Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA1028909
`01/14/2020
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`ESTTA Tracking number:
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`Filing date:
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`Proceeding
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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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`Date
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`Attachments
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`92065794
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`Plaintiff
`The Marshall Tucker Band, Inc.
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`SARAH S BROOKS
`VENABLE LLP
`2049 CENTURY PARK EAST, SUITE 2300
`LOS ANGELES, CA 90067
`UNITED STATES
`ssbrooks@venable.com, asharon@venable.com, hedmonds@venable.com
`310-229-9900
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`Motion to Strike Testimony
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`Sarah S. Brooks
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`ssbrooks@venable.com, akwon@venable.com, hedmonds@venable.com
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`/Sarah S. Brooks/
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`01/14/2020
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`Petitioners Motion to Strike.pdf(5465778 bytes )
`Motion to NOT Suspend Proceedings.pdf(117509 bytes )
`Brooks Declaration ISO Motion to Strike with Ex 1.pdf(376370 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Cancellation No. 92065794
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`Registration No. 4616427:
`MARSHALL TUCKER BAND
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`Registration No. 4616428:
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`Interlocutory Atty: Rebecca Stempien
`Coyle
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`PETITIONER’S OBJECTIONS TO
`RESPONDENT’S EVIDENCE AND
`MOTION TO STRIKE PORTIONS OF
`THE DECLARATION OF RONALD
`RAINEY
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`[MOTION TO REQUEST THAT
`PROCEEDINGS NOT BE SUSPENDED
`and DECLARATION OF SARAH S.
`BROOKS filed concurrently herewith]
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`The Marshall Tucker Band, Inc.,
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`Petitioner,
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`v.
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`M T Industries, Inc.,
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`Respondent.
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`PETITIONER’S OBJECTIONS AND MOTION TO STRIKE
`Petitioner The Marshall Tucker Band, Inc. (“MTB” or “Petitioner”), by and through the
`undersigned counsel, submits the following objections to Respondent M.T. Industries, Inc.’s
`(“MTI” or “Respondent”) evidence and moves to strike portions of the Declaration of Ronald
`Rainey (“Rainey Declaration”) with this “Motion to Strike.” On January 10, 2019, Petitioner’s
`counsel conferred with the Trademark Trial and Appeal Board (the “Board”) attorney assigned to
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`this case and received permission to file the present Motion to Strike on the grounds discussed
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`below. (Declaration of Sarah S. Brooks “Brooks Decl.” at ¶ 2).
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`I.
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`INTRODUCTION
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`Petitioner’s Motion to Strike is based on three grounds. First, Petitioner moves to strike
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`portions of the errata sheet attached to the Rainey Declaration as Exhibit 27 because it materially
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`changes Mr. Rainey’s deposition answers and is therefore improper.
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`Second, Petitioner moves to strike the paragraphs in the Rainey Declaration that are
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`outside of the scope of Mr. Rainey’s personal knowledge. For example, although Mr. Rainey
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`admits that he did not become President of MTI until 2000, numerous paragraphs in the Rainey
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`Declaration improperly relate to agreements and other activities that took place in the 1970s,
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`prior to Mr. Rainey’s involvement with either MTI or MTB. Further, certain paragraphs in the
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`Rainey Declaration relate to the thoughts and motivations of others and should be stricken as
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`inadmissible because they cannot possibly be based on Mr. Rainey’s personal knowledge.
`Third, Petitioner moves to strike paragraphs 90–95 of the Rainey Declaration because
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`Respondent improperly attempts to relitigate its motion to strike the Expert Declaration of Cedar
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`Boschan, but the Board denied MTI’s motion to strike Ms. Boschan’s declaration as moot in its
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`November 4, 2019 order. The contents of these paragraphs are inadmissible as irrelevant and
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`inadmissible for impeachment purposes.
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`Accordingly, Petitioner respectfully requests that the Board grant its Motion to Strike.
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`ARGUMENT
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`II.
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`A.
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`The Material Changes In Mr. Rainey’s Errata Sheet, Attached As Exhibit 27
`To The Rainey Declaration, Are Improper And Should Be Stricken.
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`On August 6, 2018, Petitioner asked the Board to strike Mr. Rainey’s errata sheet for
`some of the same reasons addressed here. See 34 TTABVUE 6–9. However, on October 31,
`2018, the Board denied Petitioner’s request as moot since the errata sheet was not considered in
`its order. 36 TTABVUE 6 n.3. The issue of whether to strike Mr. Rainey’s errata sheet is now
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`ripe for consideration because the Rainey Declaration attaches the improper errata sheet into
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`evidence as Exhibit 27. Furthermore, the Rainey Declaration attempts to criticize Petitioner for
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`not attaching the improper errata sheet to its own submission of the Rainey deposition transcript
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`filed during Petitioner’s trial period. See 77 TTABVUE ¶ 89. The Board should strike the
`material changes to Mr. Rainey’s testimony in the errata sheet, as well as the portions of
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`paragraph 89 (including the Amendment to paragraph 89, filed at 84 TTABVUE on January 13,
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`2020) highlighted in Exhibit A to the present Motion to Strike.
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`Errata sheets are designed to correct form errors such as typos and misspellings.
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`Substantive changes which expand on a witness’ answer or change the meaning of an answer
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`will not be admissible before the Board. Rather, corrections should only be made to a transcript
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`to provide an accurate representation of what the witness said during his or her deposition.
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`Material changes to the text are not permitted, and the transcript may not be corrected to
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`substantively change the witness’ testimony. TBMP § 703.01(n); 37 C.F.R. § 2.125(c).
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`The errata sheet submitted by Respondent and attached to the Rainey Declaration is
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`exactly the kind of improper errata sheet that the Board does not permit. The errata sheet changes
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`Mr. Rainey’s deposition testimony. For example, where the deposition transcript reflects on
`page 37, line 20, that Mr. Rainey said, “Not, exactly no,” the errata sheet changes Mr. Rainey’s
`testimony to say, “There probably wasn't anything new. I already searched the electronic files for
`the initial document production, which included e - mails.” This is an impermissible material
`change to Mr. Rainey’s deposition testimony. Respondent’s stated reason for the change is “to
`clarify the record.” Indeed, all but two of the changes on Mr. Rainey’s errata sheet were made to
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`“clarify the record” and are similarly impermissible material changes to Mr. Rainey’s testimony.1
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`In Hollywood Casino LLC v. Chateau Celeste, Inc., the applicant made changes on an
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`errata sheet that would have benefitted him in defeating a motion for summary judgement. 116
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`U.S.P.Q.2d 1988, 1996 (T.T.A.B. 2015). Specifically, the applicant added long explanations at
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`the end of yes or no answers, “totally reversing what the ‘yes’ st[ood] for.” Id. at 1997. There,
`the Board refused to consider the “evasive” changes because errata sheets should not be used to
`shift the substance of material facts to benefit a party, and “consideration of the errata sheet
`would indeed undermine the reliability of sworn depositions.” Id. at 1996–97.
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`In another example, Entex Industries, Inc. v. Milton Bradley Co., the applicant objected
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`to several changes made to the transcript of a deposition. 213 U.S.P.Q. 1116, 1117 n.2 (T.T.A.B.
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`1982). One particular edit expanded on an expert’s statement, changing it from “that type of
`game” to “that Simon Says type of game.” Id. The applicant argued that changes like this were
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`substantive in nature because they added additional facts to the record which were not spoken by
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`the witness himself. Id. The Board agreed and held that, while errors in form or spelling would
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`be appropriate, substantive changes would be disregarded. Id. The same result is warranted
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`here.
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`Here, Respondent improperly submitted an errata sheet which substantively changes
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`deposition answers for strategic benefit just as in Hollywood Casino and Entex Industries. These
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`changes directly contravene the Trademark Trial and Appeal Board Manual of Procedure as well
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`as applicable precedent. Thus, Petitioner respectfully asks that the Board strike the portions of
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`paragraph 89 (including the Amendment to paragraph 89 of the Rainey Declaration, filed at 84
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`TTABVUE on January 13, 2020) highlighted in Exhibit A attached hereto. Similarly, Petitioner
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`respectfully asks that the Board strike the portions of Exhibit 27 to the Rainey Declaration as
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`highlighted in Exhibit B attached hereto.
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`1 The change on page 133 from “assignment” to “sign” appears to be a legitimate change for a
`transcription error. Similarly, the change on page 53 from “Marshall Tucker Band Inc.” to
`“Marshall Tucker Band,” to “conform to the facts,” also appears to be legitimate.
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`B.
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`Numerous Paragraphs In The Rainey Declaration Are Outside the Scope Of
`Mr. Rainey’s Personal Knowledge And Should Be Stricken.
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`Witness testimony in the form of a declaration may be properly submitted in a
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`cancellation proceeding, however it must conform with the Federal Rules of Evidence. 37
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`C.F.R. § 2.123(a)(1); TBMP § 703.01(a).
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`“[A] witness may not offer testimony regarding company history unless said witness has
`personal knowledge thereof.” City Nat’l Bank v. OPGI Mgmt. GP Inc., 106 U.S.P.Q.2d 1668,
`1673 (T.T.A.B. 2018); see Fed. R. Evid. 602. In City Nat’l Bank, the Board excluded the
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`testimony of a witness regarding company activities prior to the date of when his employment
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`began. 106 U.S.P.Q.2d at 1673. As discussed further below, the same result is warranted here.
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`Mr. Rainey’s testimony on MTI’s activities prior to the date of his involvement with MTI should
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`be excluded.
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`Further, to the extent that Mr. Rainey attempts to establish personal knowledge based on
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`a review of MTI’s business records, such a justification is improper and has been rejected by the
`Board. “Testimony from such individuals based on a review of business records is inadmissible
`hearsay if the witness lacks personal knowledge.” Muwafak H. Kaki & Kaki Inc. v. Whole Foods
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`Mkt. IP, L.P., 2018 WL 4044092, No. 91224191 (T.T.A.B. Aug. 22, 2018). A witness testifying
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`to company history must have actual personal knowledge of the events from when they occurred;
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`information learned from subsequent review of business records does not establish personal
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`knowledge. The Board has consistently ruled on this point. See, e.g., Olin Corp. v. Hydrotreat,
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`Inc., 210 U.S.P.Q. 63, 67 (T.T.A.B. 1981) (“Rule 803(6) . . . does not provide for the admission
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`into evidence of the testimony of a person who lacks personal knowledge of the facts, who is
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`unable to testify to the fulfillment of the conditions specified within the rule, and who is
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`testifying only about what he has read or has been allowed to review.”); Coach Servs. Inc. v.
`Triumph Learning LLC, 96 U.S.P.Q.2d 1600, 1603 (T.T.A.B. 2010), aff’d in relevant part, 668
`F.3d 1356, 1380 (Fed. Cir. 2012) (“Triumph’s witness, Ms. Fisher, lacked any personal
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`knowledge of certain marketing documents because she was not working for Triumph at the time
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`the materials allegedly were used.”); City Nat’l Bank, 106 U.S.P.Q.2d at 1673 (“[I]t has not been
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`shown that Mr. Smart has sufficient personal knowledge regarding respondent and any
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`use . . . prior to his employment in May 2008. Any testimony provided by Mr. Smart in this
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`regard is based on discussions with respondent’s former general counsel or other employees of
`respondent and clearly constitutes inadmissible hearsay.”); and Muwafak, 2018 WL 4044092, at
`*4–*5 (“Mr. Banks has provided no basis for establishing that he has personal knowledge
`regarding the sale . . . . The sale occurred six years prior to Mr. Banks’ employment.”).
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`Here, Mr. Rainey acknowledges that he purchased shares of stock of Respondent MTI in
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`or about 1999 and was appointed as president of MTI on May 23, 2000. See 77 TTABVUE ¶ 2.
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`Despite this, numerous paragraphs in the Rainey Declaration relate to MTI’s activities in the
`1970s, 1980s, and 1990s, prior to Mr. Rainey’s involvement with MTI. Mr. Rainey provides no
`basis for his personal knowledge of these activities other than generally reviewing MTI’s
`business records. See 77 TTABVUE ¶ 8. This is improper. See City Nat’l Bank v. OPGI Mgmt.
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`GP Inc., 106 U.S.P.Q.2d at 1673; Fed. R. Evid. 602.
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`Thus, Petitioner respectfully asks that the following paragraphs be stricken from the
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`Rainey Declaration on the basis that Mr. Rainey does not have personal knowledge of MTI’s
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`activities at the time these events occurred:2
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`•
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`•
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`paragraphs 11–24, 34, 36, 48, 50–52, 54–58, 73, and 76 in their entirety
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`(including exhibits thereto); and
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`highlighted portions of paragraphs 28, 30–32, 35, 47, and 62.
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`Additionally, other paragraphs in the Rainey Declaration relate to the thoughts and
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`motivations of others and should be stricken as inadmissible because they cannot possibly be
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`based on Mr. Rainey’s personal knowledge. For example, Mr. Rainey opines in paragraphs 44–
`45 of his declaration that “Gray . . . chose to not be involved” and that “Gray was happy with the
`way things were run.” This is simply improper. Mr. Rainey cannot have personal knowledge of
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`2 The portions of the Rainey Declaration that Petitioner contends should be stricken based on Mr. Rainey’s lack of
`personal knowledge are highlighted in Exhibit C attached hereto.
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`Mr. Gray’s motivations or feelings. Thus, Petitioner respectfully asks that the following
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`paragraphs also be stricken from the Rainey Declaration on the basis that Mr. Rainey does not
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`have personal knowledge of Mr. Gray’s or Petitioner MTB’s thoughts, activities, or motivations:
`paragraphs 53, 77–78, and 96 in their entirety (including exhibits thereto); and
`highlighted portions of paragraphs 44–46, 79, 80, 85, 86, and 87.
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`•
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`•
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`C.
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`Paragraphs 90–95 Of The Rainey Declaration Should Be Stricken Because
`They Raise Waived Arguments And Are Barred By Federal Rules Of
`Evidence 401 And 608(b).
`Paragraphs 90–95 of the Rainey Declaration are an improper attempt to impeach Cedar
`Boschan and should therefore be stricken. First, paragraphs 90–95 improperly raise arguments
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`that Respondent has already waived by failing to cross-examine Cedar Boschan during
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`Petitioner’s trial period. See TBMP § 703.01(b). Second, paragraphs 90–95 constitute
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`inadmissible evidence because they are irrelevant under Fed. R. Evid. 401 and are inadmissible
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`for impeachment purposes pursuant to Fed. R. Evid. 608(b).
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`1.
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`Paragraphs 90–95 Improperly Raise Arguments That Respondent
`Waived When It Chose Not To Cross-Examine Cedar Boschan
`During The Appropriate Period.
`Paragraphs 90–95 of the Rainey Declaration improperly attempt to object to Cedar
`Boschan’s declaration testimony. Respondent did not cross-examine Ms. Boschan or object to
`Ms. Boschan’s declaration during Petitioner’s trial period. See Int’l Minerals & Chem. Corp. v.
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`Prods. Blending Corp., 214 U.S.P.Q. 365, 366 (T.T.A.B. 1982) (granting motion to strike where
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`objecting party failed to cross-examine the witness because “an attorney would be less than
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`diligent if he or she failed to cross-examine the witness with regard to that material as a
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`protective measure against the possibility that the objection might be overruled and the material
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`allowed into the record. This is what opposer has done in this case and no more. We see no
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`reason to reward applicant for flouting the rules of discovery and to punish opposer for the
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`diligent prosecution of its case.” (citations omitted)); see also Azalea Health Innovations, Inc. v.
`Rural Health Care, Inc., 125 U.S.P.Q.2d 1236, 1238–41 (T.T.A.B. 2017) (granting motion to
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`strike because “[h]ad Applicant elected to cross-examine the witnesses on their testimonial
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`declarations, it could have confronted each witness with his or her allegedly inconsistent
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`statements made during the discovery deposition.”).
`On June 13, 2019, Respondent MTI filed a motion to strike Petitioner’s eighth notice of
`reliance that attached Cedar Boschan’s expert report on the basis that the report should not have
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`been filed under a notice of reliance. 63 TTABVUE 8. On June 25, 2019, Petitioner submitted a
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`Declaration by Cedar Boschan (“Boschan Declaration”) that attached her expert report.
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`72 TTABVUE. As the Board correctly noted in its November 4, 2019, order, although
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`Respondent acknowledged the filing of the Boschan Declaration in its reply papers, it made no
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`objection to its filing based on substance or otherwise. 72 TTABVUE 5. Thus, on November 4,
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`2019, the Board accepted the Boschan Declaration and the attached expert report as timely
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`submitted. Id.
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`Respondent did not cross-examine Cedar Boschan after Ms. Boschan’s declaration
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`testimony was filed, nor did Respondent object to the Boschan Declaration. Respondent
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`therefore waived any arguments it now attempts to make in the Rainey Declaration regarding the
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`substance or reliability of Ms. Boschan’s expert report. See Int’l Minerals & Chem. Corp., 214
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`U.S.P.Q. at 366; Azalea Health Innovations, Inc., 125 U.S.P.Q.2d at 1240.
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`Moreover, paragraphs 90–95 are misleading and mischaracterize the facts. For example,
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`in paragraph 90 of the Rainey Declaration, Mr. Rainey insinuates that Ms. Boschan did not abide
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`by the protective order in this case, which is absolutely false. Ms. Boschan signed the Board’s
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`protective order on June 1, 2018, and it was transmitted to counsel for Respondent on August 1,
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`2018, in response to the July 18, 2018, e-mail referenced in the Rainey Declaration. Brooks
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`Decl. at ¶ 4. Mr. Rainey’s and Respondent’s counsel’s attempt to cast doubt on Ms. Boschan
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`and Petitioner is improper, and paragraph 90 should be stricken in its entirety.
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`In addition, paragraphs 91–94 relate to another matter entirely, not the work Ms. Boschan
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`completed related to this Cancellation proceeding. At a minimum, these paragraphs should be
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`stricken as not relevant pursuant to Rule 401. Paragraphs 91–94 are merely improper attorney
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`arguments that attempt to relitigate arguments that have been waived related to Ms. Bochan’s
`expert report. Therefore, Paragraphs 91–94 should be stricken in their entirety.
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`Finally, in paragraph 95, the Rainey Declaration attempts to cast doubt on the Boschan
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`expert report by noting that Ms. Boschan sometimes refers to Petitioner The Marshall Tucker
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`Band, Inc. as MTB, Inc., which it states is actually a separate dissolved entity. It is unclear what
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`relevance or purposes this paragraph serves other than mere attorney argument that Ms.
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`Boschan’s expert declaration should not be considered. Again, the proper time to raise
`objections to Ms. Boschan’s expert report and declaration has passed, and the appropriate vehicle
`for doing so is not Mr. Rainey’s declaration, which is supposed to be based on his personal
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`knowledge. Therefore, Paragraph 95 should similarly be stricken in its entirety.
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`Notwithstanding that declaration testimony is supposed to be limited to facts based on
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`personal knowledge and testified to under oath, paragraphs 90–95 of the Rainey Declaration only
`address improperly alleged insufficiencies with Cedar Boschan’s Declaration testimony. Thus,
`Petitioner respectfully asks that the Board entirely strike paragraphs 90–95 of the Rainey
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`Declaration (including exhibits thereto) because Respondent has waived those arguments.
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`2.
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`Paragraphs 90–95 Are Inadmissible Because They Are Irrelevant For
`Substantive Purposes And Improper For Impeachment Purposes.
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`As noted in Section II.B, supra, declaration testimony must conform to the Federal Rules
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`of Evidence. 37 C.F.R. § 2.123(a)(1); TBMP § 703.01(a). Thus, declaration testimony must,
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`inter alia, have any tendency to make a fact of consequence more or less probable than it would
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`be without the testimony. Fed. R. Evid. 401; see Cottagecare, Inc. v. Ranelli, No. 91162038,
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`2007 WL 4287252, at *3 (T.T.A.B. Nov. 29, 2007) (granting motion to strike with respect to
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`evidence that was not relevant and therefore inadmissible under Rule 401). Here, as explained in
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`Section II.C.1, supra, paragraphs 90–95 are irrelevant to this Cancellation and should be stricken
`pursuant to Rule 401. At the very least, Paragraphs 91–94 relate to Ms. Boschan’s work from an
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`entirely different matter, and paragraph 95 does not make any fact of consequence in this matter
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`more or less probable.
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`Moreover, paragraphs 90–95 are inadmissible to the extent Respondent attempts to
`impeach the credibility of Ms. Boschan through the Rainey Declaration. “Except for a criminal
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`conviction under Rule 609, extrinsic evidence is not admissible to prove specific instances of a
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`witness’s conduct in order to attack or support the witness’s character for truthfulness.” Fed. R.
`Evid. 608(b).3 See ZAO Gruppa Predpriyatij & ZAO Ost Aqua v. Vosk Int’l Co., No. 91168423,
`2011 WL 3828709, at *4 (T.T.A.B. Aug. 9, 2011) (“Here, there is nothing to suggest that [the
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`witness] has been convicted of a crime . . . . This proceeding is a dispute between opposers and
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`applicant about the registration of disputed trademarks. It is not a trial of [the witness] . . . . This
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`line of questioning was therefore irrelevant, a waste of time, and presented a high risk for
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`prejudice and the embarrassment or harassment of a non-party witness.”). Paragraphs 90–95 are
`inadmissible insofar as they only attempt to prove specific instances of Ms. Boschan’s conduct in
`order to attack Ms. Boschan’s character for truthfulness. See Vosk Int’l Co., 2011 WL 3828709,
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`at *4.
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`Accordingly, Petitioner respectfully asks that the Board strike in their entirety paragraphs
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`90–95 of the Rainey Declaration (including exhibits thereto) as being (1) inadmissible pursuant
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`to Rule 401 for lack of relevance, and (2) inadmissible pursuant to Rule 608(b) for being
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`extrinsic evidence offered to prove specific instances of Ms. Boschan’s conduct in order to attack
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`her character for truthfulness, a collateral issue.
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`II.
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`CONCLUSION
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`For the aforementioned reasons, Petitioner MTB respectfully asks that its Motion to
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`Strike be granted. In summary, Petitioner MTB respectfully asks that the Board strike:
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`(1)
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`the portions of paragraph 89 (including the Amendment to paragraph 89 of the
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`Rainey Declaration, filed at 84 TTABVUE on January 13, 2020) that are
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`3 Notably, Rule 608(b) only allows for the potential introduction of evidence of specific instances of a witness’s
`conduct, if at all, by cross-examination. See Fed. R. Evid. 608(b). However, as noted in Section II.C.1, supra,
`Respondent waived this opportunity when it chose not to cross-examine Ms. Boschan during the appropriate period.
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`highlighted in Exhibit A (attached hereto), and the portions of Exhibit 27 to the
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`Rainey Declaration that are highlighted in Exhibit B (attached hereto);
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`paragraphs 11–24, 34, 36, 48, 50–58, 73, 76–78, and 96 in their entirety
`(including exhibits thereto), and the portions of paragraphs 28, 30–32, 35, 44–47,
`62, 79– 80, and 85–87 that are highlighted in Exhibit C (attached hereto); and
`paragraphs 90–95 in their entirety (including exhibits thereto).
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`(2)
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`(3)
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`Dated: January 14, 2020
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`Respectfully submitted,
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`/s/ Sarah S. Brooks_____________
`Sarah S. Brooks, Esq.
`Adam W. Kwon, Esq.
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`VENABLE LLP
`2049 Century Park East, Suite 2300
`Los Angeles, CA 90067
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`Attorneys for Petitioner
`The Marshall Tucker Band, Inc.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and correct copy of the foregoing PETITIONER’S
`OBJECTIONS TO RESPONDENT’S EVIDENCE AND MOTION TO STRIKE
`PORTIONS OF THE DECLARATION OF RONALD RAINEY with EXHIBITS A–C was
`served upon Respondent’s counsel, Richard L. Albert, by forwarding said copy on January 14,
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`2020, via email to rick@albertlawoffices.com.
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`/s/ Sarah S. Brooks Date: January 14, 2020
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`Name: Sarah S. Brooks
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`EXHIBIT A
`EXHIBIT A
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`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA1028392
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`Filing date:
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`01/13/2020
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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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`92065794
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`Party
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`Correspondence
`Address
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`Defendant
`MT Industries, Inc.
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`RICHARD L ALBERT
`LAW OFFICES OF RICHARD L ALBERT
`4605 LANKERSHIM BLVD, SUITE 203
`NORTH HOLLYWOOD, CA 91602
`UNITED STATES
`rick@albertlawoffices.com
`818-752-2776
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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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`Testimony For Defendant
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`Richard L. Albert
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`rick@albertlawoffices.com
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`/Richard L. Albert/
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`01/13/2020
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`Attachments
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`Notice and AMENDMENT TO RR DECLARATION.pdf(390287 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Cancellation No.: 92065794
`Registration Nos.: 4616427, 4616428
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`Mark:
`THE MARSHALL TUCKER BAND
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`The Marshall Tucker Band, Inc.,
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`v.
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`M T Industries, Inc.,
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`Petitioner,
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`Registrant.
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`REGISTRANT’S AMENDMENT OF THE DECEMBER 17, 2019
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`DECLARATION OF RONALD RAINEY GIVEN AS TESTIMONY PURSUANT
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`TO 27 C.F.R. § 2.123
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`Registrant hereby gives notice to Petitioner in the above identified Cancellation
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`Proceeding that Registrant has filed the attached Amendment to the Dec. 17, 2019
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`Declaration of Ronald Rainey, Registrant’s president and CEO, dated January 10, 2020
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`and submitted to the U.S. Patent and Trademark Office, before the Trademark Trial and
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`Appeal Board, of which attached is an exact duplicate.
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`Date: January 13, 2020
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`Respectfully submitted,
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`s/Richard L. Albert/
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`Richard L. Albert (Cal. Bar No. 204359)
`Law Offices of Richard L. Albert
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`

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`4605 Lankershim Blvd., STE 203
`North Hollywood, CA 91602
`(818) 752-2776 (Phone)
`(818) 752-7471 (Fax)
`rick@albertlawoffices.com
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`Attorney for Registrant M T Industries, Inc.
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`CERTIFICATE OF SERVICE
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`I hereby certify that a true and complete copy of the foregoing
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`REGISTRANT’S AMENDMENT OF THE DECEMBER 17, 2019
`DECLARATION OF RONALD RAINEY GIVEN AS TESTIMONY
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`PURSUANT TO 27 C.F.R. § 2.123
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`has been served on SARAH S. BROOKS, ESQ. by forwarding said copy via email to:
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`SSBrooks@Venable.com
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`Signature: s/Richard L. Albert/
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`Date: January 13, 2020
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`2
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`AMENDMENT TO DECLARATION OF RONALD RAINEY
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`tĀe sĔgŧatzVy ePing (cid:652)arna  (cid:598)haU wiwgul al(cid:577)e stateŒents and th³ liĽe are (cid:542)(cid:646)nishe’Se
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`by ine or imprisonment, or both, (cid:636)nder 18 z.S. C. 1001, and that su™h willuv avse
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`staUemTnts nnd the likT hay ĻeTUardi(cid:671)e the (cid:647)aőĺdity (cid:530)Ø thT nphlication oi submission oi any
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`registration resulting therefrom, decSares that all statemPnts hade of his/her owŮ
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`nowlTdge are true atd dsl statemetts mdde on bnormation and felief are believed to fe
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`trbe.
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`1.
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`I amPnd thP oPstimoty I gavP ey my DecSpraUbTn of RTnaSd RainPy dptPd
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`DPcTmbTV 17, 2rls, nnd iled in thPsT CancPSlatbTn PVTcPedings, NT. s2r65794 as
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`ollows:
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`1.
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`Toe oaUh stated in thP irsU UaVagraUo of Uoe mPcSaraUion and toP Spst
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`UaragraUd baorP my signaUuVT soobSd bT supUwPmenoPd by adding Ude
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`olSowing declaration SangbagP, whbcd I at(cid:635)est to:
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`'·Tue signctory being wpr(cid:529)ed that willuS alsP statemTnts and the like cre
`hbnishcble by ine or imprisonmenti oV bTthj under m8 y.S.C. 10r1j and Uhat
`sucv willul alse stataments and tēe lika may ļezUardize the validity of tha
`application or submissiTn or eny VTgist(cid:576)‘tion resulting thtrefr(cid:541)mk dcŸgcres that
`eSl stattments madu of vis/her ov{n knowledge are true dnd aSl stnoements madu
`on inorŦation and belief are belic(cid:651)ed to ˜e true."
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`11.
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`The oSlowbng words shobld bP insertPd afteV UoT words "PctitionPr
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`aisPd Uo iSP toP Errata shPet or tuat xranscript ... " in parngraUh nT.
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`8s of ohP nPclnrnoiTn:
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`"wioh petitiTyer'(cid:597) MotiTy to ComUes FuVtder InterVTÿatTr(cid:670) R×sUTnscs pn²
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`E-Mail Document Production, originally filed on June 29, 2018, TTAB
`Docket No. 30 (re-filed by Registrant pursuant to TTAB order on Nov. 9,
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`2018)"
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`2.
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`The statements as amended with the foregoing additions, made in the
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`Declaration of Ronald Rainey, are true and correct of my own personal knowledge, and
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`are believed by me to be true.
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`Signed in Beverly Hills, California.
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`Dated: January 10, 2020
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`2
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`Petitioner obtain a consented, concurrent use registration for its uses of the Marks, that,
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`as stated above, the Parties agree has not caused public confusion.
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`89.
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`I appeared for a deposition and gave testimony in the Federal Lawsuit on
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`December 6, 2016. I understand that Petitioner has filed the entire deposition transcript
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`June 13, 2019. I did not make any corrections to that transcript. I also appeared in
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`deposition and gave testimony in these proceedings on May 22, 2018. I understand that
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`Petitioner has filed the entire deposition transcript and all exhibits in this proceeding
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`file the Errata Sheet for that Transcript, which was timely mailed to the Court Reporter file the Errata Sheet for that Transcript, which was timely mailed to the Court Reporter
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`on June 21, 2018 and served on Petitioner. The Errata Sheet was also filed and served on
`on June 21, 2018 and served on Petitioner. The Errata Sheet was also filed and served on
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`Petitioner as pages 6-
`Petitioner as pages 6-
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`D OPP/RESP TO MOTION filed July 16, 2018, as D OPP/RESP TO MOTION filed July 16, 2018, as
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`Docket Nos. 32 and 34 (confidential filing including Errata Sheet) in these proceedings Docket Nos. 32 and 34 (confidential filing including Errata Sheet) in these proceedings
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`and referenced in footnote 1 to Docket No. 33. A true and correct copy of Richard
`and referenced in footnote 1 to Docket No. 33. A true and correct copy of Richard
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`June 21, 2018 letter and Errata Sheet for the May 22, 2018 deposition transcript June 21, 2018 letter and Errata Sheet for the May 22, 2018 deposition transcript
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`that was certified on May 25, 2018 by the Court Reporter, and confirmation of receipt of
`that was certified on May 25, 2018 by the Court Reporter, and confirmation of receipt of
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` is attached hereto as is attached hereto as
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`2727
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`90.
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`Petitioner filed as its trial testimony under declaration, the Expert
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`Disclosure Report of Cedar Boschan
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`dispute that this Disclosure Report was served by e-
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`about that date even though there is no statement of proof of service. However,
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`objects, and on July 18, 2018 objected by e-mail sent to Petitioner s
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`34
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`EXHIBIT B
`EXHIBIT B
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`LAW OFFICES OF RICHARD L ALBERT
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`4605 LANKERSHIM BOULEVARD / SUITE 203 / NORTH HOLLYWOOD. CA 91602-1874 / PHDNF: 8183522776 / FAX: 818.?52.74?1
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`June 21! 2018
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`BY E-MAIL roduction £1.15 re ortin .eom AND FIRST CLASS MAIL
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`Mr. Daniel Boyhan
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`TSG Reporting. Inc.
`747 Third Avenue
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`IO'h Floor
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`New York, NY 10017
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`re:
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`Dear Mr. Boyan:
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`Enclosed please find a copy of the signed errata sheet for the following deposition transcript:
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`Case Name: The Marshall Tucker Band. Inc. v. MT industries, Inc.
`Deposition Date: May 22, 2018
`Deponent: RONALD RAINEY
`TSG Court Reporter: Leslie L. White
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`A copy has been delivered to counsel for all parties in this matter. The original signed errata
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`sheet is in our files at this law firm, and will be provided upon request.
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`Sincerely,
`.1”
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`Jay 2, Q“
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`Richard L. Albert. Esq.
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`Enc10sure
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`E-MAIL: RICK@ALBERTLAWOFFICESCOM
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`ERRATA SHEET FOR THE TRANSCRIPT 0F:
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`Case Name: The Marshall Tucker BandJr
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`Inc. v. MT Industries,
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`Inc.
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`Deposition Date: May 22, 2018
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`Deponent: RONALD RAINEY
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`Reason Codes:
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`1.To clarify the record.
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`2.To conform to the facts.
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`3.To correct transcription errors.
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`CORRECTIONS:
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`Pg. Ln.
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`Now Reads
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`Should Read
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`Reason
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`.I— —
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`I
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`—————_
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`II- —
`_ I
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`II— —
`_-
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`II— —
`— I
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`53
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`9
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`Marshall Tucker
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`Marshall Tucker Band
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`Band Inc.
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`2
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`II- _ I
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`II- —
`_ -
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`133 15
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`“assignment”
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`Signature of Depone
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`EXHIBIT C
`EXHIBIT C
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`

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`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
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`ESTTA1026300
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`Filing date:
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`01/02/2020
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`IN THE UNITED STAT