ESTTA Tracking number:
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`ESTTA1387095
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`Filing date:
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`10/02/2024
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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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`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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`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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`Reply in Support of Motion
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`Tim Langdell
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`edgegames@gmail.com
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`/Tim Langdell/
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`10/02/2024
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`Attachments
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`Petitioners Reply in Support.pdf(2280502 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Cancellation No. 92081334
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`
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`In the Matter of Registration No. 5,766,386
`For the Trademark BLEEDING EDGE
`Issued June 4, 2019
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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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`Trademark Trial and Appeal Board
`U.S. Patent and Trademark Office
`P.O. Box 1451
`Alexandria, Virginia 22313-1451
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`PETITIONER’S REPLY IN SUPPORT OF MOTION CHALLENGING
`THE DESIGNATION OF EXHIBIT TO RESPONDENT’S MOTION
`FOR LEAVE TO AMEND
`EDGE Games, Inc. (“Petitioner”) replies in support of its motion challenging designation.
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`Petitioner was blindsided by Respondent’s revelation in its Opposition to Motion that the EA
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`document in question had previously been made public in August 2011. Petitioner is not saying
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`that Respondent intended to blindside Petitioner, but simply that Petitioner had no recollection of
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`any version of the EA document ever being made public at any time. Indeed, if Respondent had
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`only thought to contact us when they discovered the 2011 filing, we could probably have
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`resolved the designation issue by withdrawing the motion rather than their filing the
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`outrageous falsehood-filled defamatory Opposition to Motion that Petitioner is now
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`compelled to take time to respond to given the public nature of the baseless attack.
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`1
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`Petitioner emphatically denies that this motion to challenge the confidentiality designation
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`was in any way frivolous or unfounded, and strongly denies it was based on misrepresentation.
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`Petitioner rejects Respondent’s defamatory rhetoric that the motion was based “at best, on Mr.
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`(sic) Langdell’s failing memory, and at worst, on knowing misrepresentations to the Board.”
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`The top-level summary of this Reply is simply that, as Dr. Langdell’s Supplemental
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`Declaration hereto shows, the court in 2010 did not find that Petitioner or he had ever
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`committed fraud on the USPTO, and that the EA Settlement was designed to confirm that
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`there was no finding of fraud or any evidence that Petitioner ever abandoned any of its
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`EDGE marks. Contrary to the image Respondent tries to paint of Petitioner, Petitioner has
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`won every trademark action relating to EDGE marks it has brought or defended to a
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`conclusion for the entire past ten years. That’s at least eleven wins in trademark office actions
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`in the UK, France, Germany and the U.S. with tribunals repeatedly finding Petitioner does
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`validly own all of its family of EDGE-formative marks for computer games and related products.
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`PETITIONER WAS JUSTIFIED IN FILING THE INSTANT MOTION
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`The motion, while partly based on best efforts to recall events of 14 years ago that may
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`have been imperfect, was primarily based on hard fact and documentary evidence that appeared
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`to support that the motion was valid and appropriate to file. The Board should note the following
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`pertinent facts that led Petitioner to believe it had every right to file the instant motion at the time
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`it was filed, and that filing it was entirely justified.
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`1.
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`As Dr. Langdell avers in his attached Supplemental Declaration in Exhibit A (Langdell
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`decln. ¶¶ 2-9), Petitioner’s company records contain no evidence Petitioner ever signed the
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`version of the EA Settlement exhibited by Ms. Gajwani. By contrast, Petitioner’s company
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`records showed Petitioner executed a different version that does contain a confidentiality clause.
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`2
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`2.
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`It is a fact, not disturbed by any evidence produced by Respondent, that in the 14 years
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`since the time of the settlement in October 2010, neither EA nor Petitioner have ever made public
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`the Settlement Agreement document. This strongly supported the belief of agreed confidentiality.
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`3.
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`EA has also never once, to Petitioner’s knowledge, publicly spoken about or publicly
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`revealed the details or contents of the Settlement Agreement. All EA appears to have ever
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`commented to the press about the settlement was, “We’re pleased that we’ve reached a settlement
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`and can put this behind us. This settlement goes a long way to protecting the rights of
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`independent developers.” While Petitioner takes great exception to the latter part of EA’s public
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`statement (it is a deliberate falsehood for EA to suggest independent developers needed to be
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`protected from Petitioner), this statement by EA is hardly an example of it “talking freely” about
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`the wording of the Settlement Agreement. Thus, yes, Petitioner can and does “deny the fact EA
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`publicly discussed … the EA Settlement Agreement” (as Respondent falsely stated on page 6).
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`4.
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`Before filing its motion, Petitioner did an exhaustive check of whether EA or Petitioner
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`had ever made public a copy of any version of the EA/EDGE Settlement Agreement and was
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`unable to find any such occurrence—neither in any court record nor in TTABVUE. What
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`Petitioner did not do was check whether any third party had publicly disclosed a copy of a version
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`of the Agreement, and thus Petitioner missed this filing by Future Publishing Ltd in August 2011.
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`5.
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`It is worth noting that it is not only Petitioner that missed the fact of Future Publishing’s
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`2011 filing, since in two other proceedings—one that lasted from 2013 to 2020 (Opposition No.
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`91212834) and the other 2020 to date (Cancellation No. 92075393)—there has been over a
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`decade of extensive discussion about whether the EA Settlement Agreement was ever made
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`public or whether it should be considered confidential, and until Respondent brought the 2011
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`Future Publishing filing to our attention Friday September 13, 2024, no one in over a decade had
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`previously noticed that 2011 filing had ever happened. It is perhaps not surprising that Petitioner
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`found, as Dr. Langdell avers in his Supplemental Declaration (Langdell decln. ¶ 35), that it had
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`never opened that filing in TTABVUE and thus must have based any response entirely on what
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`was emailed and relied on any assurance of filing under seal as stated in the email.
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`6.
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`As also detailed in the declaration ( Langdell decln. ¶¶ 9-14), there was appreciable
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`evidence in TTAB filings in 2010 and 2011 that supported Petitioner’s recollection of which
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`version of the Agreement was the true final one, and hence that confidentiality was agreed.
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`This motion was thus well intended, in good faith, was not based on any
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`misrepresentations; any shortcoming in memory was entirely understandable given the lapse of
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`time in question and given that a veritable army of people had been scouring the Internet for any
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`evidence the Settlement had been made public over the past decade, and they all missed the fact
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`of the 2011 filing, as Petitioner did.
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`CLARIFYING THE TRUTH ABOUT THE EA/EDGE SETTLEMENT
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`Leaving aside the two disputed issues between EA and EDGE Games (whether the final
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`Agreement contained a confidentiality clause or any clause limiting EDGE’s future
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`registrations1), there were two conditions that EA agreed to that were critical to Petitioner.
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`Indeed, as Dr. Langdell avers in his Supplemental Declaration, EDGE Games would never have
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`signed the Settlement Agreement had EA not agreed to these two essential cornerstone
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`conditions (Langdell decln. ¶ 5): Condition 1: That the Agreement and Final Court Order make
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`1 Petitioner has exhibited the version of the final EA Settlement Agreement its records show it
`executed in 2010, to a filing in the Cancellation proceedings No. 92075393. That exhibit
`contains a confidentiality clause. Petitioner does not see the need to also introduce that document
`into these proceedings now the confidentiality issue of the EA version is moot, but the Board can
`see that the document is real and is not a figment of imagination conjured up by Petitioner to
`misrepresent the facts to the Board.
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`clear that neither Petitioner nor Dr. Langdell were found to have committed fraud on the
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`USPTO, or misled the USPTO in any way; and, Condition 2: That the Agreement and Final
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`Court Order make clear that Petitioner’s claim to its then 30-years of common law rights in its
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`EDGE marks is valid and there is no evidence that Petitioner ever abandoned any of its EDGE
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`marks.
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`These two conditions were critically important to Petitioner in October 2010 to undo the
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`damage caused to Petitioner by EA deliberately misleading the Judge into giving his Order/
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`Opinion dated October 1, 2010 that appeared on its face to suggest he thought it likely Petitioner
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`and/or Dr. Langdell had committed fraud in obtaining or maintaining its EDGE marks, and his
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`opinion, based on EA’s misrepresentations, that Petitioner may have abandoned use of its EDGE
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`marks. None of what EA tricked the Judge into opining in his October 1, 2010 Order on Motion
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`for Preliminary Injunction was true, and EA knew it was not true when it deliberately misled the
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`Court using false information, images that EA had fabricated and/or manipulated, and other
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`tricks intended to give the false impressions to Judge Alsup that Petitioner had committed fraud
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`and had abandoned its EDGE marks. EA was in receipt of documentary and other proof that
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`none of their fraud claims, claims of misrepresentation, or claims of abandonment due to non-
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`use, had any foundation at all.
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`It is important to note that in his October 1, 2010 Order the only order the Judge gave was to
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`deny the Motion for Preliminary Injunction: the Judge did not make an order that he had found
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`Petitioner or Dr. Langdell to have actually committed fraud on the USPTO, or had ever misled
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`the USPTO, or that Petitioner had ever actually abandoned any of its EDGE marks. On page 17
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`of his Order, Judge Alsup states that he feels the record contains evidence suggestive of
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`Petitioner committing fraud against the USPTO, but most crucially he ends that statement by
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`clarifying “if the misrepresentations prove true.” In other words, he is not stating that the
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`misrepresentations have been proven true since it was a jury trial case that had not even started
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`discovery yet, let alone reached a point of litigating the issues on their merits with Petitioner
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`being permitted to respond to EA’s absurd allegations regarding fraud and abandonment.
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`Perhaps most clearly of all, on page 21 of his Order, Judge Alsup states that while in his
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`opinion there may be compelling arguments that the marks were fraudulently registered or may
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`have been abandoned by [EDGE Games], “… a jury may ultimately find otherwise.” In other
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`words, the Judge was very aware that this was a jury trial and only the jury could eventually
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`render a decision as to whether any fraud or abandonment had occurred, and it is not for the
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`Judge in a jury trial to make any such a decision or ruling. It has become the favorite sport of
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`some—including now, it appears, Respondent Microsoft—to deliberately mischaracterize Judge
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`Alsup’s October 1, 2010 Order and falsely claim that in it he found or that he ruled that
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`Petitioner and Dr. Langdell were guilty of fraud on the USPTO and that he found or that he ruled
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`that Petitioner had abandoned its marks through non-use. Whereas of course, Judge Alsup made
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`no such findings and made no such order as to whether Petitioner had in fact committed any
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`wrongdoing or had actually abandoned any of its EDGE marks.
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`Thus, if EA at any time represents that EDGE Games or Dr. Langdell engaged in some kind
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`of wrongdoing, or even if EA refers to Judge Alsup’s 10/1/10 Order as if his opinion somehow
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`‘proved’ the court found guilt of fraud, then EA would be in breach of the Settlement
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`Agreement. This constitutes an irreparable breach of the Settlement which releases EDGE
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`Games of any commitments or restrictions it may have had under the Settlement (that said, the
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`Agreement was already proven void on its face, so the breach is perhaps moot—see below).
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`THE EA SETTLEMENT WAS OBTAINED THROUGH EA’S MISREPRESENTATION
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`The irony is not lost on Petitioner that while there is a malicious attempt to falsely paint
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`Petitioner and Dr. Langdell as having participated in fraudulent conduct, the indisputable fact is
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`that the settlement between EA and Petitioner came about because EA knowingly with malice
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`aforethought deliberately misled the Court in 2010 in order to try to convince the court that
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`Petitioner had committed fraud when it was obvious it had not. Not least because before EA
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`made its knowingly false and misleading statements to the court it was already in possession of
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`evidence supplied by Petitioner proving none of the fraud allegations or the claims of
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`abandonment of marks were true. The court did not permit a full rebuttal at the time by
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`Petitioner, deferring full litigation to the jury trial itself. Which of course never occurred.
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`As can be seen in Dr. Langdell’s Supplemental Declaration (at ¶¶ 19-32), it is
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`undisputable that EA deliberately misled the Court in 2010 into thinking Petitioner had
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`committed fraud on the USPTO when in fact there was no evidence whatsoever that such fraud
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`had taken place. What had taken place was EA misleading the court by mislabeling images and
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`even fabricating or manipulating images to make it appear to the court that Petitioner had acted
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`badly when it had not done so. EA deliberately misstated facts they knew to be false such as
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`claiming 2004 game packaging for Petitioner’s title “Mythora” was faked because it displayed a
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`domain name that EA alleged Petitioner had first registered in 2008. What EA knew because the
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`proof had been supplied to it, and deliberately hid from the court, was that Petitioner had
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`previously registered the domain name in 2003, that through clerical error the domain was
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`briefly unintentionally abandoned, and then re-registered by Petitioner in 2008 (Langdell decln. ¶
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`28). Similarly, EA through its attorney Mr. Klieger, discovered that while one link on
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`Petitioner’s website “Store” page for each game enabled Mr. Klieger to purchase the game, a
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`nearby link went to a “resource not found” notification. EA then deliberately hid that they could
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`easily purchase Petitioner’s games by links that were working, and misled the court by falsely
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`claiming the only links were ones that did not work, falsely claiming this ‘proved’ consumers
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`could not buy Petitioner’s games (Langdell decln. ¶¶ 29-30). There was, then, absolutely no
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`genuine evidence before Judge Alsup in 2010 that EDGE Games or Dr. Langdell had ever
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`committed any wrongdoing or had abandoned any of Petitioner’s marks, and certainly no
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`evidence that EDGE Games had committed fraud on the USPTO.
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`OTHER THAN CONFIDENTIALITY CONCERNS, PETITIONER HAD NO ISSUE
`WITH THE SETTLEMENT BEING PUBLIC
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`Respondent tries to suggest devious motives for Petitioner’s desire to designate the EA
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`version of the Settlement Agreement as confidential. But the simple fact is, Petitioner has been
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`driven by one simple concern: namely, the concern that any third party reading the Settlement
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`may mistake the details of it as setting some kind of precedent for the terms under which
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`Petitioner would settle any future trademark dispute. In no sense whatsoever has Petitioner’s or
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`Dr. Langdell’s intention being to “hide their fraudulent actions and misstatements behind a
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`veneer of confidentiality” since, simply, there have been no such actions or misstatements.
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`First, Petitioner has never tried to prevent the Board from openly viewing all such
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`documents. Second, and most importantly, the Settlement Agreement absolves EDGE Games
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`and Dr. Langdell of any wrongdoing and thus there is no logic in suggesting hiding it from the
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`public is hiding “fraudulent actions and misstatements.” That is pure nonsense. This declaration
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`is at the commencement of the undisputed portion of the EA Settlement Agreement:
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`Nothing else in the EA/EDGE Settlement Agreement addresses anything about fraudulent
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`actions or misstatements so Petitioner cannot see why Respondent believes the Settlement
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`Agreement has any bearing on this case. Indeed, the Future Publishing’s “Intervener Response”
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`filing of March 2011 proved that both the Settlement and the 2010 Court Order were both void
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`on their face (Langdell decln. ¶¶ 17-18).
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`MISCHARACTERIZATION OF THE EA SETTLEMENT AND ITS RELEVANCE
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`That being said, the way Ms. Gajwani and Respondent portray the Court Order and
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`Settlement reached by EA and Petitioner, the Board might be forgiven for mistakenly believing
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`EA won on all counts and Petitioner lost on all counts. Nothing could be further from the truth.
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`The EA dispute and its outcome is commonly misunderstood and sadly such misunderstanding is
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`not helped by misstatements of the facts such as Respondent and Ms. Gajwani indulged in.
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`The EA/EDGE settlement in a nutshell was that neither EDGE Games nor its CEO Dr.
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`Langdell either admit to, or be found guilty of, any wrongdoing (i.e. no admission or finding of
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`any fraud), and that EDGE Games would specifically be affirmed to retain ownership of all its
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`common rights in all of its EDGE-related marks (Final Order states the Sixth Claim, Declaratory
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`Relief, that tried to claim EDGE has no common law rights, is ruled in EDGE’s favor), no mark
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`being considered to have been abandoned through non-use or any registration to have been
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`acquired wrongfully. While EDGE would be agreeing to voluntarily surrender a few of its U.S.
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`‘EDGE’ related trademark registrations, none of them would be being surrendered (or cancelled)
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`on the basis of being abandoned or for having been acquired improperly through fraud on the
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`USPTO or otherwise. The intention of the voluntary surrender of certain of EDGE’s marks was
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`to reset the priority filing dates only, thus removing a certain amount of the basis for EDGE
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`taking legal action based on filing date priority and to give up the fact one of the EDGE marks
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`had achieved incontestability. The parties were affirming by this that priority of use (common
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`law rights and goodwill) determine trademark rights, not trademark registrations.
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`CONCLUSION
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`Petitioner’s grounds for filing the instant motion included its belief based on recollection and
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`company records that the final executed Settlement Agreement contained a confidentiality
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`clause, and separate evidence the parties had in any event communicated an agreement to
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`confidentiality. However, since EA deny signing the version of the Settlement that contained the
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`confidentiality clause, and since the evidence in Petitioner’s record indicating confidentiality had
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`been agreed is attorney-client privileged and cannot be produced (Langdell decln. ¶ 4), Petitioner
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`accepts there is no proof that can be entered into the record that confidentiality was agreed upon
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`which would cover the version of the document in dispute here. Hence, because Respondent has
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`shown that the EA version of the Settlement Agreement was previously made public in August
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`2011, Petitioner concedes that this new information means it withdraws its request that this
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`particular version of the document be not made public. It is noted though that Petitioner’s
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`position remains that best recollection and its company records both indicate that it did not
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`execute that version of the document, and Petitioner reaffirms that the defamatory and false
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`statements made by Respondent in is Opposition to Motion regarding fraud by Petitioner are
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`without foundation and constitute deliberate malicious intent to mislead the Board and unfairly
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`sway the Board’s opinion in favor of Microsoft and against EDGE Games.
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`Dated October 2, 2024
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`Respectfully submitted,
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`By: ____________________
`Dr. Tim Langdell, CEO
`Petitioner in pro se.
`EDGE Games, Inc.
`35 N Lake Avenue, Ste 710,
`Pasadena, CA 91101
`edgegames@gmail.com; uspto@edgegames.com
`626 824 0097
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`(certificate of service on separate page)
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`10
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`CERTIFICATE OF SERVICE
`I hereby certify that pursuant to CFR 2.101(b), on October 2, 2024 a true and correct copy of the
`foregoing PETITIONER’S REPLY IN SUPPORT OF MOTION CHALLENGING THE
`DESIGNATION OF EXHIBIT TO RESPONDENT’S MOTION FOR LEAVE TO AMEND
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`Was served via email on Respondent’s counsel:
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`trademarkslv@dickinsonwright.com, jkrieger@dickinsonwright.com,
`cvillanueva@dickinsonwright.com
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`/Tim Langdell/____________
`Dr. Tim Langdell
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`11
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`EXHIBIT A
`EXHIBIT A
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`12
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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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`SUPPLEMENTAL DECLARATION OF DR. TIMOTHY LANGDELL
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`Dr. Timothy Langdell, of full age, declares as follows:
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`1. I make this declaration in support of Petitioner’s Reply in Support of Motion regarding
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`the challenge to confidentiality designation.
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`2. At the time of filing the instant motion, all of the evidence available to me in my role as
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`CEO of Petitioner, together with my best recollection of the events of 2010, strongly
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`suggested that Electronic Arts (“EA”) and EDGE Games had agreed to keep the
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`Settlement Agreement, and details of its contents, along with all drafts of the Agreement,
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`confidential. As has been stated in other proceedings before the Board, Petitioner’s copies
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`of key electronic documents from October 2010 had been lost due to a computer hard
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`drive failure. Therefore, Petitioner’s company records did not contain anything to suggest
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`that EA had rejected the final draft of the Settlement that my best recollection Petitioner
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`13
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`had signed and conveyed to them as a counteroffer to the version EA has sent to EDGE.
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`Further, there was no evidence in the Petitioner company records that EA had ever
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`returned a counter-signed copy of the final Settlement Agreement to Petitioner that could
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`have assisted in my memory of which draft of the Settlement had been executed or
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`enabled Petitioner to challenge EA as to the true nature of the final executed draft of the
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`Agreement (since it now seems possible each party may have signed a different ‘final’
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`version and EA attached Petitioner’s signature page to their draft rather than ours).
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`3. More recent discovery of backups of electronic files from the 2010 time period appeared
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`to support my memory that the final version of the Settlement that I signed on behalf of
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`Petitioner and conveyed to EA was the version containing the confidentiality clause.
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`Moreover, the backups of confidential attorney-client communications uncovered
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`recently also seemed to support that Petitioner had expressly rejected the draft EA had
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`headed “EXECUTION COPY” because Petitioner wished a confidentiality clause and did
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`not agree to a clause limiting which marks Petitioner could register in future.
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`4. While there appeared to be a sizable amount of documentary evidence recovered
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`in the backup files to support that the parties had agreed to confidentiality regardless of
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`whether there was a clause in the final signed Agreement, on review and reconsideration
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`I have discovered all of the key documents supporting my memory of events are covered
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`by attorney-client privilege and since Petitioner does not waive that privilege, neither I
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`nor Petitioner can exhibit those documents. The version of the Settlement Agreement to
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`my recollection and the one that I had executed on behalf of Petitioner is exhibited in the
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`other proceedings the Board is aware of, and thus I do not exhibit it again here because
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`EA have declared they did not sign that version. Since they aver they did not sign the
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`14
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`version with the confidentiality clause—which the Board can see covered all drafts of the
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`Agreement, too—the document becomes irrelevant to this motion in that Petitioner
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`cannot proffer it as proof that confidentiality was agreed upon. However, the document is
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`on file with the Board and thus the Board can see it did genuinely form part of the
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`evidence before Petitioner at the time of filing the instant motion, all of which
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`contributed to my quite reasonably concluding that EA had agreed to confidentiality
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`regardless of whether their draft produced by Respondent had a clause mentioning that
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`agreement. And as confirmed elsewhere, the draft of the Agreement I created (the
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`counter-proposed final agreement) and recall signing as final on behalf of Petitioner was
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`also headed by me “EXCUTION COPY” since I was basing the version I created on the
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`version sent by EA that had that heading. Thus, it is my recollection that both final
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`drafts—the one by EA and the one by Petitioner—had the same header.
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`5. I recall that there were two conditions I, on behalf of Petitioner, insisted on when
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`negotiating the settlement, without EA’s agreement to which Petitioner would never have
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`signed: Condition 1: That the Agreement and Final Court Order make clear that neither
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`Petitioner nor I were found to have committed fraud on the USPTO, or misled the
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`USPTO in any way; and, Condition 2: That the Agreement and Final Court Order make
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`clear that Petitioner’s claim to its then 30-years of common law rights in its EDGE marks
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`is valid and there is no evidence that Petitioner ever abandoned any of its EDGE marks.
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`6. I also recall the hectic heavily time-pressured situation at the time the settlement between
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`EA and EDGE Games was reached, or more accurately was believed to have been
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`reached—since there is now considerable doubt that any agreement was actually reached,
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`or even could have been reached without the necessary and essential party, Future
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`Publishing, also being a party to the Agreement and the court action. It is my recollection
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`that the substantive negotiations of the settlement all occurred on October 6, 2010 with
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`EA exercising extreme pressure on Petitioner to accept their version of a rushed
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`settlement and execute it before the close of that day. I still recall clearly that this felt like
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`undue, unfair pressure by EA on Petitioner and I also recall at the time EA forcing us to
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`accept the inclusion of a clause headed “No Undue Influence” when EA were well aware
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`they were exerting extreme undue influence on Petitioner to force Petitioner to sign
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`within that day. I also recall that the final ‘execution copy’ was to be signed in
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`counterparts and indeed I believe both claimed versions of the final agreement contain a
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`clause stating, “Execution in Counterparts.” This meant that there was no single agreed
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`upon version of the Settlement Agreement that representatives gathered in the same room
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`to all sign together. Rather, signature pages were transmitted electronically and, as I
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`recall, were collated and assembled by someone at EA. Since according our company
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`records there is no evidence of EA returning a copy of assembled complete agreement to
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`Petitioner, with all the signature pages and with all attachments so that we could check
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`the final agreement was indeed as we had approved it to be.
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`7. At the time of filing the instant motion, then, Petitioner’s documentary record and my
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`best recollection all suggested EA and Petitioner had agreed to confidentiality. Added to
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`this was publicly available information and documents which I sincerely believed also
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`were strongly suggestive that confidentiality had been agreed and that on balance it did
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`seem the parties had executed Petitioner’s final draft of the Agreement that included the
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`confidentiality clause covering not only the document itself but also all drafts and all
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`documents pertaining to the settlement negotiations.
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`8. The additional public evidence that my recollection of the events of October 2010 were
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`correct seemed strong. First, the fact—which I still believe to be true to the best of my
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`knowledge—that in the 14 years since EA and Petitioner believed they had settled their
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`dispute neither EA nor Petitioner had ever made public a copy of what they believed the
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`Settlement Agreement to be nor had either party ever publicly discussed the details
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`contained in what they believed to be the settlement document. This alone was strong
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`support for my recollection that confidentiality had been agreed as to the public sharing
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`of the document or public discussion of the details of its contents. The fact that as far as I
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`know this was still true until Ms. Gajwani appeared to recently break confidentiality for
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`the first time, which still persuades me that the prior 14 years of silence on the issue does
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`reveal the parties agreed to keep the document confidential.
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`9. There is other public evidence that strongly suggested to me that the parties had agreed
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`confidentiality, and that the Petitioner draft of the Settlement was the final executed one,
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`not the one in dispute exhibited by Ms. Gajwani. Namely, when the court case and
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`settlement were concluded in October 2010, EA’s trademark attorneys then filed a
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`document in the Cancellation case EA had brought against Petitioner’s registrations
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`attempting to use the Court’s Final Order to terminate the proceedings in EA’s favor and
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`cancel Petitioners trademarks subject of those proceedings. See Exhibit TL1 hereto,
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`which is filed at docket #28 of Cancellation No. 92051465, dated October 18, 2010.
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`10. On behalf of Petitioner I urgently contacted EA’s trademark attorneys to ask them to
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`withdraw their filing. It is my best recollection that what I reminded them was that the
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`EA Settlement Agreement the parties had just executed had as core terms EA’s
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`agreement that Petitioner was deemed not to have committed any fraud on the USPTO
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`and that Petitioner was deemed to have retained all of its common law rights in its U.S.
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`trademarks, affirming that Petitioner had not abandoned any of its marks by non-use.
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`Since EA’s grounds for the cancellation action were solely that Petitioner had either
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`committed fraud on the USPTO or that Petitioner had abandoned its marks through non-
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`use, consequently the Court’s Final Order could not be used to terminate the Cancellation
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`proceedings in EA’s favor (which would have suggested, or indeed maybe stated, thereby
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`that Petitioner had committed fraud or had abandoned its marks).
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`11. As I recall, I also reminded EA’s trademark attorneys that in the Settlement Agreement
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`the parties had agreed that initially Petitioner would attempt to voluntarily surrender its
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`few U.S. trademarks EA had insisted be surrendered, and that only if the USPTO refused
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`or failed to accept the voluntary surrenders would EA then seek to use the Court Order to
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`cancel the marks. To Petitioner this was a key part of the agreement since the Court
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`Ordered cancellation of the marks was not an order made by the court after litigation of
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`the case on its merits and finding there was fraud or there was abandonment or any other
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`legal grounds for cancelling a trademark, rather the court order was authored by EA and
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`Petitioner to reflect the mutual agreement that Petitioner was voluntarily surrendering
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`these few U.S. registrations as a commercial compromise as part of the settlement. The
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`court order to cancel the marks was to be a “plan B” only to be employed if the USPTO
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`refused or failed to accept the voluntary surrenders