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`ESTTA1348344
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`Filing date:
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`03/25/2024
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
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`92081334
`
`Party
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`Correspondence
`address
`
`Plaintiff
`Edge Games, Inc.
`
`TIM LANGDELL
`EDGE GAMES INC
`35 NORTH LAKE AVENUE
`SUITE 710
`PASADENA, CA 91101
`UNITED STATES
`Primary email: edgegames@gmail.com
`626-824-0097
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`Submission
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`Filer's name
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`Filer's email
`
`Signature
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`Date
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`Other Motions/Submissions
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`Tim Langdell
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`edgegames@gmail.com
`
`/Tim Langdell/
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`03/25/2024
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`Attachments
`
`Motion to Deem the RFAs Admitted.pdf(1692553 bytes )
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`
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Cancellation No. 92081334
`
`
`
`In the Matter of Registration No. 5,766,386
`For the Trademark BLEEDING EDGE
`Issued June 4, 2019
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`
`)
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`EDGE GAMES, INC.
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`Petitioner,
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`v.
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`MICROSOFT CORPORATION
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`Registrant
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`
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`__________________________________________)
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`Trademark Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1451
`Alexandria, Virginia 22313-1451
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`
`
`MOTION THAT PETITIONER’S REQUESTS FOR
`ADMISSION BE DEEMED ADMITTED FOR LACK
`OF TIMELY RESPONSE
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`
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`EDGE Games, Inc. (“Petitioner”) hereby moves that Microsoft Corporation (“Respondent”)
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`be deemed to have admitted the Requests for Admission served on it on January 23, 2024 on the
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`grounds that no timely response was received from Respondent answering or objecting to the
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`admission requests.
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`FACTUAL BACKGROUND
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`Petitioner served on Respondent its First Set of Requests for Admission (“RFAs”; see Exhibit
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`A hereto) on January 23, 2024. Respondent’s responses to these RFAs were due in no more than
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`1
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`30-days by February 22, 2024. However, on February 20, 2024 Respondent requested an
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`extension of time in which to respond to March 22, 2024 (see Exhibit B). Petitioner granted this
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`requested extension to Respondent. However, no response was received by Petitioner either by
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`the deadline of March 22, 2024, or at all.
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`LEGAL ARGUMENT
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`FRCP 36(a)(3) provides that “[a] matter is admitted” unless the responding party serves a
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`written answer or objection addressed to the matter and signed by the party or its attorney within
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`30-days of service of the RFAs on the party. It is thus a simple undeniable fact that all of the
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`requests for admission in Petitioner’s January 23, 2024, RFA are now deemed to have been
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`automatically admitted by Respondent.
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`DISCUSSION
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`As can be seen in Exhibit B hereto, Respondent asked for an extension of time to respond
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`until March 22, 2024. It is thus undeniable that Respondent’s time to respond to the RFAs
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`expired without their responding in a timely manner. Even if Respondent argues that it meant to
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`ask for a 30-day extension of time from February 22, 2024, or that Petitioner granted it a 30-day
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`extension from February 22, 2024, that would still have made Respondent’s responses to
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`Petitioner’s RFAs due by March 23, 2024. In either case, Respondent clearly did not respond in a
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`time manner and thus per FRC_P 36(a)(3) Respondent is seemed to have automatically admitted
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`the requests for admission in question.
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`As can be seen from the requests for admission served on Respondent (Exhibit A), these
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`requests, now considered admitted by Respondent, include among several others:
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`
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`2
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`
`
`REQUEST FOR ADMISSION NO. 21:
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`
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`Admit that the total sales of the game titled BLEEDING EDGE is barely token and
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`insufficient to have built up any goodwill for Respondent in Respondent’s Mark.
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`REQUEST FOR ADMISSION NO. 24:
`
`
`
`Admit that Your game titled BLEEDING EDGE that forms the basis of your claim to
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`Respondent’s Mark has been described as “a flop.”
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`REQUEST FOR ADMISSION NO. 25:
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`
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`Admit that your game BLEEDING EDGE essentially stopped having any meaningful
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`sales in the United States in or about May 2021.
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`REQUEST FOR ADMISSION NO. 26:
`
`
`
`Admit that Ninja Theory Limited’s game BLEEDING EDGE having “flopped” thus
`
`tarnished the EDGE brand that Petitioner had built up over the past 40 years in US commerce.
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`REQUEST FOR ADMISSION NO. 31:
`
`
`
`Admit that Petitioner’s mark EDGE having been used in US commerce consistently in
`
`respect to computer games for around 40 years has likely attained fame as defined in the Lanham
`
`Act.
`
`REQUEST FOR ADMISSION NO. 32:
`
`
`
`Admit that when You transferred the ownership of Respondent’s Mark from Ninja
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`Theory Limited to You you failed to execute a document that transferred any goodwill associated
`
`with Respondent’s Mark from Ninja Theory Limited to You.
`
`REQUEST FOR ADMISSION NO. 36:
`
`
`
`Admit that the news page of Your website bleedingedge.com for Your game BLEEDING
`
`EDGE has no update or news on it dated more recently than July 30, 2020.
`
`
`
`3
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`
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`All of these requests for admission were automatically deemed admitted when Respondent
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`failed to respond within the original 30-days, or the extended period of the additional 30-days
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`agreed between the parties. Even just cursory review of only the small subset of admissions
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`above reveals that these admissions mean Respondent has no case, and no prospect of prevailing
`
`in these proceedings given what it has been deemed to have admitted.
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`CONCLUSION AND PRAYER FOR RELIEF
`
`Respondent having admitted all the requests for admission and thus having admitted, in real
`
`terms, that it has no case and no prospect of prevailing in these proceedings, Petitioner asks that
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`the Board (a) rule that Respondent is deemed to have automatically admitted all of Petitioner’s
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`requests for admission, and (b) that having so admitted the requests and thus having no case or
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`prospect of prevailing, that judgement in this matter be granted in favor of Petitioner with
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`Respondent’s mark BLEEDING EDGE being removed from the U.S. Trademarks Register
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`forthwith.
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`Dated March 25, 2024
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`Respectfully submitted,
`
`
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`
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`
`
`By: ____________________
`Dr. Tim Langdell, CEO
`Petitioner in pro se.
`
`EDGE Games, Inc.
`530 South Lake Avenue 171
`Pasadena, CA 91101
`edgegames@gmail.com
`626 824 0097
`
`(certificate of service on separate page)
`
`4
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`
`
`
`
`CERTIFICATE OF SERVICE
`
`I hereby certify that pursuant to CFR 2.101(b), on March 25. 2024 a true and correct copy of the
`foregoing MOTION THAT PETITIONER’S REQUESTS FOR ADMISSION BE DEEMED
`ADMITTED FOR LACK OF TIMELY RESPONSE
`Was served via email on Respondent’s counsel:
`
`trademarkslv@dickinsonwright.com, jkrieger@dickinsonwright.com,
`cvillanueva@dickinsonwright.com
`
`/Tim Langdell/____________
`Dr. Tim Langdell
`
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`5
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`
`
`EXHIBIT A
`EXHIBIT A
`
`
`6
`
`
`
`
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`EDGE GAMES, INC.
`
`
`Cancellation No. 92081334
`
`
`
`
`Registration No. 5,766,386
`
`
`
`
`Mark: BLEEDING EDGE
`
`
`MICROSOFT CORPORATION,
`
`
`
`
`
`
`
`
`
`
`
`
`
`
`v.
`
`
`
`
`
`
`
`Petitioner,
`
`Respondent.
`
`
`
`
`
`PETITIONER’S FIRST SET OF REQUESTS FOR ADMISSION
`
`Pursuant to Rule 36 of the Federal Rules of Civil Procedure and Rule 2.120 of the
`
`Trademark Rules of Practice, Petitioner EDGE Games, Inc. (“Petitioner”), in pro se, hereby
`
`requests that within thirty (30) days from the date of service hereof, Microsoft Corporation
`
`(“Respondent”) admit in writing the truth of the following matters. For each request, if an answer
`
`or objection is not timely submitted within thirty (30) days, then the matter shall be deemed to be
`
`admitted, as provided under Rule 36 of the Federal Rules of Civil Procedure.
`
`INSTRUCTIONS
`
`These requests seek responses and information as of the date on which Respondent
`
`responds and shall be deemed continuing, requiring Respondent to serve upon Petitioner such
`
`further responses within a reasonable time after Respondent may have acquired additional
`
`documents, knowledge, or information.
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`For each and any request that Respondent denies or objects to, in whole or in part,
`
`Respondent shall state specifically the reason for such denial or objection.
`
`
`
`
`DEFINITIONS
`
`As used herein, the following definitions apply:
`
`1
`
`
`
`1.
`
`“Respondent”, “You”, or “Your” means Microsoft Corporation, and its
`
`predecessors, successors, assigns, parents, subsidiaries and divisions, affiliates, partners, and all
`
`past and present officers, directors, employees, partners, corporate parents, subsidiaries,
`
`affiliates, agents, and representatives.
`
`2.
`
`“Respondent’s Mark” means the mark BLEEDING EDGE subject of these
`
`proceedings.
`
`3.
`
`“Petitioner’s Marks” means the EDGE and EDGE-formative marks as described by
`
`Petitioner in paragraphs 2, 4 and 24 of the Amended Petition, as follows: EDGE PC, EDGE
`
`GAMES, EDGE GAMING PC, EDGE, THE EDGE, MAGIC EDGE, CUTTING EDGE, OVER
`
`THE EDGE, EDGE 3D, GAMING EDGE, EDGE GAMERS, CROSS EDGE, PLANET’S EDGE,
`
`EDGE OF TWILIGHT, LEADING EDGE, DOUBLE EDGE, SOUND EDGE, EDGE
`
`PRODUCTIONS.
`
`4.
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`“Petitioner’s Goods and Services” means the goods and services identified in
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`Petitioner’s registration and pending applications for Petitioner’s Marks and in Petitioner’s
`
`Amended Petition that are being asserted in this Cancellation proceeding.
`
`5.
`
`“Use” or “Used” shall refer to the Lanham Act definition (§45, 15 U.S.C.A. §1127),
`
`namely “bona fide use of a mark in the ordinary course of trade, and not made merely to reserve a
`
`right in a mark.” Consistent with the Lanham Act definition, a mark shall be considered to be in
`
`use in commerce: (1) on goods when the mark is placed on the goods themselves or their containers
`
`or displays used to sell the goods or on tags or labels attached to the goods, and the goods are sold
`
`or transported in commerce; and (2) on services when the mark is used or displayed in the sale or
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`advertising of services and the services are rendered in U.S. commerce.
`
`6.
`
`“Each” means each and every.
`
`2
`
`
`
`7.
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`The connectives “and” and “or” shall be construed either disjunctively or
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`conjunctively as necessary to bring within the scope of the discovery request all responses that
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`might otherwise be construed to be outside of its scope.
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`8.
`
`The use of the singular form of any word includes the plural and vice versa.
`
`RESPONDENT’S FIRST REQUESTS FOR ADMISSION TO PETITIONER
`
`REQUEST FOR ADMISSION NO. 1:
`
`
`
`
`
`Admit that the computer game titled BLEEDING EDGE was developed by Ninja
`
`Theory Limited, not by you.
`
`REQUEST FOR ADMISSION NO. 2:
`
`
`
`Admit that an employee of Ninja Theory Limited selected the mark BLEEDING EDGE
`
`REQUEST FOR ADMISSION NO. 3:
`
`
`
`Admit that whoever selected Respondent’s Mark failed to do adequate due diligence as to
`
`the conflicting prior extensive ownership of Petitioner’s Marks.
`
`REQUEST FOR ADMISSION NO. 4:
`
`
`
`Admit that at the time Respondent’s Mark was selected for use in relation to the sale of a
`
`computer game in the US market the Wikipedia entry for Petitioner stated that Petitioner is “best
`
`known for the practices of its founder and chief executive officer, Tim Langdell, in enforcing
`
`trademarks relating to the word "edge", which sources have described as "litigious".”
`
`REQUEST FOR ADMISSION NO. 5:
`
`
`
`Admit that at the time Respondent’s Mark was selected for use in relation to the sale of a
`
`computer game in the US market any reasonable due diligence as to conflicting claims of
`
`ownership of the Mark would have included viewing the Wikipedia page for Petitioner.
`
`REQUEST FOR ADMISSION NO. 6:
`
`
`
`Admit that at the time Respondent’s Mark was selected for use in relation to the sale of a
`
`computer game in the US market any reasonable due diligence as to conflicting claims of
`3
`
`
`
`ownership of the Mark would have included identification of Petitioner’s Marks used in relation
`
`to computer games and Petitioner’s various EDGE marks either registered on the USPTO
`
`database or applied for and in process of being registered.
`
`REQUEST FOR ADMISSION NO. 7:
`
`Admit that at the time Respondent’s Mark was selected for use in relation to the sale of a
`
`computer game in the US market any reasonable due diligence as to conflicting claims of
`
`ownership of the Mark would have revealed Petitioner’s use of its EDGE marks for computer
`
`games dating back to 1984.
`
`REQUEST FOR ADMISSION NO. 8:
`
`
`
`Admit that You purchased Ninja Theory Limited.
`
`REQUEST FOR ADMISSION NO. 9:
`
`
`
`Admit that it is widely reported that You announced the purchase of Ninja Theory
`
`Limited in 2018.
`
`REQUEST FOR ADMISSION NO. 10:
`
`
`
`Admit that Ninja Theory was acquired for $117 million by You, according to FTC filings
`
`revealed in the FTC v. Microsoft case and this acquisition was made public on June 10, 2018.
`
`REQUEST FOR ADMISSION NO. 11:
`
`
`
`Admit that the filing date of Respondent’s Mark in the United States was July 18, 2018
`
`and based on International Registration No. 1414773, filed April 12, 2018 and matured to the
`
`International Register on July 11, 2018.
`
`REQUEST FOR ADMISSION NO. 12:
`
`
`
`Admit that You were not involved in the selection of Respondent’s Mark.
`
`REQUEST FOR ADMISSION NO. 13:
`
`
`
`Admit that You became responsible to apply to extend the International Mark rights to the
`
`US market in July 2018.
`
`4
`
`
`
`
`
`
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`
`
`REQUEST FOR ADMISSION NO. 14:
`
`
`
`Admit that You had an obligation in July 2018 before the filing of the instant mark with
`
`the USPTO to undertake all reasonable due diligence as to conflicting claims of ownership of
`
`EDGE marks for the US market.
`
`REQUEST FOR ADMISSION NO. 15:
`
`Admit that You had an obligation in July 2018 before the filing of the instant mark with
`
`the USPTO to undertake all reasonable due diligence as to conflicting claims of ownership of
`
`EDGE marks for the US market and you failed to do so.
`
`REQUEST FOR ADMISSION NO. 16:
`
`Admit that the game published by Ninja Theory Limited titled BLEEDING EDGE was
`
`first published in March 2020.
`
`REQUEST FOR ADMISSION NO. 17:
`
`
`
`Admit that the games news outlet named “Polygon” (www.polygon.com) stated in its
`
`article dated January 28, 2021 when summarizing the reception of the BLEEDING EDGE game,
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`“It just never drew much of an audience.”
`
`REQUEST FOR ADMISSION NO. 18:
`
`
`
`Admit that the games news outlet named “Polygon” (www.polygon.com) stated in its
`
`article dated January 28, 2021 when summarizing the reception of the BLEEDING EDGE game,
`
`“SteamCharts counted the game’s PC playership at an average of 480 in its launch month of
`
`March 2020, and it’s dwindled ever since.”
`
`REQUEST FOR ADMISSION NO. 19:
`
`5
`
`
`
`
`
`Admit that in 2020 there were probably more than 214 million game players across the
`
`United States.
`
`
`
`REQUEST FOR ADMISSION NO. 20:
`
`
`
`Admit that in March 2020 having an average of only 480 players of a computer game was
`
`insufficient to build appreciable goodwill in Respondent’s Mark.
`
`REQUEST FOR ADMISSION NO. 21:
`
`Admit that the total sales of the game titled BLEEDING EDGE is barely token and
`
`insufficient to have built up any goodwill for Respondent in Respondent’s Mark.
`
`REQUEST FOR ADMISSION NO. 22:
`
`
`
`Admit that on January 28, 2021 Ninja Theory Limited, using its Twitter handle
`
`“@BleedingEdgeNT” tweeted “we have decided that there will be no further content updates for
`
`Bleeding Edge.”
`
`REQUEST FOR ADMISSION NO. 23:
`
`Admit that the Steam database indicating how many U.S. players played Your game
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`BLEEDING EDGE from May 2021 to December 2023 ranged from as few as 7 players per
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`month to no more than 10 players per month (steamdb.info).
`
`REQUEST FOR ADMISSION NO. 24:
`
`
`
`Admit that Your game titled BLEEDING EDGE that forms the basis of your claim to
`
`Respondent’s Mark has been described as “a flop.”
`
`REQUEST FOR ADMISSION NO. 25:
`
`
`
`Admit that your game BLEEDING EDGE essentially stopped having any meaningful
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`sales in the United States in or about May 2021.
`
`REQUEST FOR ADMISSION NO. 26:
`
`6
`
`
`
`
`
`Admit that Ninja Theory Limited’s game BLEEDING EDGE having “flopped” thus
`
`tarnished the EDGE brand that Petitioner had built up over the past 40 years in US commerce.
`
`
`
`REQUEST FOR ADMISSION NO. 27:
`
`
`
`Admit that at the time of acquisition of Ninja Theory Limited by you the game titled
`
`BLEEDING EDGE was in active development.
`
`REQUEST FOR ADMISSION NO. 28:
`
`
`
`Admit that You did due diligence on Ninja Theory Limited before purchasing that
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`company for a reputed $117million.
`
`REQUEST FOR ADMISSION NO. 29:
`
`
`
`Admit that any reasonably competent due diligence of Ninja Theory Limited prior to
`
`purchase would have flagged an issue of Ninja Theory naming a forthcoming game using
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`Petitioner’s long standing EDGE marks.
`
`REQUEST FOR ADMISSION NO. 30:
`
`
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`Admit that a brand name that has been used in US commerce consistently in respect to
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`computer games for around 40 years, with no other entity making comparable use of the brand
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`name, has likely acquired significant goodwill.
`
`REQUEST FOR ADMISSION NO. 31:
`
`Admit that Petitioner’s mark EDGE having been used in US commerce consistently in
`
`respect to computer games for around 40 years has likely attained fame as defined in the Lanham
`
`Act.
`
`REQUEST FOR ADMISSION NO. 32:
`
`7
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`
`
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`Admit that when You transferred the ownership of Respondent’s Mark from Ninja Theory
`
`Limited to You failed to execute a document that transferred any goodwill associated with
`
`Respondent’s Mark from Ninja Theory Limited to You.
`
`
`
`
`
`REQUEST FOR ADMISSION NO. 33:
`
`
`
`Admit that at least one person involved in the selection of Respondent’s Mark was aware
`
`of Petitioner’s claim to the mark EDGE for computer games and Petitioner’s aggressive stance in
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`protecting its EDGE marks for computer games.
`
`REQUEST FOR ADMISSION NO. 34:
`
`
`
`Admit that You have taken several actions against entities or person who have sought to
`
`use one or more of your trademarks (such as “Microsoft” or “Windows”) and added one word to
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`create a formative mark which you have argued infringes your rights in your mark.
`
`REQUEST FOR ADMISSION NO. 35:
`
`Admit Respondent’s BLEEDING EDGE mark does not meet the definition of fame
`
`required under Section 43(c) of the Lanham Act.
`
`REQUEST FOR ADMISSION NO. 36:
`
`
`
`Admit that the news page of Your website bleedingedge.com for Your game BLEEDING
`
`EDGE has no update or news on it dated more recently than July 30, 2020.
`
`DATED: this 23rd day of January, 2024.
`
`Respectfully Submitted,
`
`EDGE GAMES, INC. in pro se
`
`
`/s/ Tim Langdell
`Dr Tim Langdell CEO
`EDGE Games Inc
`
`8
`
`
`
`530 S. Lake Avenue 171
`Pasadena CA 91101
`Tel 626 824 0097
`Edgegames@gmail.com
`
`CERTIFICATE OF SERVICE
`
` I hereby certify that a true and correct copy of PETITIONER’S FIRST SET OF REQUESTS
`
`FOR ADMISSION is being served by electronic mail, this 23rd day of January, 2024, via email
`
`as follows:
`
`trademarkslv@dickinsonwright.com, jkrieger@dickinsonwright.com,
`cvillanueva@dickinsonwright.com
`
`
`
`
`
`
`
`
`
`
`/s/ Tim Langdell
`
`9
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`
`
`EXHIBIT B
`EXHIBIT B
`
`
`
`7
`
`
`
`Ww, Gmail
`
`EDGE Games <edgegames@gmail.com>
`
`
`
`RE: EXTERNAL: Re: EDGE Gamesv. Microsoft; Cancellation No 92081334 for BLEEDING
`EDGE
`
`
`John L. Krieger (he/him/his) <JKrieger@dickinson-wright.com>
`To: "Tim@Edge" <edgegames@gmail.com>
`Cc: TrademarksLV <TrademarksLV@dickinson-wright.com>, "Cindy A. Villanueva" <CVillanueva@dickinson-wright.com>
`
`Tue, Feb 20, 2024 at 5:34 PM
`
`Hi Tim:
`
`Weare in receipt of your discovery responses. | note you indicated in response to the RFPs that you would be producing
`documents. When do youanticipate you'll be producing the documents referenced?
`
`Also, as you know, our client is a large organization and it’s taking some time to gather the information and documentation
`requested per Edge Games’ discovery requests. My purpose in writing to you is to request the profession courtesy of an extension
`of time. | anticipate we’ll be able to get back to you in a couple of weeks. To be on the safe side, could we agree our client’s
`responses be due March 22? Please confirm.
`
`Thanks in advance.
`
`John
`
`

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