ESTTA Tracking number:
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`ESTTA1354433
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`Filing date:
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`04/24/2024
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding no.
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`92081334
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`Party
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`Correspondence
`address
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`Submission
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`Filer's name
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`Filer's email
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`Signature
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`Date
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`Plaintiff
`Edge Games, Inc.
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`TIM LANGDELL
`EDGE GAMES INC
`35 NORTH LAKE AVENUE
`SUITE 710
`PASADENA, CA 91101
`UNITED STATES
`Primary email: edgegames@gmail.com
`Secondary email(s): uspto@edgegames.com
`626-824-0097
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`Motion to Compel Discovery or Disclosure
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`Tim Langdell
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`edgegames@gmail.com, uspto@edgegames.com
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`/Tim Langdell/
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`04/24/2024
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`Attachments
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`Petitioners Motion to Compel Discovery REDACTED.pdf(388364 bytes )
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`EDGE GAMES, INC.
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`Cancellation No. 92081334
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`Registration No. 5,766,386
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`Mark: BLEEDING EDGE
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`MICROSOFT CORPORATION,
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`Petitioner,
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`Respondent.
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`v.
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`PETITIONER’S MOTION TO COMPEL DISCOVERY
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`EDGE GAMES (“Petitioner”), in pro se moves as follows to compel discovery in this case.
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`BACKGROUND.
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`On April 10, 2024 Respondent served on Petitioner its second set of Requests for Admission
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`(RFAs). The first new RFA referenced a document that Respondent referred to the “Settlement
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`Agreement” which it exhibited a purported copy of as Exhibit 1 to their new RFAs (exhibited
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`here to as Exhibit A). The exhibit is marked with Respondent’s Bates stamps as
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`MICRO_0001201 to MICRO_0001210. Petitioner did not review these new RFAs until April 18,
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`2024 because Respondent had flooded Petitioner with numerous discovery requests, had filed
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`several motions, and was demanding immediate responses to their requests which were overly
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`burdensome. Knowing Petitioner had 30 days to respond to the new RFAs, Petitioner had no
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`reason to believe there was any urgency to reviewing the document. However, on reviewing
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`Respondent’s second set of RFAs on April 18, 2024 Petitioner was horrified to note the reference
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`to and exhibiting of the “Settlement Agreement” that, as far as Petitioner is aware, should be
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`impossible or at least highly unlikely to legitimately be in Respondent’s possession.
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`The reason for this initial reaction by Petitioner is that Petitioner is aware of only one party in
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`the world who Petitioner knows has a copy of this exact document. And that party is in
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`1
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`opposition to Petitioner in another TTAB action, and in that action the document in question has
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`been designated by Petitioner as believed to be a fake, a forgery, and it has further been
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`designated as “confidential for attorneys eyes only” under the Standard Protective Order.
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`Since Petitioner could not conceive of any legitimate way that the document could have come
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`into Respondent’s possession, consequently, Petitioner wrote to Respondent’s representative on
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`April 18, 2024 asking as a matter of urgency, where did Respondent obtain the document from?
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`(see Exhibit B, hereto). Respondent, refused to respond. Petitioner wrote again and once again
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`Respondent refused to respond. Feeling an urgency to determine if Respondent had acquired the
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`document by illegitimate or even illegal means – a concern that only grew as the usually very
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`responsive MICROSOFT attorney refused to respond – on April 20, 2024 Petitioner wrote yet
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`again, this time giving Respondent until noon Pacific that day to respond (see Exhibit C). Since
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`Respondent’s attorney had previously responded promptly even on the weekend, this request was
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`not at all unreasonable. Respondent once again refused to respond at the time and never did
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`respond.
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`Then on April 23, 2024 Petitioner finally had a time in its schedule that had been flooded
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`with Respondent’s demands to review the motion Respondent had filed on April 5, 2024
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`requesting leave to amend its Answer and include counterclaims. Petitioner was horrified to see
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`that not only had Respondent openly, publicly, exhibited the highly confidential Settlement
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`Agreement that is elsewhere covered by the SPO, Respondent had also repeatedly referred to the
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`document and its contents throughout its motion. Indeed, the sole basis Respondent claims to
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`having a right to amend its original Answer is the document in question.
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`Petitioner urgently contacted Respondent’s attorneys and requested that they join with
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`Petitioner in asking the Board to hide their motion filing from public view and work together on
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`clarifying the source of the document. Respondent refused to respond for many hours and when
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`Respondent’s attorney did respond he specifically avoided any mention of agreeing to hide the
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`motion and its exhibits from public view and still refused to say where the document had come
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`from. Thankfully, the Board’s Interlocutory Attorney acted swiftly and hid the motion from
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`public view. However, it is unknown if any third party viewed or downloaded the motion before
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`it was hidden, since it was viewable for over two weeks. Petitioner never imagined for one
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`moment that Respondent would knowingly, deliberately put such an obviously sensitive
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`document on public view or make public comments about it and its contents, without first
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`checking with Petitioner as to its position regarding SPO designation of it. It thus never occurred
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`to Petitioner that it should have reviewed Respondent’s motion earlier. And frankly in hindsight it
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`would appear that Respondent keeping Petitioner extremely busy with other demands was an
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`intentional distraction intended to cause Petitioner to be delayed in asking the motion to be
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`hidden.
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`In subsequent correspondence, Respondent has now stated that it was Respondent’s client
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`who obtained the Settlement Agreement, and that the MICROSOFT employee did not obtain it
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`from Electronic Arts but rather than another party whom Respondent refuses to name. Petitioner
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`has given notice to Respondent of its intention to depose Respondent’s attorney Mr. Krieger in
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`early May to ask him where Respondent got the document from, but Mr. Krieger has given every
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`reason for Petitioner to believe he will simply object and refuse to answer. Hence the necessity
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`for this instant motion, together with the fact of the urgency of this situation that will not wait
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`until there is time to depose Mr. Krieger.
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`Last, it is noted that in the other proceeding before the Board Petitioner’s opponent has spent
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`the past 2 years trying to get the document in Exhibit A, or one like it, admitted into evidence in
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`that other case and to get the exact document in Exhibit A that Petitioner had designated as
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`confidential for attorneys eyes only, reclassified by the Board as non-confidential. And that as of
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`the date of filing this motion, that opponent has been unsuccessful in either finding any valid way
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`to introduce the document into evidence in those other proceedings or any way to convince the
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`Board to remove the document’s confidential status. This is partly because in those other
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`proceedings the opponent has also steadfastly refused to say from whom they obtained the
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`purported Settlement document, leading to a reasonably conclusion that the other opponent either
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`forged the document or obtained it illegitimately or possibly illegally. It is thus highly suspicious
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`that suddenly Respondent is in possession of the exact same, designated suspected forgery,
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`confidential document which it immediately used by Respondent without checking with
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`Petitioner as to its confidentiality designation, and exhibited publicly to a motion Petitioner had
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`no warning of, and in regard to which Respondent steadfastly refuses to say where Respondent
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`got the document from. On its face, this appears to be collusion between MICROSOFT and the
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`other opponent to find a “backdoor” method to make public a document that is designated
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`confidential in the other Board proceedings. Such behavior should not be tolerated by the Board
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`and should be sanctioned heavily.
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`REQUEST TO COMPEL DISCOVERY
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`Petitioner thus requests that the Board order Respondent to reveal the name of the person
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`who provided the document in Exhibit A hereto, the name of the Respondent’s employee who
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`receive the document, the name and affiliation of the person who gave the document to
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`Respondent, and the date on which this occurred.
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`If the Board believes that it is unusual for a request to compel the revelation of the source of a
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`document during discovery at this stage, these are extremely unusual circumstances. For
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`instance, if, as we are confident is the case, Respondent acquired the document illegitimately, and
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`perhaps illegally, or if the document in question is elsewhere designated as a forgery and
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`designated under the SPO as confidential for attorneys eyes only, then this would form a valid
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`basis for Petitioner to respond to Respondent’s motion to amend its Answer and add
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`counterclaims asking the motion to be denied on grounds the document was illegitimately or
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`even illegally obtained and/or is a suspected forgery. However, Petitioner’s response to
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`Respondent’s motion to amend its Answer is due either today or tomorrow, and Respondent has
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`successfully deliberately blocked Petitioner from being able to make these legitimate objections
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`to their motion by refusing to clarify the source of the document.
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`Knowing who gave the document to Respondent and when will also go to whether the
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`document is admissible in these proceedings. If it was obtained illegitimately, or worse illegally,
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`and if it was obtained in contravention of the Standard Protective Order, then that forms a valid
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`basis for Petitioner to argue that the document should not be accepted in to evidence. And for the
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`record, Petitioner states here that it does not accept that the Settlement Agreement has been
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`successfully entered into evidence despite it being exhibited to a publicly filed motion or it being
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`exhibited to this motion (which is being filed under seal). The document has not been verified or
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`authenticated and has been designated by Petitioner as “confidential for attorneys eyes only” in
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`these proceedings as it was in the other proceedings, and designated as a suspected forgery as it
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`was in the other proceedings.
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`Petitioner thus requires either an extension of time to respond to Respondent’s motion to
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`amend its Answer and add counterclaims, or Petitioner needs the Board to rule that it may amend
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`any response it files to that motion at this time at such later date as the true facts regarding the
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`Settlement Agreement become clear. This motion thus also incorporates that request for an
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`extension of time or the right to amend any response it is forced to give at this time.
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`There are thus at least two valid and urgent reasons why Petitioner has a right to know from
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`whom Respondent received the Settlement Agreement, and when. Petitioner has a right to know
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`the names of both the person providing the document and the person in Respondent’s employ
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`that received the document since Petitioner has a right to conduct Discovery Depositions of both
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`of these people, and yet Discovery is only a matter of days away from closing. This motion
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`should thus also stand as the Board being aware that it is certain that Petitioner will need a
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`substantial extension of the discovery deadline, of at least 90 days in order to obtain the
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`information sought and then to depose the individuals involved.
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`WHEREFORE PETITIONER ASKS
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`1. That the Board compel Respondent to name and contact details of the person together
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`their affiliation (corporate or otherwise) who provided the Settlement Agreement to
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`Respondent, the name and contact details of the person at Respondent who received
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`the document, and the date on which this handover took place.
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`2. Because this information when provided will likely enable Petitioner to prove the
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`document in question is a forgery or that it was produced illegitimately or in
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`contravention of the SPO, and because such information is vital to Petitioner being
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`able to make a complete response and objection to Respondent’s motion to amend its
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`Answer, Petitioner also asks that the Board either extend the time for it to respond to
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`Respondent’s motion to amend its answer to at least 30 days after the information has
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`been revealed, or permit Petitioner to later amend its response that it is forced to make
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`at this time to that other motion as and when the details regarding the Settlement
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`Agreement are revealed.
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`3. That the Board further compel Respondent to reveal the names of the persons who
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`were involved in the receipt of the document by Respondent so that Petitioner may
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`have the opportunity to conduct discovery depositions of those persons.
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`4. That the Board do extend discovery in these proceedings for at least 90 days from
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`when Respondent reveals the information sought herein.
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`5. That if Respondent colluded with a party in another case before the Board, or a
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`representative of that other party, to receive and, worse, make public a document that
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`has been designated as a suspected forgery in that other case, and has been designated
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`as “confidential for attorneys eyes only” in that other case (which by definition means
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`Respondent should never have become aware of the document, let alone receive a
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`copy of it), then Respondent and its counsel should be appropriately sanctioned for
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`this behavior. Respondent’s attorney should be barred from being permitted to appear
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`before the Board in this or any future TTAB action, and Respondent should be
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`penalized by this petition being terminated at this time in favor of Petitioner.
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`LAST, A NOTE TO THE BOARD: Because of the highly sensitive nature of this motion and its
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`contents and exhibits, it will be filed under seal and a redacted copy will be filed publicly.
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`However, the publicly filed version will be extremely heavily redacted since not only must the
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`document not be revealed but all potential indicators as to what is being discussed here must be
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`hidden from public view too or else the public may guess what the document is.
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`DATED: this 24th day of April, 2024.
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`____________________________
`Signature
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`CERTIFICATE OF SERVICE
`I hereby certify that a true and correct copy of PETITIONER’S MOTION TO COMPEL
`DISCOVERY is being served by electronic mail, this 24th day of April, 2024, via email as
`follows:
`trademarkslv@dickinsonwright.com, jkrieger@dickinsonwright.com,
`cvillanueva@dickinsonwright.com
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`7
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`/s/ Tim Langdell
`CEO of Petitioner in pro se
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`EXHIBIT A
`(exhibit redacted due to confidentiality)
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`8
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`EXHIBIT B
`(exhibit redacted due to confidentiality)
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`9
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`EXHIBIT C
`(exhibit redacted due to confidentiality)
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`10
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