`
`THIS OPINION IS A
`PRECEDENT OF THE
`TTAB
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`
`
`Faint/Stanley
`
`
`
`
`
`
`
`
`M. Catherine Faint,
`Interlocutory Attorney
`
`UNITED STATES PATENT AND TRADEMARK OFFICE
`Trademark Trial and Appeal Board
`P.O. Box 1451
`Alexandria, VA 22313-1451
`General Contact Number: 571-272-8500
`General Email: TTABInfo@uspto.gov
`
`March 25, 2019
`
`Cancellation No. 92066233
`
`United States Polo Association
`
`v.
`
`David McLane Enterprises, Inc.
`
`This case now comes up on Petitioner’s motion, filed August 22, 2018, to challenge
`
`Respondent’s designations of certain of its produced documents and interrogatory
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`responses as “Confidential” or “Confidential – For Attorneys’ Eyes Only (Trade
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`Secret/Commercially Sensitive)” under the Board’s Standard Protective Order. The
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`motion is fully briefed.1
`
`1. Background
`
`On June 15, 2018, Respondent served responses and objections to Petitioner’s first
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`set of document requests (Nos. 1-12) and first set of interrogatories (Nos. 1-18).2 On
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`the same day, Respondent produced responsive documents, Bates labeled DME0001-
`
`
`1 In reaching this decision, all of the parties’ arguments and evidence were carefully
`considered but there is no need to restate them all in this order. See Guess? IP Holder L.P. v.
`Knowluxe LLC, 116 USPQ2d 2018, 2018 (TTAB 2015).
`2 22 TTABVUE 2-3, ¶ 3.
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`

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`Cancellation No. 92066233
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`DME00154.3 Pursuant to the Board’s Standard Protective Order,4 Respondent
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`designated all produced documents “Confidential – For Attorneys’ Eyes Only (Trade
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`Secret/Commercially Sensitive).”5
`
`On June 19, 2018, Petitioner complained to Respondent about its confidentiality
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`designations, stating that “we need to be able to go over the discovery responses with
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`our client’s in-house counsel.”6 On July 2, 2018, Respondent agreed to change the
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`designation “of at least some of the documents from ‘trade secret/commercially
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`sensitive’ to ‘Confidential,’” but conditioned the redesignation on Petitioner’s
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`agreement that only one of Petitioner’s in-house attorneys, approved by Respondent,
`
`
`3 Id.; 19 TTABVUE 2, ¶ 2. Petitioner filed a “confidential” chart (Exhibit G) with its motion,
`identifying the designations for all documents at issue. 20 TTABVUE at 184-192. The chart
`identifies twenty documents. In its opposition to Petitioner’s motion, Respondent states that
`it produced “twenty-one documents” (21 TTABVUE at 3), but in that same opposition,
`Respondent refers to “sixteen” documents being designated “Confidential” and “six”
`documents being designated “Confidential – For Attorneys’ Eyes Only
`(Trade
`Secret/Commercially Sensitive)” (i.e., twenty-two documents) (id. at 4). The discrepancy
`appears to be attributable to how the parties grouped the documents. References to the
`number of documents produced in this order are based on the parties’ representations in their
`briefs. Although there are more than twenty-two discrete documents, the Board has also
`grouped documents together, as appropriate, by Bates ranges for purposes of analysis.
`4 The Board’s Standard Protective Order is automatically imposed in all inter partes
`proceedings. Trademark Rule 2.116(g), 37 C.F.R. § 2.116(g); Trademark Trial and Appeal
`Board Manual of Procedure (“TBMP”) § 412.01 (2018). The parties were advised of the
`imposition of the Standard Protective Order in the institution order. See 2 TTABVUE 4. The
`Board’s Standard Protective Order
`is available on
`the Board’s homepage,
`www.uspto.gov/ttab. Although it is not necessary for the parties to sign copies of the Board’s
`Standard Protective Order for it to take effect for the duration of this proceeding, it may be
`advisable for both the parties and their attorneys to sign the Standard Protective Order “so
`that it is clear that they are all bound thereby; that they have created a contract which will
`survive the proceeding; and that there may be a remedy at court for any breach of that
`contract which occurs after the conclusion of the Board proceeding.” TBMP §412.03; see also
`TBMP § 412.01.
`5 22 TTABVUE 2-3, ¶ 3
`6 19 TTABVUE 9.
`
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`Cancellation No. 92066233
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`would be permitted to see the “Confidential” documents.7 On July 10, 2018,
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`Petitioner’s counsel identified one in-house lawyer but reserved its right to further
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`object to Respondent’s designations.8 The parties did not seek Board approval to
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`modify the Standard Protective Order to formally reflect their amended agreement.
`
`On July 11, 2018, Respondent produced its documents with amended
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`confidentiality designations, changing the designation of sixteen documents from
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`“Confidential – For Attorneys’ Eyes Only” to “Confidential” (subject to only the
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`approved in-house counsel seeing the “Confidential” documents).9 Respondent
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`maintained the “Confidential – For Attorneys’ Eyes Only” designation for the
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`remaining six documents and three of the interrogatory responses.10
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`On July 12, 2018, Petitioner emailed Respondent a list of objections and proposed
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`that Respondent downgrade its classification of its responses to interrogatory Nos. 8-
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`10 and the remaining six documents from “Confidential – For Attorneys’ Eyes Only”
`
`to “Confidential.”11 On July 16, 2018, Respondent agreed to change its designations
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`of the responses to interrogatory Nos. 8 and 10 to “Confidential” (subject to only the
`
`approved in-house counsel).12 As to its response to interrogatory No. 9 and the six
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`remaining “Confidential – For Attorneys’ Eyes Only” documents, Respondent
`
`
`7 Id. at 12.
`8 Id. at 16.
`9 22 TTABVUE 3, ¶ 6.
`10 19 TTABVUE 3-4, ¶ 6; 22 TTABVUE 3, ¶ 6.
`11 22 TTABVUE 7-10.
`12 Id. at 7; 21 TTABVUE 6, n.3 (noting that Respondent’s use of the “Confidential” designation
`on interrogatory Nos. 8 and 10 was contingent on access being limited to Petitioner’s outside
`counsel and sole in-house counsel).
`
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`Cancellation No. 92066233
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`“maintains that these documents and responses contain competitive business
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`information including highly sensitive financial and/or marketing information that
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`would cause harm if disclosed to [Petitioner].”13
`
`2. Good Faith Effort
`
`Pursuant to § 14 of the Board’s Standard Protective Order, “[i]f the parties or their
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`attorneys disagree as to whether certain information should be protected, they are
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`obligated to negotiate in good faith regarding the designation by the disclosing party.
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`If the parties are unable to resolve their differences, the party challenging the
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`designation may make a motion before the Board seeking a determination of the
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`status of the information.”14
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`Petitioner’s counsel submitted a declaration, which details the parties’
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`negotiations,15 during which Respondent made certain qualified concessions.
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`However, the parties reached an impasse as to the response to interrogatory No. 9
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`and the six documents that remained designated as “Confidential – For Attorneys’
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`Eyes Only.” Furthermore, the parties continued to disagree about Respondent’s
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`insistence that only one of Petitioner’s in-house lawyers could review documents
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`redesignated as “Confidential.” We find that Petitioner has satisfied the good faith
`
`effort requirement prior to filing its motion.
`
`
`13 22 TTABVUE 7.
`14 Standard Protective Order ¶ 14.
`15 19 TTABVUE; 20 TTABVUE. The Board refers to the exhibits at 20 TTABVUE in general
`terms as they were designated confidential when filed.
`
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`Cancellation No. 92066233
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`3. The Board’s Standard Protective Order
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`a. In General
`
`The Board’s Standard Protective Order provides for two tiers of protected
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`information: (1) Confidential and (2) Confidential – For Attorneys’ Eyes Only (trade
`
`secret/commercially sensitive) (hereafter “AEO”). See TBMP § 412.01. The designations
`
`“Confidential” or “AEO” “should be limited to information that the producing party or
`
`their counsel has determined, in good faith, contains, reflects, or reveals non-public,
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`confidential, proprietary or commercial information that is not readily ascertainable
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`through proper means by the public or the receiving party, to the extent that information
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`either is the type of information that the party normally attempts to protect from
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`disclosure or is subject to privacy protection under federal, state or local law.” TBMP
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`§ 412.01(a). The “AEO” designation should be limited to information that “can be used
`
`in the operation of a business or other enterprise and that is sufficiently valuable and
`
`secret to afford an actual or potential economic advantage over others.” Id. (quoting
`
`RESTATEMENT (THIRD) OF UNFAIR COMPETITION § 39 (Am. Law Inst. 1995)). The Standard
`
`Protective Order identifies “types of information” that “may” qualify as “AEO”
`
`information, such as sensitive business information, including highly sensitive financial
`
`or marketing information, and competitive business information, including non-public
`
`financial and marketing analyses and strategic product/service expansion plans.
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`Standard Protective Order at ¶ 1 (emphasis added); see also TBMP § 412.10(a).
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`Cancellation No. 92066233
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`Parties may access information designated as “Confidential,” subject to any agreed
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`exceptions. See TBMP § 412.01. Parties, including in-house counsel, do not have access
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`to information designated “AEO.” Id.
`
`b. Respondent’s Responsibilities as Designating Party
`
`As the designating party, Respondent bears the burden of demonstrating that its
`
`confidentiality designations are appropriate. See Standard Protective Order ¶ 14; TBMP
`
`§ 412.01(b). To successfully carry this burden, Respondent “must demonstrate a
`
`particular need for protection and that a clearly defined and serious injury will result
`
`otherwise.” TBMP § 412.01(b); see, e.g., Deford v. Schmid Prods. Co., 120 F.R.D. 648, 653
`
`(D. Md. 1987) (collecting cases). Where the information sought to be protected is allegedly
`
`sensitive or competitive business information that is “AEO” information, Respondent
`
`“must show that disclosure would cause a clearly defined serious injury to its business
`
`such as harm to its competitive and financial position. Such a showing of harm to a
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`party’s business requires support, where possible, by affidavits or declarations and
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`concrete, specific examples.” TBMP § 412.01(b) (notes omitted); see also Deford, 120
`
`F.R.D. at 653. “Stereotyped and conclusory statements” are insufficient. TBMP
`
`§ 412.01(b); see FMR Corp. v. Alliant Partners, 51 USPQ2d 1759, 1761 (TTAB 1999); In
`
`re Bank One Sec. Litig., 222 F.R.D. 582, 588 (N.D. Ill. 2004) (“good cause does not permit
`
`‘stereotyped and conclusory statements’”) (quoting Gulf Oil Co. v. Bernard, 452 U.S. 89,
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`102 n.16 (1981)).
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`Cancellation No. 92066233
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`4. The Designations Dictate Level of Protection
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`The designations “Confidential” and “AEO” in the Board’s Standard Protective Order
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`dictate who has access to information, materials and documents responsive to discovery
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`requests. The terms of the Board’s Standard Protective Order may be modified, upon
`
`motion or upon stipulation approved by the Board. TBMP § 412.01. However, the parties
`
`may not agree to redefine the Board’s definition of what information constitutes
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`“Confidential” and “AEO” information. The parties may agree to change who has access
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`to information and materials, but the designations retain the meaning the Board
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`dictated in the Standard Protective Order. By way of example, under the Standard
`
`Protective Order, if a response is designated “Confidential,” it is reviewable by all in-
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`house counsel, but parties may agree to modify the Standard Protective Order to limit
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`access to “Confidential” material to specific individuals, regardless of their titles or roles.
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`That type of modification of the parties’ behavior with respect to the documents does not
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`purport to change the legal effect of the designations in the Standard Protective Order.
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`Here, the parties never mutually agreed to modify the Standard Protective Order;
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`nor did they submit a modified protective order for Board approval. Although
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`Respondent redesignated its responses to interrogatory Nos. 8 and 10 and certain of its
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`documents designated as “AEO” to “Confidential” on the condition that only a single in-
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`house counsel for Petitioner would be permitted access to those documents, Petitioner
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`reserved its right to challenge that unilaterally-imposed limitation, and does so in its
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`motion. Because of this residual dispute, we must address which of the two default
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`designations in the Board’s Standard Protective Order ― which govern unless the parties
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`Cancellation No. 92066233
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`stipulate otherwise ― applies. Below, we reviewed the original designations for the
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`responses to interrogatory Nos. 8-10 and each of the documents, Bates labeled
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`DME0001-DME00154 (except for DME000083, for which Respondent withdrew its
`
`confidentiality designation) to determine whether the original designations were
`
`appropriate under the Standard Protective Order.
`
`5. Respondent’s Confidentiality Designations
`
`a. Respondent’s Responses to Interrogatory Nos. 8-10
`
`i. Interrogatory No. 8
`
`Interrogatory No. 8 requests the identity of all agreements, including, but not limited
`
`to, license agreements, sponsorship agreements, and broadcast agreements relating to
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`the use of Respondent’s mark.16 In its response, Respondent identifies the names and
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`addresses of companies and individuals with whom it has entered into agreements
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`relating to, among other things,
`
`financing, business development, television
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`broadcasting, television production, and licensing.17
`
`Respondent argues that Petitioner and Respondent are direct competitors in the
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`business of organizing and promoting polo events and tournaments and that, if disclosed
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`to Petitioner’s officers and employees, the information responsive to interrogatory No. 8
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`“would allow Petitioner to unfairly leverage Respondent’s efforts to commercialize
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`[Respondent’s mark] by, among other things, targeting Respondent’s past business
`
`
`16 20 TTABVUE 19.
`17 Id. at 19-20.
`
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`Cancellation No. 92066233
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`partners and undercutting Respondent’s negotiating position in future business deals
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`with those partners.”18
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`The disclosure of information protected under the terms of the Standard Protective
`
`Order may be used only to facilitate the prosecution or defense of this Board proceeding.
`
`In addition, the recipient of any protected information disclosed in accordance with the
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`terms of the Standard Protective Order (e.g., outside counsel, in-house counsel,
`
`employees of the parties, etc.) is obligated to maintain the confidentiality of the
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`information and shall exercise reasonable care
`
`in handling, storing, using,
`
`disseminating, retaining, returning, and destroying the information. See Standard
`
`Protective Order at ¶ 11. Respondent has not produced any evidence supporting its fear
`
`that Petitioner will violate its obligations under the Standard Protective Order by
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`misusing designated information produced in this proceeding. Respondent’s fear is
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`speculative.
`
`Furthermore, although licensing agreements, sponsorship agreements, broadcast
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`agreements, and the like may contain information that merits the “AEO” designation,
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`Respondent does not provide any details concerning any such agreements in response to
`
`interrogatory No. 8. Rather, Respondent merely identifies the names and addresses of
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`companies and individuals with whom it has entered into unidentified agreements.
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`Respondent does not provide information concerning what relationship or agreement it
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`had or has with any specific company or individual or identify any confidentiality
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`agreements between Respondent and the third parties that would prevent the disclosure
`
`
`18 21 TTABVUE 6.
`
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`9
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`Cancellation No. 92066233
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`of the names of the companies and individuals. Moreover, in its answer to the petition to
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`cancel, Respondent identifies the names of companies with whom it has had
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`relationships, including ESPN, Lexus, and Tiffany & Co.19 Indeed, Respondent organized
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`polo events that were broadcast on ESPN, and therefore many of its relationships were
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`publicly known via those broadcasts. Unlike, for example, a list that identifies a party’s
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`customer names, which may be entirely undiscoverable or only discoverable in limited
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`form (such as in abandonment cases), see TBMP § 414, here, there is insufficient context
`
`for the list of names provided in response to interrogatory No. 8 to maintain an “AEO”
`
`designation.
`
`Respondent has not shown that disclosure of the information provided in response to
`
`interrogatory No. 8 will cause any injury to Respondent’s business, let alone a clearly
`
`defined serious injury. As such, Respondent has failed to demonstrate good cause to
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`designate its response to interrogatory No. 8 as “AEO.” However, the response to
`
`interrogatory No. 8 does include personal identifying information of certain individuals,
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`namely, names and addresses,20 and Respondent represents that there are concerns
`
`about respecting the privacy of these individuals. Accordingly, although Respondent may
`
`
`19 15 TTABVUE 3-5, ¶¶ 8, 12, 14.
`20 “Personal identifying information” typically includes, among other things, a person’s name,
`address, email address, telephone number, driver’s license number, and social security
`number. See, e.g., N.Y. Lab. Law § 203–d(1)(d) (McKinney 2009) (defining “personal
`identifying information”); Cal. Penal Code § 530.55 (2007) (same); Nev. Rev. Stat. Ann.
`205.4617 (same); S.C. Code Ann. § 30-2-30 (1976) (same); see also Smith v. Dep’t of Labor,
`798 F. Supp. 2d 274, 284 (D.D.C. 2011) (referring to “personal identifying information” as
`including “a person’s name, address, phone number, date of birth, criminal history, medical
`history, and social security number”). The party identifying the personal identifying
`information bears the burden to support its designation under the Standard Protective Order
`or its refusal to produce such information based on privacy concerns.
`
`
`
`
`10
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`Cancellation No. 92066233
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`not use the “AEO” designation, Respondent may redesignate the response to
`
`interrogatory No. 8 as “Confidential” pursuant to the terms of the Standard Protective
`
`Order.
`
`ii. Interrogatory No. 9
`
`Interrogatory No. 9 requests Respondent’s annual gross revenues, by year, from the
`
`use of Respondent’s mark in the United States from the date of first use of Respondent’s
`
`mark until the present.21 In its response, Respondent identifies its approximate total
`
`revenue received in connection with Respondent’s use of Respondent’s mark.22
`
`In addition to generally arguing that Respondent and Petitioner are direct
`
`competitors and expressing the same concerns identified above for interrogatory No. 8,
`
`Respondent urges that this information qualifies for the “AEO” designation because it
`
`generally labels its revenues as “competitive business information including highly
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`sensitive financial and/or marketing information that would cause harm if disclosed to
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`[Petitioner].”23
`
`Respondent, however, does not identify what harm will occur if this information is
`
`disclosed to Petitioner or how Petitioner could misuse a figure that identifies
`
`Respondent’s total gross revenue to date. Respondent thus has not shown that wrongful
`
`use or disclosure of the information provided in response to interrogatory No. 9 will cause
`
`serious injury to Respondent’s business. As such, Respondent has failed to carry its
`
`burden of demonstrating good cause to use the heightened “AEO” designation for its
`
`
`21 20 TTABVUE 20.
`22 Id.
`23 21 TTABVUE 5.
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`Cancellation No. 92066233
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`response to interrogatory No. 9. However, because revenues are routinely treated as
`
`confidential information in Board proceedings, see Bass Pro Trademarks LLC v.
`
`Sportsman’s Warehouse, Inc., 89 USPQ2d 1844, 1849 (TTAB 2008) (“Respondent is
`
`advised that we will consider only information that is truly confidential as confidential
`
`(e.g., sale expenditures, revenues, trade secrets, etc.).”), the response to interrogatory
`
`No. 9 may be redesignated as “Confidential” pursuant to the terms of the Standard
`
`Protective Order.
`
`iii. Interrogatory No. 10
`
`Interrogatory No. 10 requests the identity of all persons with whom Respondent or
`
`anyone acting on Respondent’s behalf communicated regarding the use of Respondent’s
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`mark in the United States over the last 10 years.24 In its response, Respondent identifies
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`a list of individuals, with no identifying information beyond the individual’s name.25
`
`Respondent’s arguments for designating as confidential the names listed in response
`
`to interrogatory No. 10 are the same for designating the names listed in response to
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`interrogatory No. 8, some of which overlap.26 The result is also the same, because
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`Respondent has failed to demonstrate good cause to designate its response to
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`interrogatory No. 10 as “AEO.” Although there may be aspects of Respondent’s
`
`relationships or communications with the individuals listed in response to interrogatory
`
`No. 10 that could merit the designation of “AEO,” Respondent does not provide any
`
`
`24 20 TTABVUE 21.
`25 Id. at 21-22.
`26 21 TTABVUE 6.
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`Cancellation No. 92066233
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`information concerning the individuals listed to support an “AEO” designation. Instead
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`Respondent merely identifies the names of individuals with whom it has communicated.
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`Respondent has not shown that disclosure of the information will cause serious injury
`
`to Respondent’s business, let alone a clearly defined serious injury. Accordingly, the
`
`response to interrogatory No. 10 may not be designated as “AEO.” However, in view of
`
`Respondent’s reasonable representation that there was an expectation of privacy for
`
`these third parties, Respondent may redesignate the response to interrogatory No. 10 as
`
`“Confidential” pursuant to the terms of the Standard Protective Order.
`
`b. Respondent’s “AEO”-designated Documents
`
`The six categories of documents whose designation as “AEO” is disputed can be
`
`broken down into the following categories:
`
`(i)
`
`(ii)
`
`agreements with ESPN and related documents (Bates Nos. DME000001-03,
`DME000004-06, DME000007, DME000008-09, DME000010-11, DME000012,
`DEM000029-31, and DME000032-43);
`financing and operating agreements (Bates Nos. DME000013-019 and
`DME000020-28);
`(iii) documents related to sponsorship opportunities (Bates Nos. DME000044-72,
`DME000073-75, DME000076, and DME000154);
`daily planner entries and handwritten notes (Bates Nos. DME000077,
`DME000078, DME000091-92, DME000098-153);
`documents related to Respondent’s plans
`in 2017
`DME000082, DME000083,27 DME000084-90); and
`invoices (Bates Nos. DME000093-97).
`
`(iv)
`
`(v)
`
`(vi)
`
`(DME000079-81,
`
`
`27 Respondent withdrew its confidentiality designation from the document bearing Bates No.
`DME000083. As such, DME000083 is not addressed in this order.
`
`
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`Cancellation No. 92066233
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`
`i. Agreements with ESPN and Related Documents
`Respondent produced its television agreement with ESPN (as amended) and several
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`documents concerning its negotiations with ESPN. The documents are dated between
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`September 2002 and February 2007. Respondent argues that these documents should be
`
`designated “AEO” because Respondent and Petitioner are direct competitors,
`
`Respondent specifically alleges that Petitioner wants to have its own series of polo
`
`events, and the documents and information produced by Respondent “constitute
`
`Respondent’s exclusive blueprint for the successful packaging of national sponsors for a
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`series of nationally televised, high-level polo tournaments.”28 Respondent fears that, by
`
`gaining access to the documents, Petitioner could use that information to copy
`
`Respondent’s business model and undercut Respondent’s own business.29
`
`Petitioner argues, among other things, that the documents should be designated at
`
`most “Confidential” and do not merit an “AEO” designation because the documents
`
`related to ESPN are more than ten years old and the ESPN agreement is expired.30
`
`First, Respondent’s fear that Petitioner will misuse designated information in
`
`violation of the Standard Protective Order is again speculative. Respondent has not
`
`produced any evidence supporting that fear. See, e.g., Deford, 120 F.R.D. at 654
`
`(“Speculative allegations of injury from the disclosure of years-old information are not
`
`sufficient to warrant issuance of a protective order.”).
`
`
`28 23 TTABVUE 3-4, ¶ 6.
`29 Id.
`30 25 TTABVUE 9-10.
`
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`Cancellation No. 92066233
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`
`Second, although both parties maintain that they are in the business of organizing
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`polo events,31 and therefore are considered competitors for purposes of this motion, the
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`age of the documents is relevant. Where commercially sensitive information is stale, this
`
`can undermine a party’s claim that disclosure will create a competitive disadvantage.
`
`See, e.g., Deford, 120 F.R.D. at 654 (“While staleness of the information sought to be
`
`protected is not an absolute bar to issuance of an order, it is a factor which must be
`
`overcome by a specific showing of present harm.”); In re Parmalat Sec. Litig., 258 F.R.D.
`
`236, 250 (S.D.N.Y. 2009) (rejecting, in the absence of supporting evidence, party’s
`
`argument that, from stale financial information over seven years old, a “competitor could
`
`… target certain member firms and attempt to lure them away ... by offering them more
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`competitive fees”).
`
`The ESPN agreement itself does not per se merit an “AEO” designation. Although
`
`the ESPN agreement discloses certain financial terms of the broadcast relationship
`
`between Respondent and ESPN, that information is stale. The ESPN agreement is more
`
`than thirteen years old and appears to have expired more than ten years ago. The ESPN
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`agreement does not include a confidentiality clause, and Respondent has produced no
`
`evidence that Respondent and ESPN had a confidentiality agreement in connection with
`
`their contractual relationship. The ESPN agreement also does not disclose forward-
`
`looking strategies for marketing or staging the event. As such, Respondent has failed to
`
`carry its burden of demonstrating good cause to designate the ESPN agreement (as
`
`amended), namely Bates Nos. DEM000029-31 and DME000032-43, as “AEO.” However,
`
`
`31 1 TTABVUE 2-3, ¶ 1; 15 TTABVUE 3-4, ¶¶ 8-11.
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`15
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`Cancellation No. 92066233
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`in view of Respondent’s representation that the ESPN agreement is non-public and that
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`there was an expectation of privacy with ESPN, the Board will permit Bates Nos.
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`DEM000029-31 and DME000032-43 to be designated as “Confidential” pursuant to the
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`terms of the Standard Protective Order.
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`The documents reflecting and summarizing the negotiations between Respondent
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`and ESPN stand on different footing than the ESPN agreement, as they disclose
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`sensitive business information and competitive business information of the type that
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`qualifies as “AEO,” including, for example, discussions concerning marketing,
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`production, and staging strategies, where such strategies could be extrapolated out to
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`present day use. See, e.g., Zenith Radio Corp. v. Matsushita Elec. Indus. Co., 529 F. Supp.
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`866, 892 (E.D. Pa. 1981) (“[O]ld business data may be extrapolated and interpreted to
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`reveal a business’ current strategy, strengths, and weaknesses”). As such, the following
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`documents related to Respondent’s negotiations with ESPN may be designated “AEO”:
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`Bates Nos. DME000001-03, DME000004-06, DME000007, DME000008-09,
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`DME000010-11, and DME000012.
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`ii. Financing and Operating Agreements
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`Respondent produced financing and operating agreements under the “AEO”
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`designation. These documents identify individual members of Respondent as well as the
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`ownership shares of each of Respondent’s members. Petitioner argues that these
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`documents should be designated at the lower “Confidential” level, and to the extent there
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`Cancellation No. 92066233
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`is financial information that should not be seen by Petitioner, Petitioner argues that
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`those portions can be redacted.32
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`Under the Standard Protective Order, if a document contains “AEO” information,
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`then the document may be designated as such. The entirety of the document does not
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`have to contain “AEO” information for the designation to be appropriate. Therefore, we
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`reject Petitioner’s argument that we should order Respondent to redact any “AEO”
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`information and then de-classify the redacted document to “Confidential.” Although the
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`financing and operating agreements are over ten years old, they disclose the ownership
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`shares of each of Respondent’s members, and nothing in the record suggests that that
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`information is stale. As such, the financing and operating agreements, namely Bates
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`Nos. DME000013-019 and DME000020-28, have appropriately been designated as
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`“AEO.”33
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`iii. Documents Related to Sponsorship Opportunities
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`Respondent produced documents related to sponsorship opportunities and
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`sponsorship pitch materials under the “AEO” designation. The sponsorship documents
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`appear to all be from 2008. Respondent argues that Petitioner “could misappropriate
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`Respondent’s past pitch materials in an effort to persuade past or potential sponsors to
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`32 25 TTABVUE 9-10.
`33 Although not required to produce redacted portions of “AEO” information or to produce
`redacted copies of “AEO” information, the parties are expected to cooperate with one another
`in the discovery process. See TBMP § 408.01. Such cooperation should include consideration,
`as appropriate, of requests to redact information from documents designated “AEO” so that
`the redacted version may be treated as “Confidential,” and thereby reviewed by parties and
`counsel, not just outside counsel.
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`Cancellation No. 92066233
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`partner with [Petitioner] instead of Respondent.”34 Respondent also argues that
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`Petitioner “would better understand what Respondent has offered its partners in
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`exchange for past sponsorship commitments, and could develop more beneficial terms”
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`and Petitioner “would learn the dollar amounts associated with Respondent’s past
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`contracts, which it could use to bid on or negotiate future relationships with
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`Respondent’s partners.”35
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`Petitioner argues that the sponsorship documents are ten years old and, in addition,
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`urges that these documents should not be considered confidential because they were
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`shared with third parties.36
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`Bates Nos. DME000044-72 and DME000073-75 comprise pitch materials to a specific
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`company, pitching that company to be a sponsor for Respondent’s 2008 polo events. The
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`pitch materials disclose Respondent’s marketing strategies and ways those strategies
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`will be executed, which is information that could be extrapolated to present use. See, e.g.,
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`Zenith Radio Corp., 529 F. Supp. at 892 (E.D. Pa. 1981). Such sensitive business
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`information is of the type that qualifies as “AEO” information. As such, Respondent
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`appropriately used the “AEO” designation for the pitch materials, namely Bates Nos.
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`DME000044-72 and DME000073-75.
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`Bates No. DME000076 was also appropriately designated as “AEO” because it
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`identifies not only the rate for the 2008 sponsorship opportunity, but also Respondent’s
`
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`34 21 TTABVUE 7.
`35 Id.
`36 25 TTABVUE 8-9.
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`Cancellation No. 92066233
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`costs associated with the sponsorship. Costs specifically related to the sponsorship pitch
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`may be designated as “AEO.”
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`The final sponsorship document is Bates No. DME000154, titled “Title Sponsorship.”
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`It is a one-page summary of the benefits from sponsoring Respondent’s polo events. The
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`document includes contact information if the recipient of the document is interested in
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`learning more information about being a sponsor. This document does not appear to have
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`been targeted to any specific company. On its face, it was presumably provided to third
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`parti