Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA918291
`
`Filing date:
`
`08/27/2018
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`92067494
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Attachments
`
`Plaintiff
`Hewlett Packard Enterprise Development LP
`
`James F. Struthers
`Richard Law Group
`13355 Noel Road, Suite 1350
`Dallas, TX 75240
`UNITED STATES
`clarissa@richardlawgroup.com, jim@richardlawgroup.com, dav-
`id@richardlawgroup.com
`214-206-4300
`
`Reply in Support of Motion
`
`David J. Diamond
`
`clarissa@richardlawgroup.com, david@richardlawgroup.com,
`jim@richardlawgroup.com
`
`/David J. Diamond/
`
`08/27/2018
`
`Reply in Support of Motion to Compel with Exhibits - Redacted.pdf(1192604
`bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
` Cancellation No. 92067494
`
` Mark: MY APOLLO
`
` Reg. No.: 4,668,175
`
`§ §
`
`
`§
`§
`§
`§
`§
`§
`§
`§
`
`Petitioner,
`
`v.
`
`HEWLETT PACKARD ENTERPRISE
`DEVELOPMENT LP,
`
`
`
`
`
`ARROWARE INDUSTRIES, INC.,
`
`
`
`Registrant.
`
`
`
`
`
`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL
`REGISTRANT’S INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
`
`Petitioner Hewlett Packard Enterprise Development LP (“HPED”) files this Reply in
`
`
`
`Support of Its Motion to Compel Registrant’s Interrogatory Responses and Document Production
`
`(the “Motion,” 7-8 TTABVUE) and respectfully shows as follows:
`
`I.
`
`INTRODUCTION
`
`Arroware’s Response in Opposition to Petitioner’s Motion to Compel Registrant’s
`
`Interrogatory Responses and Document Production (“Opposition Brief,” 9 TTABVUE) and
`
`concurrent supplementation of its interrogatory responses fail to remedy its discovery deficiencies
`
`or obviate HPED’s need for Board relief. Instead, Arroware attempts to deflect attention from its
`
`discovery shortcomings through untimely objections and a host of satellite issues. Once
`
`Arroware’s smokescreen is cast aside, its Opposition Brief and supplementation reflect that
`
`Arroware cannot or will not comply with its discovery obligations without Board intervention.
`
`Not only does Arroware fail to demonstrate that it meets all three prerequisites for invoking
`
`Rule 33(d), but the documents identified in its interrogatory supplementation fail to respond to
`
`HPED’s interrogatories in multiple instances. Furthermore, Arroware cannot have it both ways
`
`and declare that its document production is substantially complete but that no further production
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`
`
`
`
`
`

`

`is required. The meet-and-confer process precipitating this Motion reflects HPED’s exhaustive
`
`efforts to resolve Arroware’s discovery deficiencies short of Board intervention. In view of this
`
`record, Arroware’s suggestion that HPED “jumped the gun” in filing this Motion is absurd.1 (Opp.
`
`Br. at 3, 9 TTABVUE 4.)
`
`II. FACTUAL BACKGROUND
`
`Arroware has alleged baseless and irrelevant fraud allegations wholly unrelated to this
`
`proceeding at every turn, and its Opposition Brief is no different. (Opp. Br. at 5-7 & n.2, 9
`
`TTABVUE 6-8.) HPED has been reluctant to indulge Arroware by responding to its mudslinging,
`
`but out of an abundance of caution, HPED wishes to set the record straight.
`
`Hewlett Packard Development Company LP (“HPDC”), through its counsel James F.
`
`Struthers, renewed Registration No. 1312102 for the mark APOLLO in 2004 using screenshot
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`specimens of the website <www.ap-sure.com/myapollo/support/1200_down.htm>. Arroware has
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`mischaracterized this website as an “unaffiliated third party” site and repeatedly has alleged that
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`“these materials were not being offered and hosted by Applicant at that time in 2005 [sic].” (See,
`
`e.g., Answer Ex. 1 ¶ 24, 4 TTABVUE 18-19.) However, the sworn affidavit of Arroware’s witness
`
`Harminder S. Dhani disclosed to HPED in the related Canadian proceedings avers that [
`
`Redacted
`
`
`
`
`
`.] (See Aff. of Harminder S. Dhani ¶ 13, Ex. 4, attached as Exhibit 16.2) A review of the
`
`
`1 By contrast, Arroware complains of certain discovery responses for the first time in its Opposition Brief,
`even though the time period between HPED’s responses and the filing of the Opposition Brief was merely
`two weeks without so much as a request to meet-and-confer. (Opp. Br. at 15, 9 TTABVUE 16.)
`
`2 Exhibits are numbered consecutively from HPED’s Motion. The propriety of certain disclosures by Dhani
`and the intended use of his affidavit by Arroware in the Canadian proceedings are currently in dispute, and
`therefore this evidence is filed under seal. Brackets reflect information redacted in the publicly available
`version of this Reply concurrently filed herewith. See TBMP § 502.02(e).
`
`
`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL REGISTRANT’S
`INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
`
`Page 2
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`

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`same <archive.org> evidence relied upon by Arroware shows that HPDC’s related entities were
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`offering printer drivers and related manuals through <www.ap-sure.com> pre- and post-renewal.
`
`This is not the only time that Arroware has mischaracterized documents to fit its false
`
`narrative. In support of its defenses of acquiescence and estoppel, which as equitable defenses are
`
`unavailable against abandonment claims and therefore completely irrelevant, Arroware asserts that
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`HPED sought Arroware’s consent to register and use the APOLLO mark and “indicated . . . that
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`Petitioner recognizes Registrant as a senior user with superior rights and that Petitioner has
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`abandoned its prior rights in the APOLLO mark.” (Opp. Br. Ex. A at 30, 33, 9 TTABVUE 57,
`
`60.) Arroware omits that this consent request pertained to registration in Russia, which has no
`
`bearing on rights within the United States. Furthermore, nowhere in this consent request is any
`
`recognition of Arroware as “a senior user with superior rights” or any indication that HPED had
`
`abandoned its APOLLO mark. (See A0001297-98 attached as Exhibit 17.)
`
`Arroware also bases its meritless fraud allegations on the December 4, 2014, response to
`
`an office action for Serial No. 86296023, an application that has no bearing on this proceeding.
`
`(See e.g., Opp. Br. Ex. A at 23-24, 9 TTABVUE 50-51.) This response speaks for itself, and there
`
`is nothing incorrect or fraudulent about the arguments asserted therein, nor does it have any
`
`relevance to this proceeding. Not only do these unfounded allegations pertain to separate matters
`
`that have no bearing on this cancellation, but the allegations are all the more untoward since none
`
`of HPED’s actions have any relevance apart from substantiating its standing to file the petition for
`
`cancellation in December 2017. Arroware’s insistence on lobbing false and unfounded accusations
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`speaks only to its inability to contest the merits of HPED’s abandonment claim and this Motion.
`
`III. ARGUMENT & AUTHORITIES
`
`As a threshold matter, HPED’s use of 12-point, double-spaced font for the body of its
`
`Motion and the inclusion of an optional table of contents demonstrates that its typography for its
`
`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL REGISTRANT’S
`INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
`
`Page 3
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`

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`eight footnotes was no “subterfuge” to evade page limits, nor does the positioning or spacing of
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`its signature and certificates violate the Board’s rules. See Moringa & Co. v. Crown Confectionery,
`
`Co., Opp. No. 91171726, 2011 WL 810192, at *3-4 (T.T.A.B. Feb. 17, 2011); see also 37 C.F.R.
`
`§ 2.127(a) (omitting signatures and certificates from the page limit components for motion briefs).
`
`A. Arroware’s Interrogatory Responses Remain Defective, and the Board Should
`Order Complete, Narrative Responses
`
`
`1. The Supplementation to Arroware’s Interrogatory Reponses Is Defective
`
`Arroware provides no explanation or authority for why it should be excused from meeting
`
`all three clear prerequisites for invoking Rule 33(d).3 (See Mot. at 11-13, 8 TTABVUE 12-14.)
`
`Arroware asserts without any support that “Arroware, as the producing party, has no inherent
`
`advantage in analyzing its specifically identified documents,” (Opp. Br. at 8, 9 TTABVUE 9),
`
`even though the Board has repeatedly held that the exact opposite is usually the case. (Mot. at 13,
`
`8 TTABVUE 14.) However, the Board need not weigh whether the burden is substantially the
`
`same for both parties since the first two prerequisites remain unmet. See Jain v. Rampart Inc., 49
`
`U.S.P.Q.2d 1429, 1434 (T.T.A.B. 1998). First, Arroware fails to quantify how responding with
`
`narrative answers would impose a significant burden. Second, Arroware has failed to identify
`
`documents that cogently respond to multiple interrogatories, as illustrated below.
`
`For instance, Arroware identifies a purported list of software users corresponding to Bates
`
`label A0002408 in its supplemental response to Interrogatory No. 15, which requests the
`
`identification of third-parties who Arroware has expressly allowed to use its mark within the
`
`United States. (Opp. Br. at 10, 9 TTABVUE 11.) Arroware then states the following:
`
`It is also not true that “[n]or has Arroware produced documents expressly
`permitting third-party use of its Mark responsive to Request for Production No.
`22.” Arroware produced its end user license agreement. (A[00]01427) Arroware
`
`
`3 Since Arroware supplemented Interrogatory No. 5 with a narrative response, HPED withdraws this
`interrogatory from the scope of its requested order.
`
`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL REGISTRANT’S
`INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
`
`Page 4
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`

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`has not located additional documents after a reasonable search.
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`(Opp. Br. at 19, 9 TTABVUE 20.) However, the terms of the end user license agreement
`
`corresponding to Bates label A0001427 expressly state: “These terms do not grant you any rights
`
`to use MyApollo trademarks, logos, domain names, or other brand features.” (See A0001427
`
`attached as Exhibit 18.) In light of this disclaimer, apparently none of the users identified in
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`A0002408 have express permission to use Arroware’s MY APOLLO mark, and Arroware has
`
`failed to meaningfully identify any documents responsive to Interrogatory No. 15.
`
`
`
`In addition, Arroware identifies purported advertising expenditure statements from 2013-
`
`2015 corresponding to Bates label A0001963-64 in response to Interrogatory No. 10, which
`
`requests the identification of aggregate U.S. advertising and promotion expenditures. (Opp. Br. at
`
`10, 9 TTABVUE 11.) However, certain line items in these documents reflect that they are Canada-
`
`specific expenditures, leaving HPED guessing as to which of the expenditures, if any, are specific
`
`to the United States. (See A0001963-64 attached as Exhibits 19-20.) “It is well settled that activity
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`outside of the United States does not create rights in marks within the United States,” and therefore
`
`Arroware’s identified documents fail to meaningfully respond to the interrogatory. See Linville v.
`
`Rivard, 41 U.S.P.Q.2d 1731, 1736 (T.T.A.B. 1996). Arroware claims that all documents
`
`responsive to HPED’s Request for Production No. 11 (seeking aggregate U.S. advertising and
`
`promotion expenditures) have been produced, which underscores that a narrative response is
`
`required to distinguish expenditures for U.S. activities. (Opp. Br. at 20-21, 9 TTABVUE 21-22.)
`
`
`
`In response to Interrogatory No. 4 regarding Arroware’s purported plans to resume use of
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`its mark in U.S. commerce, Arroware identifies among other documents an email whose substance
`
`appears to be completely redacted. (Opp. Br. at 9, 9 TTABVUE 10; see A0001602-03 attached as
`
`Exhibit 21.) HPED certainly cannot derive answers from redacted documentation.
`
`Finally, Arroware identifies a handful of documents in its supplementation to Interrogatory
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`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL REGISTRANT’S
`INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
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`Page 5
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`

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`No. 17, requesting that Arroware state all facts supporting its denial of Paragraph 4 of HPED’s
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`Petition for Cancellation filed on December 8, 2017, which reads as follows: “Registrant is not
`
`using the Mark in commerce in connection with the Goods.” (Opp. Br. at 10, 9 TTABVUE 11.)
`
`Of these documents, only one pertains to time periods on or after the petition filing date of
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`December 8, 2017. (See A0002502-05, A0006875-76, and A0002490-94 attached as Exhibits 22-
`
`27.4) Arroware’s failure to identify responsive documents even when under Board scrutiny
`
`demonstrates the necessity of traditional, narrative responses.
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`Furthermore, Arroware’s inability to accurately interpret its own documents undermines its
`
`argument that it should be excused from providing narrative responses simply because it claims to
`
`have produced documents responsive to requests for production covering similar subject matter.
`
`(Opp. Br. at 13-15, 9 TTABVUE 14-16.) Interrogatories and document requests are
`
`complementary and not mutually exclusive, and Arroware’s failure to identify its own documents
`
`to provide responsive information underscores the importance of responding to interrogatories
`
`with sworn, narrative answers in addition to producing documents substantiating those responses.
`
`2. Arroware’s Untimely and Improper Objection to Purportedly Excessive
`Interrogatories Should Be Overruled
`
`Arroware attempts to justify an untimely and improper objection to purportedly excessive
`
`interrogatories through the unsupported contention that the procedure mandated by Trademark
`
`Rule 2.120(d) and TBMP § 405.03(e) “is just one way to handle them.” (Opp. Br. at 12, 9
`
`TTABVUE 13.) On the contrary, a party must follow the letter of Trademark Rule 2.120(d):
`
`This practice has been in place for over two decades and articulated in the TBMP
`for many years…[i]t could scarcely be made any clearer. When a party, in good
`faith, believes the interrogatories with which it has been served exceed the limit
`
`
`4 A0002408 purports to be a list of Arroware’s users showing no new users after early 2015. Due to volume,
`this document has been omitted from HPED’s supporting exhibits. A0002502-05 comprises screenshots
`of Arroware’s YouTube account showing that no new video content has been uploaded since 2013,
`evidencing no use in commerce on or after the filing date of the petition rather than the contrary.
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`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL REGISTRANT’S
`INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
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`Page 6
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`

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`and the party is not willing to waive this basis for objection, the party shall, within
`the time for (and instead of) serving answers and specific objections, serve a
`general objection on the ground of their excessive number.
`
`Emilio Pucci Int’l BV v. Sachdev, 118 U.S.P.Q.2d 1383, 1385 (T.T.A.B. 2016) (emphases added);
`
`see also TBMP § 405.03(e) (requiring that a party “must” serve a general objection). HPED’s
`
`discovery requests are well within the maximum allowable number, but the Board need not assess
`
`subparts or weigh any claimed attendant burden since any such objection is waived when a party,
`
`as here, disregards Trademark Rule 2.120(d) and TBMP § 405.03(e). See, e.g., Magnet Records
`
`Ltd. v. Magnet Interactive Grp., Inc., Opp. No. 91104044, 2000 WL 381486, at *2 (T.T.A.B. April
`
`14, 2000) (“[A]pplicant did not serve a general objection on this basis, but rather served answers
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`and specific objections. In such circumstances, applicant waived its right to object on this basis.”).
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`B. “Substantially Complete” Production Is Not Complete Production, and the Board
`Should Compel Full Production Responsive to HPED’s Document Requests
`
`Arroware fails to quantify any claimed burden imposed by HPED’s document requests.
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`Rather, it claims that it has few documents and that its production is “substantially complete.”
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`(Opp. Br. at 15, 9 TTABVUE 16.) However, “substantially complete” is not complete. If
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`Arroware truly has so few documents, then it should pose no issue to simply produce them and to
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`amend its responses to confirm that no additional responsive documents have been identified.
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`Furthermore, Arroware’s thin explanations of its conspicuously sparse documentation from
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`2015-2018 reinforce the need for full production. Arroware’s user activity log reflects no activity
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`after early 2015, its index of frequency of use shows no use after early 2015, and the Kinsman
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`Affidavit reflects that Arroware was not adding new users starting in 2015. (See Opp. Br. at 16, 9
`
`TTABVUE 17; Mot. Ex. 14 ¶ 28, 7 TTABVUE 233.) In this context, Arroware’s denial of any
`
`cessation and its explanations for the holes in its documentation are highly suspect:
`
`• “Just because Arroware did not collect this user information later does not mean
`that it stopped using the MY APOLLO mark.” (Opp. Br. at 16, 9 TTABVUE 17);
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`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL REGISTRANT’S
`INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
`
`Page 7
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`

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`• “[J]ust because Arroware did not later collect extensive user information as it did
`initially, does not mean that it stopped using the MY APOLLO mark.” (Id. at 22
`n.9, 9 TTABVUE 23);
`
`• “Arroware did not collect the names, addresses, and contact information of its users,
`except for a brief period in 2013-14.” (Id. at 19, 9 TTABVUE 20); and
`
`•
`
` “[I]t is not surprising that substantial investments of capital is made by Arroware
`without extensive documentation.” (Id. at 22, 9 TTABVUE 23.)
`
`HPED should not be required to simply accept Arroware’s denial of nonuse and take its word that
`
`any unproduced documents are inconsequential. Such denials are like proclamations of intent to
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`resume use of a mark, which “are awarded little, if any, weight.” Rivard v. Linville, 45 U.S.P.Q.2d
`
`1374, 1376 (Fed. Cir. 1998). The Board accordingly should require Arroware to complete its
`
`production of all documents responsive to the requests at issue in HPED’s Motion and amend its
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`responses to confirm that no additional responsive documents have been identified.
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`C. Arroware’s Unsupported Assertion of Per Se Rules Does Not Obviate This Motion
`
`Arroware contends without authority that the three-year period comprising the prima facie
`
`case for abandonment “was cut short by HPED’s filing of this cancellation proceeding on
`
`December 8, 2017,” and that the period following the filing of HPED’s petition “does not count
`
`toward abandonment as the registrant’s alleged non-use is excused by the need to defend the
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`mark.” (Opp. Br. at 17, 9 TTABVUE 18.) But HPED is not required to establish the prima facie
`
`case to prove a case for abandonment. See 15 U.S.C. § 1127. Rather, the prima facie case is but
`
`one way of doing so. See Rivard, 45 U.S.P.Q.2d at 1376. Therefore Arroware’s assertion of a per
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`se cutoff rule does not defeat HPED’s claim nor preclude this Motion. Regardless, such a per se
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`rule has been squarely rejected by the Board. See U.S. Olympic Comm. v. Kayser-Roth Corp.,
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`Canc. No. 92021648, 2004 WL 188196, at *6-7 (T.T.A.B. Jan. 23, 2004) (denying that any per se
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`rule excluded the nonuse of a mark following commencement of a cancellation proceeding).
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`Even if Arroware attempted to claim excusable nonuse after the filing of the petition for
`
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`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL REGISTRANT’S
`INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
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`Page 8
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`

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`cancellation in this proceeding—which it raises for the first time in its Opposition Brief—the
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`veracity and merits of such claim are proper subjects for discovery. Indeed, the Board and its
`
`reviewing court have found the veracity of such claims and the credibility of supporting testimony
`
`wanting, which reflects that HPED is entitled to probe the basis for this new claim through
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`discovery. See, e.g., Linville v. Rivard, 41 U.S.P.Q.2d 1731, 1740 (T.T.A.B. 1996), aff’d, 45
`
`U.S.P.Q.2d 1374, 1377 (Fed. Cir. 1998). Arroware’s self-serving double-talk in claiming intent
`
`to resume use of its mark but at the same time claiming that any nonuse is excused has in fact been
`
`found to undermine any excusable nonuse claim. See id. (finding the negotiation of licenses for
`
`the use of respondent’s mark after the filing of the petition for cancellation to belie claimed
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`excusable nonuse).
`
`D. The Specter of a Dispositive Motion Does Not Obviate HPED’s Motion to Compel
`
`Arroware argues that this Motion is moot due to its intended “motion to dismiss or for
`
`summary judgment on collateral estoppel and other grounds.” (Opp. Br. at 5, 9 TTABVUE 6.)
`
`But all of Arroware’s affirmative defenses fail as a matter of law. “Where the ground for
`
`cancellation is abandonment, equitable defenses such as laches, bad faith and unclean hands, are
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`not available in light of the overriding public interest in removing abandoned registrations from
`
`the register.” Amer. Vitamin Prods., Inc. v. Dowbrands, Inc., 22 U.S.P.Q.2d 1313, 1314 (T.T.A.B.
`
`1992). Furthermore, any issue attendant to the withdrawal of Serial No. 86296023, which forms
`
`the basis of Arroware’s collateral estoppel defense, “was not actually litigated before the Board,”
`
`and therefore “collateral estoppel does not apply.” Stoller v. Hyperstealth Biotech Corp., 131 Fed.
`
`Appx. 280, 283 (Fed. Cir. 2005). Arroware cites no authority to justify that a future dispositive
`
`motion should preclude a present motion to compel, and the Board should disregard this request.
`
`E. Case Deadlines Should Be Reset to Allow for Expert Designations
`
`Arroware is wrong in asserting that this proceeding has not been suspended and that any
`
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`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL REGISTRANT’S
`INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
`
`Page 9
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`

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`expert deadline has passed. See 37 C.F.R. 2.120(f)(2); see also TBMP § 510.03(a) n.13 (citing
`
`Jain v. Ramparts Inc., 49 U.S.P.Q.2d 1429, 1430 (T.T.A.B. 1998) (proceedings deemed suspended
`
`as of the filing of the motion [to compel])) (emphasis added). Even if this proceeding was not
`
`suspended as of the filing of HPED’s Motion (which it was), HPED has presented good cause for
`
`resetting the expert disclosure deadline because any expert testimony will focus on, among other
`
`issues, Arroware’s nonuse and purported intent to resume use of its mark. HPED cannot designate
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`experts and provide expert disclosures when Arroware has not yet fully produced the information
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`and documents on which HPED’s experts would rely to reach their opinions.
`
`IV. CONCLUSION
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`WHEREFORE, HPED respectfully requests that the Board grant its Motion and reset the
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`schedule for this proceeding to allow for expert designations and further discovery.
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`
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`
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`Respectfully submitted,
`
`RICHARD LAW GROUP, INC.
`
`By: /David J. Diamond/
`
`James F. Struthers
`
`David J. Diamond
`
`13355 Noel Road, Suite 1350
`
`Dallas, Texas 75240
`
`Telephone: (214) 206-4300
`
`Facsimile: (214) 206-4330
`
`jim@richardlawgroup.com
`
`david@richardlawgroup.com
`
`Counsel for Petitioner Hewlett Packard
`Enterprise Development LP
`
`
`CERTIFICATE OF SERVICE
`
`
`I hereby certify that on August 27, 2018, a true and complete copy of the foregoing
`
`document was served upon Registrant Arroware Industries, Inc., through its counsel of record
`Timur E. Slonim, by email addressed to teslonim@mintz.com.
`
`
`/David J. Diamond/
`
`
`
`
`
`
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`PETITIONER’S REPLY IN SUPPORT OF ITS MOTION TO COMPEL REGISTRANT’S
`INTERROGATORY RESPONSES AND DOCUMENT PRODUCTION
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`Page 10
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`

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`Cancellation No. 92067494
`Hewlett Packard Enterprise Development LP v. Arroware Industries, Inc.
`
`Petitioner’s Reply in Support of Its Motion to Compel
`Registrant’s Interrogatory Responses and Document Production
`
`
`
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`EXHIBIT 16
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`Exhibit redacted pursuant to the TTAB Standard Protective Order
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`Cancellation No. 92067494
`Hewlett Packard Enterprise Development LP v. Arroware Industries, Inc.
`
`Petitioner’s Reply in Support of Its Motion to Compel
`Registrant’s Interrogatory Responses and Document Production
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`EXHIBIT 17
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`Exhibit redacted pursuant to the TTAB Standard Protective Order
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`Cancellation No. 92067494
`Hewlett Packard Enterprise Development LP v. Arroware Industries, Inc.
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`Petitioner’s Reply in Support of Its Motion to Compel
`Registrant’s Interrogatory Responses and Document Production
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`EXHIBIT 18
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`Document produced in native format
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`A0001427
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`End USer License Agreement
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`Preamble
`
`This End User License Agreement governs your access to and use of myApollo (and its parent company Arroware
`Industries, inc) websites and mobile applications or any other products, and represent a binding relationship betWecn
`Arrowarc industries, myApoiio and you, the user. Please ensure that you understand and can agree to abide by these terms
`before creating an account and using myApoilo. lfyou do not, or cannot agree to these provisions, please do not use
`myApollo and uninstall the application.
`
`'By using myApollo and its associated websites and applications, you agree to be bound by these terms and to accept all
`legal obligations under them, both in your use of and access to the myApoilo network and towards myApollo and Arrowarc
`Industries as corporate entities, in accordance with all relevant federal, state, provincial and local laws in your area of
`jurisdiction.
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`You may use myApoilo only in compliance with these terms. You may use myApollo only ifyou have the legitimate power
`to form a contract with Arroware Industries and only if you have not been previously suspended or removed from the
`myApoIlo network for a violation ofthese terms. myApollo, both as a network and as a web/mobile application, may
`continue to change over time as we refine, add and possibly remove features, functionality and other aspects of its design.
`
`We may stop, suspend, or modify the myApollo network and applications at any time without prior notice to you. We may
`also remove any content of any kind, especially content that violates these terms, from the myApoiio network at our
`discretion, where possible and necessary to do so.
`
`By using myApollo, you provide us with information and with both the multimedia and text content that you submit to
`myApoilo. You are fully responsible for all ofthe multimedia and text content that you share- and transmit publicly into the
`myApollo network. This may include content shared to, but not limited to, the network feed feature of the application, or
`other publicly accessible areas ofthe application, which may not yet be available for public use.
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`You assume total and sole responsibility for your conduct, the content ofyour tiles, and your communications with others
`while using myApolio.
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`We will review public content for compliance with our rules of conduct that is flagged by users, or that is otherwise reported
`to our moderation team, but you acknowledge that myApoIlo has no obligation to monitor any non-public information,
`content or transfers through or on the myApolio network, or monitor the myApollo network in real time. We are not
`responsible for the nature or legality of files, images, user posts, or any other information that. you may be able to access
`using the myApoilo application or websites, though we shall act to remove any public content that comes to our attention of
`an illegal. criminal. or sexually explicitfobscene nature.
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`Users will be notified via email of any substantial changes to theSe terms, or of new terms that may replace them. By
`continuing to use myApollo, you agree to any changes we may make and to be bound by them. lfyou do not agree, please
`cease your use of myApollo and uninstall its associated applications from your cernputers and devices.
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`As Follows
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`myApollo provides you with features that allow you to share your content with others, publicly or privately. Such content
`may be copied, altered or re-sharcd with third parties inside and outside of the myApollo network. myApollo .has no
`responsibility for or control Dyer how your content is used by third parties outside ofthe myApollo network.
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`The intellectual property rights of other individuals, corporations, and entities may protect some content on the myApollo
`network. Any such content may not be authorized for distribution, and should not be posted or uploaded to the myApollo
`network. You are not to copy, upload, download, or share content unless you have the legal right or lawful permission to do
`so. You, not myApollo or Arroware Industries, will be fully responsible and liable for what you copy, share, upload, view or
`download through myApollo. lliyou believe that your intellectual property rights have been infringed through the tise of
`myApollo, please contact our moderation team via the inaapp reporting feature or by way of report@arrowarcindustriescom
`and we will work with you to resolve the matter to the best ofour technical ability.
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`You must not upload any malicious code, malware, computer virus, bots, scrapers or the like, into the myApollo network, or
`upload any files containing such elements. You must not attempt to damage, disrupt, sabotage or otherwise violate the
`security integrity or any function of the myApollo nehvork or any celnputer system aSsociated with it.
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`You, and not myApollo, are reapensible fer maintaining and protecting all of your content, including but not limited to
`access to your account. myApollo will not be liable for any loss or corruption ofyour content-be it through accidental
`deletion, system failure, thirdsparty sabotage, or any other means- or for any costs or expenses associated with backing up or
`restoring any ofyour content. myApollo is not intended for use by individuals under the age of l3. By agreeing to these
`terms, you are affirming to us that you are over I3 years of age. If we become aware that an individual under the age of 13 is
`using myApollo, we may promptly and without notice suspend or terminate the account in question. You are responsible for
`safeguarding your account password at all times, and you agree not to disclose your password to any third party.
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`You are responsible for any activity using your account, whether or not you authorized that activity or were functionally
`aWare of it. “You should immediately notify myApollo if you detect any unauthorized use of your account. You acknowledge
`that ifyou wish to guarantee the private and secure transmission of data or files through myApollo, it is your responsibility
`to use secure connections, such as a virtual private network, to access myApollo. myApollo makes no representations that
`traffic is subject to our security and encryption standards before it reaches our servers.
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`While using myApollo, note that your account is permanent. All user accounts are connected to and associated with the
`email address provided upon registration. You will not share or transfer your ll) to another person or entity or otherwise
`attempt to secure access to another myApollo acoount from another person er entity, if it is not owned by you. A violation of
`this term may cause myApollo to suspend or terminate your account without notice.
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`You must not create or maintain multiple accounts on myApollo For any purpose, including spam or impersonation. [fyou
`require a new account, you must take steps to de-activate your prior account first.
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`Use ofmyApollo on your mobile device, phone or tablet requires you to download our mobile application. myApollo hereby
`grants you a limited, nonexclusive. nontransl’erabie, revocable licenSe to use the application, solely to access myApollo for
`personal use. You must not reverse engineer, probe, scan, examine or decompile either the code or other elements of the
`myApollo mobile application. If‘ we become aware of any such attempt, we will terminate your access to the myApollo
`network and may engage in legal action. You do not own the application, and myApollo may tenninate your access to it at
`any time if we deem that you have violated these terms Your license to use the appliestiou is automatically revoked if you
`violate these terms in a manner that violates our intellectual property rights, rules of conduct, our in a manner that exposes
`any of our proprietary teehnologies/ trade secrets. or in a manner that