Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA927319
`10/09/2018
`
`ESTTA Tracking number:
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`Filing date:
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
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`Party
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`Correspondence
`Address
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`92067643
`
`Defendant
`HVMN Inc.
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`ZACHARY A ARIA
`BLANK ROME LLP
`ONE LOGAN SQUARE
`PHILADELPHIA, PA 19103
`UNITED STATES
`aria@blankrome.com, saryani-sabet@blankrome.com
`212-569-5347
`
`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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`Motion for Discovery Sanctions
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`Samar Aryani-Sabet
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`saryani-sabet@blankrome.com, pecsenye@blankrome.com
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`/Samar Aryani-Sabet/
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`10/09/2018
`
`Attachments
`
`HVMN Response to Motion for Sanctions.pdf(2682118 bytes )
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`

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`
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
` BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`___________________________________
`HUMAN POWER OF N COMPANY,
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`:
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`:
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`Petitioner,
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`: Registration No.: 5,361,363
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`:
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`v.
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`: Cancellation No.: 92067643
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`:
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`HVMN INC.,
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`:
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`Registrant.
`___________________________________:
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`
`Hon. Commissioner for Trademarks
`P.O. Box 1451
`Alexandria, Virginia 22313-1451
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`Attn.: Trademark Trial and Appeal Board
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`
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`REGISTRANT’S OPPOSITION AND RESPONSE TO
`PETITIONER’S MOTION FOR SANCTIONS
`Registrant HVMN Inc. (“HVMN”), by and through its
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`
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`undersigned counsel, hereby responds to Petitioner Human Power
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`of N Company’s (“Petitioner”) motion for sanctions. Petitioner’s
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`motion is entirely meritless and fails as a matter of law. As
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`such, HVMN respectfully requests that Petitioner’s motion be
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`denied in its entirety.
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`I.
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`FACTUAL BACKGROUND
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`On December 29, 2017, Petitioner filed a Petition to Cancel
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`HVMN’s U.S. Trademark Registration No. 5,361,363 for the HVMN
`mark before the Trademark Trial and Appeal Board (“T.T.A.B.”).
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`See Petition for Cancellation, Dkt. No. 1. In that Petition,
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`Petitioner challenged HVMN’s rights to the HVMN mark, alleging
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`priority and likelihood of confusion with its U.S. Trademark
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`Registrations for the word mark HUMANN and design mark
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`
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`(the “HUMANN mark”). See id. Petitioner alleged in its Petition
`that: (i) “[Petitioner] began using the HUMANN mark in
`interstate commerce over a year before [HVMN’s] first use in
`interstate commerce;” and (ii) the marks are similar in
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`appearance, connotation, commercial appearance, the goods, and
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`channels of trade to cause confusion in the marketplace. Id.
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`On June 19, 2018, the parties executed the T.T.A.B.’s
`Standard Protective Order (“Protective Order”) governing the
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`Board proceeding. A true and correct copy of the executed
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`Protective Order is attached hereto as Exhibit A.
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`On August 28, 2018, HVMN, by and through its attorneys,
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`took a 30(b)(6) deposition, with Kelly Harrelson and Bril Flint,
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`both as representatives testifying on behalf of Petitioner. At
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`the deposition, Petitioner indicated for the first time that it
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`found HVMN’s mark to be infringing and that it was considering
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`an infringement lawsuit against HVMN.
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`Upon learning of this threat to its business, HVMN filed a
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`declaratory judgment action on September 10, 2018, in the U.S.
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`District Court for the Northern District of California seeking a
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`determination that it has not violated Petitioner’s intellectual
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`property rights. The case is captioned as HVMN Inc. v. Human
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`Power of N Company, Civ. Action No. 3:18-cv-05542 (N.D. Cal.,
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`filed Sept. 10, 2018). See a true and correct copy of the
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`complaint filed in Civ. Action No. 3:18-cv-05542 attached hereto
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`as Exhibit B (the “California Complaint”). On that same day,
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`HVMN filed a Motion to Suspend for Civil Action with the Board.
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`See HVMN’s Motion to Suspend for Civil Action, Dkt. No. 7
`(“Motion to Suspend”).
`Petitioner’s motion for sanctions centers on two specific
`statements referenced in HVMN’s California Complaint. The first
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`statement came from the testimony of Mr. Flint. When asked by
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`HVMN’s counsel “[i]s there [a] reason why you haven’t sued
`HVMN,” Mr. Flint responded “[t]hat possibility remains open.”
`See California Complaint, p. 6, ¶ 20 (the “Flint Deposition
`Excerpt”). The second excerpt came from Ms. Harrelson’s
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`testimony, in which she indicated that Petitioner is not using
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`the HUMANN mark in connection with the following registered
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`goods: (i) bars; (ii) gummies; (iii) chews; (iv) liquid
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`beverages; (v) meats and processed foods in the nature of
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`preserved, dried and cooked fruits and vegetables; and (vi)
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`jellies or jams. See id., p. 5, ¶ 16 (the “Harrelson Deposition
`Excerpt”) (collectively, the “Deposition Excerpts”).
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`In an attempt to strong-arm HVMN into withdrawing its
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`California Complaint, on September 21, 2018, Petitioner filed an
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`action for trademark infringement and related unfair competition
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`claims in the U.S. District Court for the Western District of
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`Texas, fully aware of the filing of HVMN’s California Complaint.
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`The case is captioned as Human Power of N Company v. HVMN, Inc.,
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`Civ. Action No. 1:18-cv-00807-LY (W.D. Tex., filed Sept. 21,
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`2018). A true and correct copy of the complaint filed in Civ.
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`Action No. 1:18-cv-00807-LY is attached hereto as Exhibit C
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`(“Texas Complaint”). On that same day, Petitioner filed a
`response to HVMN’s Motion to Suspend, agreeing to such a
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`suspension based on the filing of its Texas Complaint. See
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`Petitioner’s Response to Motion to Suspend Proceedings, Dkt. No.
`9 (“Petitioner’s Response”). Most notably, on that same day, in
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`a continued attempt to bully HVMN, Petitioner filed this motion
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`for sanctions, falsely accusing HVMN and its attorneys of
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`violating the Standard Protective Order and acting unethically.
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`On October 7, 2018, Petitioner’s counsel transmitted its
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`designations of the deposition transcripts of Mr. Flint and Ms.
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`Harrelson to HVMN’s counsel. Petitioner’s counsel did not
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`designate any of the Harrelson Deposition Excerpt as
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`confidential. As to Mr. Flint’s deposition transcript,
`Petitioner’s counsel improperly marked the Flint Deposition
`Excerpt as “confidential” in an attempt to bolster its case
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`before the Board.
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`HVMN files this opposition in response to Petitioner’s
`motion and respectfully requests that Petitioner’s motion be
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`denied in its entirety.
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`II. ARGUMENT
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`A.
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`Petitioner’s Motion for Sanctions is Moot.
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`First and foremost, the Board should refrain from
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`considering Petitioner’s motion for sanctions as this request is
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`entirely moot. After commencing the non-infringement declaratory
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`judgment action in the Northern District of California, on
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`September 10, 2018, HVMN filed its Motion to Suspend for Civil
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`Action. See Motion to Suspend, Dkt. No. 7. On September 21,
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`2018, Petitioner filed an infringement lawsuit in the Western
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`District of Texas. See Texas Complaint, Exh. C. On that same
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`day, Petitioner filed a response to HVMN’s Motion to Suspend for
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`Civil Action, agreeing to the suspension of the cancellation
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`proceeding. See Petitioner’s Response, Dkt. No. 9. As both
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`parties have agreed to suspend the cancellation proceeding, this
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`leaves the resolution of this case in the hands of a federal
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`court – either the Northern District of California or the
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`Western District of Texas. In either scenario, this case will be
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`resolved (absent any unforeseen circumstances) in a district
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`court, outside the Board forum, and the resolution of that case
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`will be dispositive of the issues in the Board proceeding.
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`Accordingly, the Board no longer has jurisdiction over this case
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`and Petitioner’s motion for sanctions is moot.
`B.
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`The Board Cannot Determine the Enforceability of the
`Protective Order as the Deposition Excerpts were Not
`Disclosed in a Board Proceeding.
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`Furthermore, the Protective Order clearly provides that the
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`Board cannot determine its enforceability outside the context of
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`a Board proceeding. It is undisputed that the Protective Order
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`governs “information produced in this Board proceeding and
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`designated pursuant to this Order, including all designated
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`discovery depositions . . .” P.O., Exh. A, at p. 1. The plain
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`language of the Protective Order explicitly limits its scope,
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`stating: “[n]otwithstanding, any determination of whether the
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`Order establishes contractual rights or is enforceable outside
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`of this Board proceeding is for the appropriate judicial forum
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`to decide should such matter come before it.” Id. (emphasis
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`added). Here, HVMN did not use the deposition excerpts in a
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`Board proceeding (ironically, it was Petitioner who did so in
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`its motion). The only “judicial forum” in which the Deposition
`Excerpts were referenced was in federal court – specifically,
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`the Northern District of California. As such, per the plain
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`language of the Protective Order, because HVMN’s use of the
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`Deposition Excerpts occurred in a different judicial forum, it
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`would be up to that forum - not the Board – to determine the
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`enforceability of the Protective Order.
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`HVMN’s position is further supported by the fact that its
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`use of the Deposition Excerpts is undoubtedly permissible before
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`the federal court. Under Federal Rule of Civil Procedure
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`32(a)(3): “[a]n adverse party may use for any purpose the
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`deposition of a party or anyone who, when deposed, was the
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`party’s officer, director, managing agent, or designee under
`Rule 30(b)(6) or 31(a)(4)” (emphasis added). This standard is
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`clearly met in this case: (1) Mr. Flint and Ms. Harrleson served
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`as representatives of Petitioner
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`during the discovery
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`deposition; and (2) Petitioner is an adverse party to HVMN.
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`Accordingly, under Rule 32(a)(3), HVMN was permitted to “use for
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`any purpose” the Deposition Excerpts in its California
`Complaint. Given these reasons, Petitioner’s motion should be
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`denied in its entirety.
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`C.
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`HVMN Was Permitted to Reference the Deposition
`Excerpts in its California Complaint because the
`Deposition Excerpts are Not Confidential Information.
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`Notwithstanding the foregoing, HVMN did not violate the
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`Protective Order because the Deposition Excerpts referenced in
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`the California Complaint do not – and, indeed, cannot -
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`constitute confidential information. As the Trademark Trial and
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`Appeal Board Manual of Procedure (“T.B.M.P.”) provides: “[t]he
`Board’s standard protective order does not automatically protect
`all information.” T.B.M.P. § 412.01. It specifically governs
`“information produced in this Board proceeding and designated
`pursuant to this Order.” P.O., Exh. A, at p. 1. Put simply, the
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`purpose of the Protective Order is solely to safeguard access to
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`and use of designated confidential information produced in a
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`Board proceeding. The Protective Order defines the categories of
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`confidential information by providing the following examples:
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`(1) sensitive technical information; (2) sensitive business
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`information;
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`(3)
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`competitive
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`technical
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`information;
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`(4) competitive business information; (5) personal health or
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`medical information; (6) an individual’s credit, banking or
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`other financial information; or (7) other commercially sensitive
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`information. See id. at p. 2. Relating to depositions, the
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`Protective Order provides that: “[d]uring discussion of any non-
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`documentary protected information [in a deposition], the
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`interested party shall make oral note on the record of the
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`protected nature of the information.” Id. at p. 5 (emphasis
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`added). It is the duty of the attorney or interested party to
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`make such oral designation.
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`The Protective Order sets out a standard of reasonableness
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`that parties must adhere to in designating information as
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`confidential. See id. at p. 5. The T.B.M.P. warns that: “parties
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`should avoid excessive marking of various information as
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`confidential and limit such designations to only those
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`particular . . . deposition transcript pages that are truly
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`confidential.” Id. § 412.01(c). Even if a party were to
`designate all or parts of the deposition as protected, “[t]he
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`Board may treat as not confidential that material which cannot
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`reasonably be considered confidential, notwithstanding a
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`designation as such by a part.” T.B.M.P. § 412.01(a); see also
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`Couch/Braunsdorf Affinity, Inc. v. 12 Interactive, LLC, 110
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`U.S.P.Q.2d 1458, 1461 (T.T.A.B. 2014) (Board would not be bound
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`by parties’ confidential designations, treating only evidence
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`and testimony that was clearly of private nature or commercially
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`sensitive as confidential); Swiss Watch Int’l Inc. v. Federation
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`of the Swiss Watch Inds., 101 U.S.P.Q.2d 1731, 1736 n.12, 1739
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`(T.T.A.B. 2012) (Board ordered party that submitted entire
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`deposition testimony of witness under seal to resubmit copies of
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`evidence in which only truly confidential material was
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`redacted); Edwards Lifesciences Corp. v. VigiLanz Corp., 94
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`U.S.P.Q.2d 1399, 1402-03 (T.T.A.B. 2010) (finding improper
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`designation of discovery deposition testimony regarding how
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`applicant’s mark was selected, products on which applicant
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`intended to use its mark, and to whom applicant makes its
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`initial sales contacts); Sports Auth’y Michigan Inc. v. PC
`Auth’y Inc., 63 U.S.P.Q.2d 1782, 1787 (T.T.A.B. 2001) (finding
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`that deposition transcripts were improperly labelled as
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`confidential when it is “clear from reading the transcripts”
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`that only portions thereof could qualify as confidential).
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`When a designation is challenged, it is the burden of the
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`designating party to establish good cause for why the cited
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`deposition statements should be considered confidential.
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`T.B.M.P. § 412.01(a). “To successfully carry the burden of
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`establishing good cause, the producing party must demonstrate a
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`particular need for protection and that a clearly defined and
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`serious injury will result otherwise . . . . [T]he party must
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`provide particular and specific demonstrations of fact, as
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`distinguished from stereotyped and conclusory statements.” Id.
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`Here, Petitioner conceded that the Deposition Excerpts are
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`not confidential during the actual depositions of Mr. Flint and
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`Ms. Harrelson. Specifically, neither Petitioner nor its attorney
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`ever made an oral note on the record as to the alleged protected
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`nature of the Deposition Excerpts. See id. at p. 5 (“[d]uring
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`discussion of any non-documentary protected information [in a
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`deposition], the interested party shall make oral note on the
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`record of the protected nature of the information.”). Neither
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`Petitioner nor its attorney made such a notation simply because
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`the Deposition Excerpts cannot reasonably be considered
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`confidential.
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`As to the Harrelson Deposition Excerpt, this conclusion is
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`bolstered by the fact that, following the 30-day review period,
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`Petitioner’s counsel did not designate this excerpt as
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`confidential information. Accordingly, it would never have been
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`subject to the safeguards set out in the Protective Order. It
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`follows logically then that Petitioner was not harmed by HVMN’s
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`use of the Deposition Excerpt in its California Complaint. See
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`T.B.M.P. § 412.01(a) (providing that the “producing party must
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`demonstrate a particular need for protection and that a clearly
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`defined and serious injury will result otherwise”). Accordingly,
`Petitioner’s objection to HVMN’s use of Ms. Harrelson’s
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`Deposition Excerpt is thus moot.
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`Turning to the Flint Deposition Excerpt, Petitioner’s
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`counsel has improperly designated it as confidential. The only
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`portion of Mr. Flint’s deposition that was referenced in HVMN’s
`California Complaint concerned Petitioner’s newly-admitted
`confession that it considered HVMN’s mark to be infringing and
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`that the possibility of a trademark infringement lawsuit
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`“remain[ed] open.” See California Complaint, p. 6, ¶ 20.
`Contrary to Petitioner’s position, a threat does not suddenly
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`become confidential information merely because it occurred in
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`the context of a deposition or because Petitioner improperly
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`designates it as confidential information. See T.B.M.P.
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`§ 412.01(a). Rather, this threat provided HVMN with standing (a
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`“substantial controversy”) and a lawful basis by which to pursue
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`a declaratory judgment action.1 See Chesebrough-Pond's, Inc. v.
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`1 Furthermore, it was the prerogative of HVMN’s attorneys to inform HVMN of
`Petitioner’s threatened litigation. As an advocate and advisor, it is the
`duty of HVMN’s attorneys to act in the best legal interest of HVMN. A
`threatened litigation that serves to harm or destroy HVMN’s brand, business,
`and reputation undoubtedly falls within this duty. See AMERICAN BAR ASSOCIATION
`MODEL RULES OF PROFESSIONAL CONDUCT, Rule 1.3 Cmmt. 1 (“A lawyer should pursue a
`matter on behalf of a client . . . and take whatever lawful and ethical
`measures are required to vindicate a client's cause or endeavor. A lawyer
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`Faberge, Inc., 666 F.2d 393, 396 (9th Cir. 1982) (holding that
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`before and after the Supreme Court case MedImmune, Inc. v.
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`Genentech, Inc., trademark disputes are justiciable under the
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`Declaratory Judgment Act when the plaintiff has a real and
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`reasonable apprehension that he will be subject to liability.).2
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`It was HVMN’s lawful prerogative to file a declaratory judgment
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`action seeking judicial clarification that it has not infringed
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`Petitioner’s intellectual property rights. It is HVMN’s
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`business, brand and reputation that is at stake in such a
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`litigation – not Petitioner’s. Significantly, HVMN’s fears were
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`confirmed when Petitioner subsequently filed its infringement
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`action against HVMN in the Western District of Texas.
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`Moreover, the Flint Deposition Excerpt simply cannot be
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`considered confidential information under the reasonableness
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`standard. A simple review of the Protective Order confirms that
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`a threat of infringement litigation does not fall within any of
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`the categories (or similar categories) of confidential
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`information. See P.O., Exh. A, at p. 2. Petitioner’s logic - if
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`must also act with commitment and dedication to the interests of the client
`and with zeal in advocacy upon the client's behalf.”); see also id., Rule 2.1
`Cmmt. 5 (“[A] lawyer may initiate advice to a client when doing so appears to
`be in the client's interest.”)
`
` A Ninth Circuit case is cited here as this is the jurisdiction in which
`HVMN’s declaratory judgment action was filed. The standard, however, follows
`the standard provided in the Supreme Court case MedImmune, Inc. v. Genentech,
`Inc., 549 U.S. 118 (2007).
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` 2
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`enforced - would lead to the harmful effect of undermining an
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`accused infringer’s lawful right to defend itself or to seek
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`clarity vis-à-vis its legal rights through a declaratory
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`judgment action.
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`Finally, Petitioner has failed to establish good cause for
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`why the Flint Deposition Excerpt should be considered
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`confidential. See T.B.M.P. § 412.01(a). Petitioner has failed to
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`“demonstrate a particular need for protection” and that a
`“clearly defined and serious injury will result otherwise.” Id.
`Petitioner’s “conclusory statement” that HVMN allegedly violated
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`the Protective Order to forum shop fails to meet its burden of
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`“provid[ing] particular and specific demonstrations of fact.”
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`Id. First and foremost, as explained supra, Petitioner had a
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`lawful basis by which to file its California Complaint.3 Second,
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`contrary to Petitioner’s allegation, HVMN was not obligated to
`“wait[] to obtain the transcripts” to file its California Action
`– it could have filed the same action without the physical
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`transcripts. Third, it is Petitioner who attempted to forum shop
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`by filing a second duplicative action in the Western District of
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`3 Furthermore, Petitioner’s allegation that HVMN engaged in forum shopping by
`filing this declaratory judgment action in the Northern District of
`California is meritless. HVMN filed in the Northern District of California
`because it is domiciled in that judicial district and it is the logical place
`for the action to be conducted. Accordingly, such bold allegations by the
`Petitioner should be entirely dismissed.
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`Texas – not HVMN. Finally, notwithstanding the foregoing, the
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`case and the substantive issues will be resolved by a federal
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`court in either forum. As such, Petitioner has failed to
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`establish good cause for why the Flint Deposition Excerpt should
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`be considered confidential.
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`Accordingly, Petitioner’s arguments fail as a matter of law
`and Petitioner’s motion should be dismissed in its entirety.
`D.
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`The Requested Sanctions are Extreme and Unreasonable.
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`Putting aside the fact that neither HVMN nor its attorneys’
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`conduct would warrant any sanctions whatsoever, the sanctions
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`proposed
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`by
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`Petitioner’s
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`unreasonable.
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`First
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`and
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`attorneys
`foremost,
`
`and
`egregious
`are
`Petitioner’s
`counsel
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`improperly suggests that the Board will impose monetary
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`sanctions. See Petitioner’s Motion for Sanctions, p. 4 at ¶ 10.
`As Petitioner’s counsel is no doubt aware, the Board is not
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`empowered to impose monetary sanctions. T.B.M.P. § 527.01.
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`As to Petitioner’s request that the Board strike HVMN’s
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`pleadings (the Answer), such a result would essentially amount
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`to a default judgment in favor of Petitioner. As the T.B.M.P.
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`provides: “[d]fault judgment is a harsh remedy, but may be
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`justified where no less drastic remedy would be effective and
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`there is a strong showing of willful evasion.” Id. § 527.01
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`(emphasis added); see Benedict v. Superbakery Inc., 665 F.3d
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`1263, 101 U.S.P.Q.2d 1089, 1093 (Fed. Cir. 2011) (entry of
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`judgment warranted in view of repeated failures to comply with
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`reasonable orders of the Board and no lesser sanction would be
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`effective). Petitioner’s request can only be categorized as
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`extreme and entirely inappropriate.
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`Furthermore, Petitioner’s request to bar HVMN from relying
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`on the discovery depositions in any proceeding before this Board
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`is equally as egregious given that the Deposition Excerpts
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`simply do not – and cannot - reasonably be construed as
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`confidential information.
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`HVMN further objects to Petitioner’s request that HVMN’s
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`attorneys be referred to the Office of Enrollment and
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`Discipline. Petitioner’s attorney has unprofessionally used this
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`threat to strong-arm HVMN into backing down from its proper
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`defense of this case. Petitioner’s attorney has repeated such
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`unprofessional threats in the Texas proceeding as well as the
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`California proceeding to bias the Court and the Board to view
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`HVMN and its attorneys in a negative light. Such prejudicial
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`statements are unprofessional and frankly, unethical. In short,
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`HVMN’s attorneys did not act unethically and justifiably took
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`appropriate action in filing the declaratory judgment action to
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`protect the best interests of its client.
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`As such, HVMN respectfully requests Petitioner’s motion be
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`denied in its entirety as it based on meritless grounds.
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`III. CONCLUSION
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`Given the foregoing reasons, HVMN respectfully requests
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`that Petitioner’s motion for sanctions be dismissed in its
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`entirety.
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`Dated: October 9, 2018
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`BLANK ROME LLP
`One Logan Square
`Philadelphia, PA 19103
`(215) 569-5347 (t)
`(215) 832-5347 (f)
`<aria@blankrome.com>
`<pecsenye@blankrome.com>
`<saryani-sabet@blankrome.com>
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`Respectfully submitted,
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`HVMN INC.
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`By: /Zachary Aria/
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`Zachary A. Aria
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`Timothy D. Pecsenye
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`Samar Aryani-Sabet
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`Its Attorneys
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`CERTIFICATE OF ELECTRONIC FILING
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`I hereby certify that this correspondence is addressed to the Trademark Trial and
`Appeal Board, Hon. Commissioner for Trademarks, P.O. Box 1451, Alexandria, Virginia
`22313-1451, and is being deposited via the Electronic System for Trademark Trials and
`Appeals (ESTTA) on October 9, 2018.
`
` /Samar Aryani-Sabet/
` Samar Aryani-Sabet
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`144119.00101/113103665v.1
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`CERTIFICATE OF SERVICE
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`I, Samar Aryani-Sabet, hereby certify that I have on this
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`9th day of October, 2018, served via electronic mail the
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`foregoing REGISTRANT’S OPPOSITION AND RESPONSE TO PETITIONER’S
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`MOTION FOR SANCTIONS to the following:
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`STEVEN D SMIT
`GRAVES DOUGHERTY HEARON & MOODY PC
`401 CONGRESS AVENUE SUITE 2200
`AUSTIN, TX 78701
`<trademarks@gdhm.com>
`<ssmit@gdhm.com>
`Attorney for Petitioner
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` /Samar Aryani-Sabet/______
`Samar Aryani-Sabet
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`144119.00101/113103665v.1
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`EXHIBIT A
`EXHIBIT A
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`IN THE UNITED STATES PATENT AND TRADE REGISTERED TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`§ Cancellation No. 92067643
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`Registration No. 5361363
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`Mark: HVMN
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`§ §
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`§ §
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`§
`§ Date registered: December 19, 2017
`§
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`Human Power of N Company
`Petitioner,
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`v.
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`HVMN, Inc.
`Respondent.
`
`STANDARD PROTECTIVE ORDER
`
`Pursuant to Trademark Rule 2.116(g), this standard protective order (“Order”) is
`automatically imposed on this Board proceeding. It is not necessary for the parties and/or their
`attorneys to sign copies of the Order for it to take effect or for the parties to be bound by its
`terms during the course of the proceeding. However, it may be desirable to obtain such
`signatures to assure the parties that they have created a contract which will survive this Board
`proceeding and that they may have a remedy for breach of that contract which occurs after the
`conclusion of this Board case. Notwithstanding, any determination of whether the Order
`establishes contractual rights or is enforceable outside of this Board proceeding is for the
`appropriate judicial forum to decide should such matter come before it.
`
`Information disclosed by any party or non-party witness during this proceeding may be
`considered ( 1) Confidential or (2) Confidential — For Attorneys’ Eyes Only (trade secret/
`commercially sensitive) by a party or witness. To preserve the confidentiality of the information
`so disclosed, the parties are hereby bound by the terms of this Order, in its standard form or as
`modified by agreement approved by the Board, and by any additional provisions to which they
`may have agreed and approved by the Board. As used in this Order, the term "information"
`covers documentary material, electronically stored information (“ESI”), testimony,[l] and any
`other information provided during the course of this Board proceeding.
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`This Order shall govern any information produced in this Board proceeding and designated
`pursuant to this Order, including all designated discovery depositions, all designated testimony
`depositions and declarations and affidavits, all designated deposition exhibits and testimony
`exhibits, interrogatory answers, admissions, documents and other discovery and testimony
`materials, whether produced informally, as part of mandatory disclosures, or in response to
`interrogatories, requests for admissions, requests for production of documents or other methods
`of discovery.
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`This Order shall also govern any designated information produced or provided in this Board
`proceeding pursuant to required disclosures under any applicable federal procedural rule or
`Board rule and any supplementary disclosures thereto.
`
`

`

`This Order shall apply to the parties and to any nonparty from whom discovery or testimony
`may be sought in connection with this proceeding and who desires the protection of this Order.
`
`TERMS OF ORDER
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`1) Classes of Protected Information.
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`The Rules of Practice in Trademark Cases provide that all inter partes proceeding files, as
`well as the involved registration and application files, are open to public inspection. The terms of
`this Order are not to be used to undermine public access to such files. When appropriate,
`however, a party or witness, on its own or through its attorney, may seek to protect the
`confidentiality of information by employing one ofthe following designations.
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`Confidential -Material to be shielded by the Board from public access.
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`Confidential — Attorneys’ Eyes Only (Trade Secret/Commercially Sensitive) —Material to be
`shielded by the Board from public access, restricted from any access by the parties, and available
`for review by outside counsel for the parties and, subject to the provisions of paragraphs 4 and 5,
`by independent experts or consultants for the parties. Such material may include the following
`types of infomation: (l) sensitive technical information, including current research,
`development and manufacturing information; (2) sensitive business information, including
`highly sensitive financial or marketing information; (3) competitive technical information,
`including technical analyses or comparisons of competitor’s products or services; (4) competitive
`business information, including non—public financial and marketing analyses, media scheduling,
`comparisons of competitor’s products or services, and strategic product/service expansion plans;
`(5) personal health or medical information; (6) an individual’s personal credit, banking or other
`financial information; or (7) any other commercially sensitive information the disclosure of
`which to non-qualified persons subject to this Order the producing party reasonably and in good
`faith believes would likely cause harm.
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`2) Information Not to Be Designated as Protected.
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`Information may not be designated as subject to any form of protection if it (a) is, or becomes,
`public knowledge, as shown by publicly available writings, other than through violation of the
`terms of this Order; (b) is acquired by a non—designating party or non-party witness from a third
`party lawfully possessing such information and having no obligation to the owner of the
`information; (0) was lawfully possessed by a non-designating party or non-party witness prior to
`the opening of discovery in this proceeding, and for which there is written evidence of the lawful
`possession; (d) is disclosed by a non-designating party or non-party witness legally compelled to
`disclose the information; or (e) is disclosed by a non—designating party with the approval of the
`designating party.
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`3) Access to Protected Infomation.
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`The provisions of this Order regarding access to protected information are subject to
`modification by written agreement of the parties or their attorneys and approved by the Board.
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`

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`Administrative Trademark Judges, Board attorneys, and other employees of the Board are
`bound to honor the parties' designations of information as protected, except as otherwise required
`by law, but are not required to sign forms acknowledging the terms and existence of this Order.
`Court reporters, stenographers, video technicians or others who may be employed by the parties
`or their attorneys to perform services incidental to this proceeding will be bound only to the
`extent that the parties or their attorneys make it a condition of employment or obtain agreements
`from such individuals, in accordance with the provisions of paragraph 4.
`-Parties are defined as including individuals, officers of corporations, partners of partnerships,
`members of limited liability companies/corporations, and management employees of any type of
`business organization.
`-Attomeys for parties are defined as including in-house counsel and outside counsel, including
`support staff operating under counsel's direction, such as paralegals or legal assistants,
`secretaries, and any other employees or independent contractors operating under counsel's
`instruction.
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`°Independent experts or consultants include individuals retained by a party for purposes related
`to prosecution or defense of the proceeding but who are not current or former employees,
`officers, members, directors, or partners of any party, affiliates of any party, or the attorneys of
`any party or its affiliates, or competitors to any party, or employees or consultants of such
`competitors with respec