason for the delay and
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`whether it was within the reasonable control of the movant, might be considered the most important
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`factor in a particular case.” E. & J. Gallo Winery. In E. & J. Gallo Winery, in denying the moving party’s
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`request to reopen the time for response to the summary judgment motion, the Board found that
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`“applicant's failure to respond to the motion for summary judgment was caused by its complete failure
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`to act and to monitor the time periods in this proceeding. Such action was wholly within the reasonable
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`control of applicant.”5 E. & J. Gallo Winery.
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`Here, Respondent falls well short of meeting its burden of demonstrating excusable neglect. The
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`Respondent and its counsel could have easily avoided missing the deadline to file the answer—wholly
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`within their reasonable control. Respondent does not address the reason for failing to check the status of
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`the proceeding, nor does Respondent explain why it was impossible for Respondent’s counsel to email
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`Respondent seeking confirmation that Respondent had indeed filed the answer. Contrary to Respondent’s
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`assertion that the circumstances were “unforeseen,” a supervising partner of an associate who spends
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`5 The Board ruled as it did while dismissing docketing errors and breakdowns: “While the Board is sympathetic to
`counsel’s personal circumstances, as opposer points out, perhaps there were other members of counsel’s firm who
`could have either stepped in or requested an extension of time. Docketing errors and breakdowns do not constitute
`excusable neglect.” E. & J. Gallo Winer
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`6
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`three weeks out of the office, and leaves a client to make important filings, should have been doubly
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`concerned that the instructions were carried out. Under the circumstances, Respondent’s motion is
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`merely a belated attempt to avoid the consequences of its own inaction and should be denied.
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`CONCLUSION
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`Since Respondent has been unable to demonstrate inexcusable neglect, Neglect Motion should
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`be denied.
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`
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`DATED:
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`July 6, 2017
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`New York, New York
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`Respectfully submitted,
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`The Dallal Firm, PC
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`Garson Segal Steinmetz Fladgate, LLP
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`s/Uri Dallal
`______________________________
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`Uri Dallal
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`2500 Plaza 5
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`Jersey City, New Jersey 07311
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`732-650-1551
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`uri@dallalfirm.com
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`
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`Robert Garson
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`164 W 25th St #11r, New York, NY 10001
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`212-380-3623
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`rg@gs2law.com
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`Attorneys for DGL Group, Ltd.
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`7
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`
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`CERTIFICATE OF SERVICE
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`I HEREBY CERTIFY that on this 6th day of July, 2017, a true and correct copy of the foregoing was e-
`mailed to Robert Zarco [rzarco@zarcolaw.com]; Alejandro Brito [abrito@zarcolaw.com]; and Beshoy
`Rizk [brizk@zarcolaw.com]
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`
`
`
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`
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`By:
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`
`s/ Uri Dallal
`___________________
`Uri Dallal
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`8
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`In the Matter of Registration No. 4482290
`For the mark: POWERBAR
`Registered: February 11, 2014
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` – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – – X
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` –
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`Cancellation No. 92065745
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`DGL Group, Ltd.,
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`
`
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`
`
`
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`
`
`
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`Battery on the Go, Inc.,
`
`
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`Petitioner,
`
`
`
`v.
`
`Respondent.
`
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`DECLARATION OF ROBERT GARSON IN SUPPORT OF PETITIONER’S OPPOSITION TO RESPONDENT’S
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`MOTION TO SET ASIDE DEFAULT
`
`
`
`ROBERT GARSON, an attorney duly admitted to practice law before the State and Federal Courts of New
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`York, hereby declares pursuant to 28 U.S.C. §1746 the following:
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`1.
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`I am a member of the firm Garson, Ségal, Steinmetz, Fladgate LLP, attorney of record for
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`Petitioner, DGL Group, Ltd. (“DGL” or “Petitioner”), in this action. I am fully familiar with the facts and
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`circumstances stated forming the basis of DGL’s opposition to the Neglect Motion and respectfully submit
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`this declaration in opposition.
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`2.
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`On March 1, 2017, Petitioner and Respondent, Battery on the Go, Inc. (“Respondent”)
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`met for a confidential mediation session in the offices of Garson Segal Steinmetz Fladgate, LLP in a
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`litigation before the Eastern District of New York Civil action number 1:15-cv-05010-RML.
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`
`
`1
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`

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`3.
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`Respondent was in attendance with counsel. Alejandro Brito, a partner with the firm
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`representing Respondent in this cancellation proceeding, Zarco Einhorn Salkowski & Brito, P.A.
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`represented Respondent at the mediation session.
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`4.
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`During the nonconfidential portions of the mediation session, I informed Mr. Brito that
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`we shall be filing a cancellation action on behalf of DGL.
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`5.
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`Exhibit A attached hereto is a true and correct copy of the attorney page for firm web site
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`of Zarco Einhorn Salkowski & Brito, P.A.
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`6.
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`Exhibit B attached hereto is a true and correct copy of the Federal Court of Canada’s
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`issued default judgment as against the Respondent.
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`7.
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`Exhibit C attached hereto is a true and correct copy of the Board’s decision in Iodine
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`Software, LLC v. Iodine, Inc., Opposition No. 91217516 (June 13, 2016).
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`8.
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`Exhibit D attached hereto is a true and correct copy of the Board’s decision in E. & J. Gallo
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`Winery v. Fine Spirits Distribution, LLC, Opposition No. 91175854 (May 22, 2008).
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`
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`Dated: New York, NY
`July 6, 2017.
`
`
`_________________________
`Robert D. M. Garson, Esq.
`Garson, Ségal, Steinmetz, Fladgate, LLP
`164 West 25th Street
`New York, New York 10001
`(212) 380-3623
`
`
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`2
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`

`

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`FIF'R-E4-El31? 15:59
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`From-4169545868
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`Page: 1/?
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`Federal Court
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` Exhibit B
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`Exhibit B
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`Cour federaie
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`Facsimile Transmittal Form I Formulaire d’achemiuement par télécopieur
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`TO/DEST ATAIRE S :
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`1. Name I Nom : Kevin Sartorio / Natalie Rizkall—Kamel
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`Facsimile I Télécopieur : 416-862~7661
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`Telephone I Telephone :
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`El As requested I tel que demande
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`El Left voice message I suite au message vocalw
`2. NameINom:
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`Facsimile I Télécopieur:
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`Telephone/ Telephone:
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`El As requested I tel que demandé
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`El Left voice message I suite au message vocalW
`3. NameINom :
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`Facsimile ITélécopleur :
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`Telephone I Telephone :
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`El As requested I tel que demaudé
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`El Left voice message / suite au message vocal
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`Telephone/Telephone: 416-973-2141
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`TIME/HEU'RE: 4:02 PM
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`DATE : April 24, 2017
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` FROM I EXPEDITEUR : Charlene Cho
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`Facsimile I Telecopieur : 416—973—2154
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`Total number of pages (including this page) I
`Nombre de a es incluemt cette a e :7
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`SQ fiJ‘ECT I OBJET :
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`Court File No. I N“ du dossier de la Cour: T—1232—16
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`Between I enu'e: INTERNATIONAL IF HOLDINGS, LLC v. BATTERY ON THE GO INC.
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`Enclosed is a true copy of the Order of : // Vous u‘ouverez ci—joint une copie confonne de l’ordonnance cle:
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`Justice Campbell dated I date du April 24, 2017
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`
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`CD
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`S / REMAR UES :
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`Pursuant to section 20 afrhe Oficml Languages 14c: ollfimll decisiom, orders andjudgments, includiflg any red-mm? given IhEFEfGFB, lit-med by
`the Court are issued in bath Ofiflfflt languages.
`In the event that each document: are issued in the first instance? In only one Of the DfiCi-EI
`languages, a cop}: afrhe version in the other ofieml language w!!! befomam'ed or! request when it Is availabfe.
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`Confer-Merriam ti lhrricle 20 de la Lei no" (es leagues afierefles, Ies decisions, ardennanees erjugements dyinitifi‘ ave-c 1e: motifs y afi'érenrs,
`sum émis dens les deux leagues oficxelles, Au ms of: flee documents rte semie’if emit, EH Premier “EH- 9148 dim? [ We (1’63 dew" [WSW-’5
`oficfelles. 1mg apple de la version darts I 'autre [angue oficiefle sem rmnsmfse SW demands, :16": 9“ '3113 semi flit-lemme.
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`N.B.: If you do not receive all pages being transmitted, please call the sender at the above telephone number. I Si vous ne
`recevez pas toutes les pages transmises, priere cle eomuniquer aver: l’expéditeur au numero cle telephone ci-haut.
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`FIF'R-E4-El31? 16:88
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`From-4169545868
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`Paoe:E/?
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`Federal Court
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`Cour federale
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`Toronto, Ontario, April 24, 2017
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`PRESENT: The Honourable Mr. Justice Campbell
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`BETWEEN:
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`INTERNATIONAL IP HOLDINGS, LLC
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`and
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`BATTERY ON THE GO INC. C.O.B. AS
`XSORII
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`Date: 20170424
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`Docket: 111232—16
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`Applicant
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`Respondent
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`JUDGMENT
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`UPON the Notice of Application issued July 25, 2016;
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`AND UPON reading the Applicant’s Application Record, filed, including the Applicant’s
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`Supporting affidavits and documentary exhibits;
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`AND UPON hearing the submissions of counsel for the Applicant;
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`FIF'R-E4-EIZ11? 16:88
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`From-4169545868
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`Paae:3/?
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`THIS COURT ORDERS AND ADJUDGES that:
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`1.
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`The Respondent has:
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`a.
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`infringed the Applicant’s copyrights in the 5-HOUR ENERGY Work as
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`defined in the Notice of Application;
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`b.
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`directed public attention to its goods, services or business in such a way as
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`to cause or be likely to cause confusion in Canada, at the time it
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`commenced so to direct public attention to them, between its goods,
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`services or business and the wares, services or business of the Applicant,
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`contrary to s, 70:3) of the Trademark: Act;
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`e.
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`infringed and is deemed to have infringed the Plaintiff" s SdHOUR
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`ENERGY Trademarks, as defined in the Notice of Application, contrary to
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`ss. 19 and 20 of the Trademark: Act; and
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`d.
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`used the Applicant's 5-HOUR ENERGY Trademarks in a manner that is
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`likely to have the effect of depreciating the value of the goodwill attaching
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`thereto, contrary to s. 22(1) of the Trademarks Act.
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`2,
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`The Respondent and its parent, subsidiary, related and affiliated companies and
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`businesses, as well as their respective and collective officers, directors,
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`employees, agents, suppliers, licensees, successors and assigns, are hereby
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`permanently enjoined flom:
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`FIF'R-E4-El31? 16:81
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`From-4169545868
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`Paced-5V?
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`Page: 3
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`a.
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`doing any act with the Applicant’s copyrighted works, including the 5—
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`HOUR ENERGY Work, or a substantial part thereof, that by the
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`Copyright Act only the Applicant has the right to do;
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`b.
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`directing public attention to its goods, services or business in such a way
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`as to cause or be likely to cause confusion in Canada, at the time they
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`commenced so to direct public attention to them, between their goods,
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`services or business and the goods, services or business of the Applicant
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`contrary to s. 7(b) of the Trademarks Act, including without limitation by
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`adopting, using or promoting 5~IN-l CHARGING KIT and associated
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`marks, as described in the Notice of Application,
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`that are confiising with
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`the Applicant’s 5-HOUR ENERGY Trademarks, as or as part of any
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`trademark, trade name, trading style, meta-tag (or other Internet search
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`engine optimization tool or device), corporate name, business name,
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`domain name (including any active or merely re-directing domain name);
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`c.
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`selling, distributing or advertising goods or services in association with
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`one or more of the Applicant’s trademarks or trade names, including
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`without limitation the 5—HOUR ENERGY Trademarks, or any other
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`tradeka or trade-name, that is confusing with the Applicant’s 5—HOUR
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`ENERGY Trademarks, contrary to ss.19 and 20(1)(a) of the Trademarks
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`Act;
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`d.
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`manufacturing, causing to be manufactured or possessing goods in
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`association with one or more trademarks or trade names, including without
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`FIF'R-E4-EE11? 16:81
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`From-4169545868
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`Paae:5/?
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`Page: 4
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`limitation the 5—HOUR ENERGY Trademarks, or any other trademark or
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`trade—name, that is confusing with the Applicant’s 5-HGUR ENERGY
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`Trademarks, for the purpose of their sale or distribution, contrary to ss.19
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`and 20(1)(b) of the Trademarks Act;
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`e.
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`selling, offering for sale or distributing labels or packaging, in any form,
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`bearing one or more trademarks or trade names, including without
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`limitation the 5—HOUR ENERGY Trademarks, or any other tradeka or
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`trade—name, that is confusing with the Applicant’s SPHOUR ENERGY
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`Trademarks, that the Respondent knows or ought to know are intended to
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`be associated with goods or services that are not those of the Applicant,
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`contrary to ss.19 and 20(1)(c) of the Trademarks Act;
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`f.
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`manufacturing, causing to be manufactured, possessing and importing
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`labels or packaging, in any form, bearing one or more trademarks or trade
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`names, including without limitation the 5-HOUR ENERGY Trademarks,
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`or any other trademark or trade—name, that is confiising with the
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`Applicant’s 5—HOUR ENERGY Trademarks, for the purpose of their sale
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`or distribution or for the purpose of the sale, distribution or advertisement
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`of goods or services in association with them, that the Respondent knows
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`or ought to know are intended to be associated with goods or services that
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`are not those of the Applicant, contrary to ss.19 and 20(1)(d) of the
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`Trademarks Act; and
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`fiPR-E4-Efil? 16:81
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`From:4169545@68
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`Paae:E/?
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`Page: 5
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`g.
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`using any trademark registered by the Applicant, including the 5-HOUR
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`ENERGY Trademarks, in a manner that is likely to have the effect of
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`depreciating the value of the goodwill attaching thereto, contrary to s.
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`22(1) of the Trademarks Act.
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`The Respondent shall deliveraup or destroy under oath any goods, packages,
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`labels advertising materials or other words (in print, electronic, or other forms of
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`media), in its possession, power or control, including without limitation, anything
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`that bears the Applicant’s 5-HOUR ENERGY Work, 5-HGUR ENERGY
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`Trademarks or any other trademark or trade name confusingly similar thereto, that
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`are or would be contrary to this Judgment in accordance with s. 53.2 of the
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`Trademarks Act and ss. 38 and 39 of the Copyright Act.
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`The Respondent shall give to the Applicant possession of all infringing copies of
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`the 5—HOUR ENERGY Work and other works of the Applicant in the
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`Respondent’s power, possession or control, pursuant to s. 38 of the CopyrightAcr.
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`The Respondent shall pay to the Applicant forthwith statutory damages in the sum
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`of $20,000 arising from its violations of the Copyright Act, plus applicable H.S.T.,
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`along with pre-judgment and post—judgment interest in accordance with the
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`Federal Courts Act.
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`The Respondent shall pay to the Applicant forthwith damages in the sum of
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`$34,000 arising from its violations of the Trademarks Act plus applicable I-I.S.T,,
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`FIF'R-E4-EE11? 16:83
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`Page-:7/7
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`along with pre-judgment and post—judgment interest in accordance with the
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`Federal Courts Act.
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`Page: 6
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`7.
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`The Respondent shall pay to the Applicant forthwith an award of punitive,
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`aggravated and exemplary damages in the sum of $100,000 plus applicable
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`H.S.T., along with pre-judgrnent and post-judgment interest in accordance with
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`the Federal Caurts Act.
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`8.
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`The Applicant is awarded its costs of the Application, which costs are fixed in the
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`lump sum amount of $32,000 and are payable forthwith by the Respondent.
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`9.
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`Further to Prothonotary Aalto’s Order dated August 31, 2016 with respect to
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`service of Notice of the Application on the Respondent; it is hereby ordered that,
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`in like manner, service of Notice of the present Judgment by the Applicant on the
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`Respondent shall be by leaving a copy with the person apparently in charge at the
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`registered head office of the Respondent.
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`“Dougl