TTAB
`
`Matthew Schwartz
`
`JewishAmericanSingles.com
`P.O. Box 279
`
`Birmingham, MI 48009
`(248) 594-4068
`
`May 31, 2006
`
`Commissioner for Trademarks
`
`Attention: Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, Virginia 22313-1451
`
`Re:
`
`Spark Networks plc v. JewishAmericanSingles.com
`In the Matter of Trademark Application Serial No. 78460372
`Opposition Number 91165925
`
`Dear Sir or Madam:
`
`We are enclosing herein JewishAmericanSingles’ Discovery Motion re: Sparks’s
`purported supplemental answers to interrogatories, request for production and request to
`admit. We are also enclosing herein Proof of Service as we have mailed a hard copy of
`the Motion with exhibits to Spark’s attorney on this date.
`
`We have not enclosed close to 1000 pages which Spark dumped on us, but we do
`reference it in the Motion.
`It is non-responsive and in the interest of saving trees,
`postage, time and wear and tear on scanning equipment have left it out but include a
`description in the Motion. Please advise if you feel it necessary for us to send a copy.
`
`Thank you very much for your consideration.
`
`
`Very
`
`
`
`
`Matthew Schwartz
`
`|||||||||||||ll|||||||l|||||||H||||||lH||||||ll|
`
`06-05-2006
`US. Patent & TMOfcITM Mail Rcpt D1. #72
`
`Enclosures
`
`CC: Victor T. Fu, Esq.
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of trademark application Serial No. 78460372
`For the mark: "JewishAmericanSingIes.com"
`Filed on: August 2, 2004
`Published in the Official Gazette on: July 5, 2005
`
`Spark Networks plc
`
`V.
`
`JewishAmericanSingles.com, Inc.
`
`PROOF OF SERVICE
`
`) )
`
`SS.
`
`STATE OF MICHIGAN
`
`COUNTY OF OAKLAND )
`
`Matthew Schwartz, being duly sworn, deposes and says that on the 315' day of May,
`2006, he did serve copies of Applicant's Motion to Compel Opposer Spark Networks to
`Forthwith Comply with Discovery Requests, Affidavit of Matthew Schwartz, Brief in Support
`of Motion, and attached exhibits upon:
`
`Victor T. Fu, Esq.
`Richardson & Patel LLP
`
`10900 Wilshire Blvd., Suite 500
`Los Angeles, CA 90024
`
`by mailing same to said attorney in a sealed envelope, properly addressed, with postage
`prepaid thereon, and by depositing same in the United States Mail at Southfield, Michigan.
`
`Subscribed and sworn to before me
`this 315‘ day of May, 2006.
`
`Matthefi Schwartz '
`
`
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of trademark application Serial No. 78460372
`For the mark: "JewishAmen'canSingIes.com"
`Filed on: August 2, 2004
`Published in the Official Gazette on: July 5, 2005
`
`
`Spark Networks plc
`
`V.
`
`JewishAmericanSing|es.com, Inc.
`
`
`APPLICANT'S MOTION TO COMPEL OPPOSER SPARK NETWORKS TO FORTHWITH
`COMPLY WITH DISCOVERY REQUESTS AND AFFIDAVIT OF COMPLIANCE WITH
`REQUIREMENT FOR CONVENING CONFERENCE TO DISCUSS OUTSTANDING
`DISCOVERY REQUESTS AS THE SINE QUA NON FOR FILING OF MOTION
`
`NOW COMES Applicant, JewishAmericanSing|es.com, |nc., and for its Motion, says:
`
`1.
`
`That Applicant served the following discovery requests on or about the dates
`
`shown and pursuant to the court rules as reflected below:
`
`a.
`
`b.
`
`c.
`
`d.
`
`Interrogatories dated January 31, 2006 pursuant to Fed. R. Civ. P. 33
`(Exhibit 1);
`
`Supplemental Interrogatories pursuant to Fed R. Civ. P. 33 served on
`February 1, 2006 (Exhibit 2)
`(Amended as per agreement with
`opposefs counsel and served on May 12, 2006 — answers to said
`amended interrogatories not as yet received and hence not a part of
`this motion);
`
`January 31, 2006 Request for Production pursuant to Fed. R. Civ. P.
`34 (Exhibit 3);
`
`Request to Admit served on January 31, 2006 pursuant to Fed. R. Civ.
`P. 36 (Exhibit 4).
`
`2.
`
`On or about March 6, 2006, and without a request for any extension, Spark
`
`Networks served the following responses, none of which were in compliance with the court
`
`rules:
`
`

`
`a.
`
`b.
`
`c.
`
`d.
`
`"Responses" and Objections to the initial Interrogatories consisting
`solely of objections, all of which were unwarranted, and a copy of
`said response is attached hereto (Exhibit 5);
`
`Response to Supplemental lnterrogatory (Exhibit 6);
`
`"Responses and Objections to JewishAmericanSingles.com's Request
`for Production of Documents" which was in the form of an objection
`and furnished no indication that documents would be forthcoming
`
`(Exhibit 7);
`
`"Responses and Objections to" Request to Admit which again was
`merely boilerplate objections (Exhibit 8).
`
`3.
`
`Spark's objections were overly broad and not in conformity with the court
`
`rules and further, the objected to discovery requests,
`
`in large measure, mirrored Spark's
`
`discovery requests to applicant. The objections appeared merely to be a manifestation of
`
`an attempt by Spark to avoid discovery. Consequently, applicant was placed in a position
`
`where it did contact Spark's attorney seeking concurrence in an order or voluntary
`
`compliance or alternatively some discussion relative to Spark's discovery responses. At
`
`that time, Spark's attorney had refused to acknowledge that Spark's discovery was not in
`
`accord with the applicable court rules.
`
`4.
`
`That as a result of Spark's refusal, at that time, Applicant was required to file
`
`a motion and brief, a copy of which is attached hereto and labeled Exhibit 9, wherein
`
`Applicant cited numerous cases with regard to general objections which are designed for
`
`the purpose of delaying discovery. See, for example, those cases cited at pages 1 through
`
`3 of the brief previously filed. However, it is not necessary to restate the obvious.
`
`5.
`
`That this Honorable Court denied Applicant's motion without prejudice, and a
`
`copy of the Court's opinion and order is attached hereto and labeled Exhibit 10. Apparently
`
`the Court believed that Applicant had not complied with the threshold requirement of
`
`seeking a conference with the other side before filing a discovery motion. Notwithstanding
`
`the fact that the motion was denied without prejudice,
`
`the court did admonish Spark
`
`

`
`Networks‘ counsel as to the requirements of good faith discovery responses and particularly
`
`objections to interrogatories which merely mirrored interrogatories that were previously
`
`submitted by the objecting party.
`
`6.
`
`That the undersigned, in attempting to get a dialog open as per the Court's
`
`Order, wrote to Spark's attorney on April 5, 2006 in the hopes of resolving the discovery
`
`issues and if need be to set an agenda for the kind of meeting required by the Court. A
`
`copy of that e-mail is attached hereto along with Spark's attorney's response of April 14"‘
`
`acknowledging that a telephone conference had been scheduled between the parties.
`
`(Exhibits 11 and 12 respectively)
`
`7.
`
`The parties’ conference and agreement. That in fact the parties did confer
`
`at length, and as a result of that conference, it was agreed that Applicant would withdraw
`
`request to admit number 1 and that Spark would respond to all of the outstanding discovery
`
`by May 10”‘ with responsive answers to those interrogatories. The only objection that was
`
`contemplated would be preserved was with regard to information that was sought as to
`
`JDate (although no objections to supplying information about JDate have been made in the
`
`amended answers to interrogatories served by opposer on or about May 10"‘).
`
`It was also
`
`agreed that the response to the request for production would be supplemented and the
`
`necessary documents called for made available on or before May 10"‘. That agreement
`
`was confirmed by the undersigned by an e-mail of April 27"‘, a copy of which is attached
`
`hereto and labeled Exhibit 13.
`
`8.
`
`Spark's continued failure to comply with court rule and with agreement.
`
`That in fact the undersigned has now received Spark's promised amended responses and
`
`they neither comply with the court rules, this court's admonition in its earlier Opinion, nor the
`
`agreement between the parties as reflected in Exhibit 13. A copy of the amended
`
`responses to the answers to interrogatories are attached hereto and labeled Exhibit 14.
`
`

`
`The amended responses to the request to admit are attached hereto and labeled Exhibit 15
`
`and the amended responses to the request for production are attached hereto and labeled
`
`Exhibit 16.
`
`9.
`
`That for the reasons shown in the attached Brief, opposer's responses do not
`
`comply with the court rules nor do they comply with this Court's prior admonitions and given
`
`the status of the proceedings,
`
`it
`
`is necessary that the undersigned seek the Court's
`
`intervention to compel opposer to comply with the court rules, furnish responsive answers to
`
`discovery requests in good faith and to do so completely and responsively within five (5)
`
`days, well in advance of trial in this matter.
`
`WHEREFORE, for the reasons set forth in the attached Brief, JewishAmerican
`
`Singles does pray for the entry of an order:
`
`1.
`
`2.
`
`3.
`
`Striking Spark's objections to interrogatories, deeming objections waived
`and compelling complete and responsive answers to all outstanding
`interrogatories within five (5) days from the date hereof;
`
`Striking Spark's objections to the Request for Production and compelling
`Spark to furnish a complete response and to produce all documents called
`for at the premises of JewishAmericanSingles forthwith;
`
`Striking Spark's objections to designated requests to admit and deeming
`those requests to admit to be in fact admitted.
`
`Dated: MayQ/_, 2006
`
`Respectfully submitted,
`
`JewishAmericanSingles.com, Inc.
`
`
`
`

`
`AFFIDAVIT IN SUPPORT OF CONTENTION THAT MOVING
`PARTY SOUGHT CONCURRENCE FROM OBJECTING PARTY
`
`AND FURTHER IN FACT CONFERRED WITH OBJECTING PARTY
`AND REACHED AN AGREEMENT WITH OBJECTING PARTY
`
`STATE OF MICHIGAN )
`)SS.
`COUNTY OF OAKLAND )
`
`Matthew Schwartz, being duly sworn, deposes and says that he has read the Motion
`by him subscribed and the facts contained therein are true to the best of Affiant's
`knowledge, and states:
`
`Prior to filing his original Motion, he had attempted to resolve the discovery
`1.
`issues with Spark Networks‘ attorney but to no avail.
`
`That subsequent to the denial, without prejudice, of Affiant's initial motion,
`2.
`Affiant engaged in correspondence with Spark's attorney (copies of which are attached as
`exhibits).
`
`Affiant held a conference with Spark's attorney in an attempt to resolve
`3.
`discovery issues and did reach certain agreements.
`
`That a letter confirming said agreement was sent to Spark's attorney, a copy
`4.
`of which is attached as an exhibit, and Spark's attorney at no time suggested that said
`confirming letter did not accord with the parties’ agreement.
`
`That Spark has now served supplemental discovery responses which are not
`5.
`in accord with the parties‘ agreement, the court rules nor this Court's prior admonitions.
`
` Matthew chwartz
`
`Subscribed and sworn to before
`me this 3/41‘ day of May, 2006.
`
`
`
`

`
`TABLE OF CONTENTS
`
`TABLE OF CONTENTS ..................................................................................................... .. i
`
`INDEX OF AUTHORITIES ................................................................................................. .. ii
`
`I.
`
`INTRODUCTION ........................................................................................................ ..1
`
`II. DISCUSSION ............................................................................................................. ..2
`
`A.
`
`THE INTERROGATORIES ................................................................................. ..2
`
`B.
`
`SPARK'S PURPORTED RESPONSES TO REQUEST TO ADMIT ................. .. 12
`
`C.
`
`SPARK'S PURPORTED RESPONSES TO REQUEST FOR PRODUCTION
`
`15
`
`III. RELIEF REQUESTED ............................................................................................. .. 19
`
`

`
`INDEX OF AUTHORITIES
`
`Cases
`
`Burns v. Imagine Films Entertainment, 164 FRD 589 (VV.D. N.Y. 1996) ............................ ..1
`Centum 21 Real Estate Corp. v. Sandlin, 846 F. 2d 1175 (9"‘ Cir. 1988) ........................... ..8
`Chubb Integrated Sys. v. National Bank of Washington, 103 FRD 52 (D. D.C.
`1984) .......................................................................................................................... ..2
`Davis v. Fendler, 650 F. 2d 1154 (9"‘ Cir. 1981) ............................................................... ..5
`Eureka Fin. Corp. v. Hartford Accident & lndemniy Co., 136 FRD 179 (E.D.
`Cal. 1991) ............................................................................................................. ..2, 16
`Frisch's Restaurant v. Elby's Big Boy,
`lnc., 670 F. 2d 642 (6"‘ Cir.), cert.
`denied 459 U.S. 916 (1982) ......................................................................................... ..8
`Han v. Food & Nutrition Services, 580 F. Supp. 1564 (D. N.J. 1984) ............................... ..14
`
`Hoffman v. United Telecommunications lnc., 117 FRD 436 (USDC D. Kan.
`1987) .......................................................................................................................... ..5
`IBP, Inc. v. Mercantile Bank of Topeka, 179 FRD 316 (D. Kan. 1988) ............................. ..14
`In re Sweeten, 56 B.R. 675 (Bankr. E.D. Pa. 1986) ........................................................ ..14
`Kansas-Nebraska Natural Gas Co. v. Marathon Oil Co., 109 FRD 12 (D. Neb.
`1985) .................................................................................................................... ..2, 16
`Momah v. Albert Einstein Medical Center, 164 FRD 412 (E.D. Pa. 1996) .......................... ..1
`Obiaiulu V. cry of Rochester, 166 FRD 293 (\N.D. N.Y. 1996) .......................................... ..1
`Panara v. Hertz Penske Truck Leasing, 122 FRD 14 (E.D. Pa. 1988) ............................. ..12
`
`Peat Manrvick Mitchell & Co. v. West, 748 Fed. 2d 540 (1o"‘ Cir. 1984) ..................... ..2, 16
`Polaroid Corp. v. Polaroid Electronics Corg., 287 F. 2d 492 (2"“ Cir.), cert.
`denied 368 U.S. 820 (1961) ......................................................................................... ..8
`Puerto Rico Agueduct and Sewer Authorig v. Clow Co[g., 108 FRD 304
`(USDC D. Puerto Rico 1985) ....................................................................................... ..5
`Securities & Exchange Commission v. Elfindepan, 206 FRD 574
`(USDC
`M.D.N.C. 2002) ................................................................................................... ..3, 4, 5
`
`Statutes
`
`Fed. R. Civ. P. 33(b) ....................................................................................................... .. 2
`Fed. R. Civ. P. 33(d) ................................................................................................... .. 3, 4
`Fed. R. Civ. P. 36 ......................................................................................................... .. 12
`Fed. R. Civ. P. 36(a) ..................................................................................................... .. 14
`
`Other Authorities
`
`7 Moore's Federal Practice, 3d Ed., Chapter 34 at §34.13[2][a] ..................................... .. 16
`
`

`
`BRIEF IN SUPPORT OF MOTION
`
`I.
`
`INTRODUCTION
`
`The facts are basically as set forth in the Motion. Notwithstanding the fact that we
`
`had met with Mr. Fu (by phone) and notwithstanding his agreement to responsively answer
`
`interrogatories (Exhibit 13) and respond to other discovery requests, we have only seen
`
`purported responses which neither comply with the agreement nor with the court rules. All
`
`that has changed is that Spark's counsel now has "dumped" (apparently a term of art used
`
`by some courts) approximately 1000 pages of documents which are either non-responsive
`
`or cast a burden on the undersigned to try to find where the answer might lie, if at all. Other
`
`than that, Spark's counsel repeats the same sweeping and generic objections and only
`
`selectively responds to the discovery requests.
`
`ll. DISCUSSION
`
`A. THE INTERROGATORIES
`
`i. THE APPLICABLE LAW: SPARK'S GENERAL SHOTGUN OBJECTIONS
`
`Spark,
`
`in its "amended" answers to interrogatories,
`
`repeats its same "general
`
`objections". That general objection is incorporated into all of the "responses" and repeated.
`stating in a sweeping fashion, for example,
`that responding would be "burdensome",
`
`"violative of attorney-client privilege" or that the interrogatory is "irrelevant" and "overly
`
`broad". These kinds of sweeping objections are not appropriate. Generic objections are
`
`improper. See Obiajulu v. Cig of Rochester, 166 FRD 293, 295 (\N.D. N.Y. 1996). These
`
`kinds of objections do not provide the specificity required by the court rule. See Burns v.
`
`Imagine Films Entertainment, 164 F RD 589, 593 (W.D. N.Y. 1996) (an objection stating the
`
`interrogatory is overly broad, vague and unduly burdensome was not sufficiently specific);
`
`Momah v. Albert Einstein Medical Center, 164 FRD 412, 412 (E.D. Pa. 1996) (mere
`
`recitation of familiar litany that interrogatory is "overly broad, burdensome, oppressive, and
`
`1
`
`

`
`irrelevant" will not suffice).
`
`Indeed,
`
`if counsel truly claims that supplying the requested
`
`information would cause a hardship, just the statement of that conclusion is not sufficient.
`
`See Chubb Integrated Sys. v. National Bank of Washington, 103 FRD 52, 59-60 (D. D.C.
`
`1984), holding that an objecting party must submit affidavits or offer evidence that reveals
`
`the nature of the burden imposed by allegedly overly broad interrogatories.
`
`Spark Networks continues to include in its objections the attorney-client privilege but
`
`forgets that Rule 26(B)(5) requires that when claiming a privilege, the privilege must be
`
`asserted expressly "and shall describe the nature of the documents, communications, or
`
`things not produced or disclosed in a manner that without revealing infonnation itself
`
`privileged or protected, will enable other parties to assess the applicability of the privilege or
`
`protection."
`
`If not made in the proper fonn, that objection is waived. Kansas—Nebraska
`
`Natural Gas Co. v. Marathon Oil Co., 109 FRD 12, 23-24 (D. Neb. 1985); Eureka Fin. Corp.
`
`v. Hartford Accident & lndemnig Co., 136 FRD 179, 182-185 (E.D. Cal. 1991); Peat,
`
`ManNick Mitchell & Co. V. West, 748 Fed. 2d 540, 541-542 (10th Cir. 1984).
`
`Clearly the applicable court rule [Fed. R. Civ. P. 33(b)] requires the objecting party
`
`(1) to state the reasons for the objection and answer the interrogatory to the extent it is not
`
`objectionable and if objecting (4) to state the objection with specificity. The rule states
`
`that any ground not stated in a timely objection is waived and the case law, above referred
`
`to, indicates that a generic and overly broad objection does not suffice as an objection.
`
`ii. SPARK'S REFERENCES T0 DOCUMENTS OUTSIDE THE RECORD
`
`in addition to the boilerplate generic objections, a paragraph is added to the answers
`
`to interrogatories 4, 5, 6, 7, 10 and 12 which reads subject to and without waiving the
`
`foregoing objections, responding party responds as follows: responding party shall
`
`provide documents containing the responsive information concurrently with this
`
`supplemental response.
`
`Indeed,
`
`in lieu of answering the interrogatory, Spark has sent
`
`
`
`

`
`approximately 1000 pages of documents without referencing where the answer to a specific
`
`interrogatory might be found.
`
`It seems that Spark's strategy is based on a belief that the best place to hide a
`
`blueberry is in a blueberry patch; however, when dealing with Spark it appears that
`
`even when you carefully go through the blueberry patch you will find that in fact even
`
`the patch contains no blueberries. The bulk of the material includes numerous copies of
`
`home pages over an extended period of
`
`time basically extolling the virtues of
`
`AmericanSing|es.com. Several pages of the documents relate to the registering of the
`
`service mark and the assignment of the trademark from MatchNet plc to Spark. We are
`
`given what appears to be a prospectus for the sale of stock or an SEC filing. None of the
`
`documents breaks out the specific information requested. We would challenge spark as to
`
`each interrogatory to advise us exactly where in the documents provided the responsive
`
`information may be found. Under separate cover we will be sending a copy of these
`
`documents to the court.
`
`An answer to an interrogatory must be complete in itself; Spark cannot merely point
`
`to records outside of the answers to interrogatories to satisfy its obligation to specifically
`
`answer the interrogatories. This is an impermissible attempt at an end run around the
`
`restrictions imposed by Rule 33(d). See Securities & Exchange Commission v. Elfindegan,
`
`206 FRD 574, 578 (USDC M.D.N.C. 2002)
`
`Perhaps Spark's counsel intended, without suggesting, to employ Fed. R. Civ. P.
`
`33(d) which gives the option to the interrogated party to produce business records where
`
`the answer may "be derived or ascertained from the business records of the party
`
`upon whom the interrogatory has been served - - - and the burden of deriving or
`
`ascertaining the answer is substantially same for the party serving the interrogatory
`
`as to the party served ~~-".
`
`If Spark's relies upon Fed. R. Civ. P. 33(d), it should be made
`
`

`
`aware that under that rule, the records are to be specified "in sufficient detail to permit
`
`the interrogating party to locate and to identify, as rightly as can the party served, the
`
`records from which the answer may be ascertained." That rule, assuming that Spark is
`
`relying on the same, is inapplicable and to the extent that it is,
`
`it has not been complied
`
`with.
`
`In Elfindepan, supra, the court spoke in terms of certain threshold requirements under
`
`Rule 33(d) commencing at 576:
`
`The producing party must satisfy a number of factors in order to meet its
`justification burden. First it must show that a review of the documents will
`actually reveal answers to the interrogatories.
`(Citing authority)
`In other
`words, the producing party must show that the named documents contain all
`of the information requested by the interrogatories.
`(Citing case) Crucial to
`this inquiry is that the producing party have adequately and precisely
`specified for each interrogatory, the actual documents where information will
`be found.
`(Citing authority) Document dumps or vague references to
`documents do not suffice (citing cases). Depending on the number of
`documents and the number of interrogatories,
`indices may be required
`(citing case).
`
`- - - - Not one specific document is identified for any specific interrogatory.
`This attempted use of Rule 33(d) is more in the nature of a document dump
`than a specification of documents. The action does not comply with the final
`sentence of Rule 33(d) which requires specificity. Nor has plaintiff shown
`the court that the documents, in fact, contain all of the information sought by
`the interrogatories, except by simply, flatly declaring such.
`
`A second burden imposed on the producing party is to justify the actual
`shifting of the perusal burden from it to the requesting party. Rule 33(d) by
`its nature, of course contemplates shifting the burden, but
`its text also
`explicitly establishes the minimum threshold to be that "the burden of
`deriving or ascertaining the answer [must be] substantially the same for the
`party serving the interrogatory as for the party served ---»" Fed. R. Civ. P.
`33(d) Plaintiff has failed to show that it would be no more burdensome for
`defendants to go through voluminous documents to pull out answers than for
`plaintiff.
`
`Spark has not pointed to portions of the documents that "reveal answers to the
`
`interrogatories" and has not provided indices. Nor has Spark even attempted to justify "the
`
`actual shifting of the perusal burden". The court in Elfindepan, supra, then went on to
`
`suggest that Rule 33(d) is totally inapplicable to interrogatories that deal with mixtures of
`
`

`
`contention interrogatories and requests for statements of fact and concluded at 577 that
`
`with regard to contention interrogatories that a party's reliance on Rule 33(d) is misplaced.
`
`Finally, the court in Elfindepan, sum, determined that the documents sought to be
`
`used were not
`
`in effect "business records". One would question whether or not a
`
`prospectus for stockholders or copies of home pages are in fact business records.
`
`It may
`
`be that some of the information contained in such a prospectus may be gleaned from
`
`business records but they are not in fact business records as they are not documents
`
`necessary for the conduct of the ordinary business.
`
`lndeed, documents filed with a
`
`governmental agency are not business records. So, for example,
`
`in Hoffman v. United
`
`
`Telecommunications lnc., 117 FRD 436 (USDC D. Kan. 1987) documents submitted to the
`
`EEOC were not considered business records. See also, with regard to relying on records
`
`that must be filed with the corporation commission or the SEC, see Davis v. Fendler, 650 F.
`
`2d 1154 (9"‘ Cir. 1981).
`
`In order for the rule to apply, the specificity requirement must be satisfied and the
`
`burdens with regard to reviewing the records and getting the information must be
`
`"substantially the same" for both parties. See Puerto Rico Agueduct and Sewer Authority v.
`
`Clow Corp, 108 FRD 304 (USDC D. Puerto Rico 1985) at 306. Likewise if information can
`
`be found in the interrogated party's records but the burden of researching an answer is
`
`heavier on the party propounding the records,
`
`then the business records rule is
`
`inapplicable. Puerto Rico Agueduct, supra, at 307, wherein the court goes on to explain
`
`while answering interrogatories often requires the interrogated party to refer to
`
`written documents, particularly where the party is a corporate entity, referring to a
`
`document in order to answer an interrogatory is not the kind of burden contemplated
`
`by the rule. The court went on to note that the nature of the business records and the
`
`familiarity of the interrogated party with its documents is to be considered as are the
`
`

`
`economic factors (obviously Spark has its own people who created their records and who
`
`can cull out the necessary information without Applicant going to the additional expense).
`
`The decision in that case turned on the interrogated party's familiarity with its own business
`
`records and hence the interrogated party could not impose on the interrogated party a mass
`
`of records as to which research is feasible only for one familiar with the records.
`
`Consequently, interrogatories 4, 5, 6, 7, 10 and 12 have in fact not been answered and one
`
`cannot read those particular interrogatories along with the purported answers and find that
`
`in fact any responsive information has been given notwithstanding Spark's counsel's
`
`undertaking following our telephone conference.
`
`iii. OPPOSER'S CONTINUED OBJECTIONS TO DISCOVERY REQUESTS THAT
`ARE IN FACT IDENTICAL OR VIRTUALLY IDENTICAL TO DISCOVERY
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`REQUESTS THAT IT HAD PREVIOUSLY SUBMITTED TO APPLICANT
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`This court in its previous Opinion (Exhibit 10), apparently the law of this case, stated
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`at footnote 3 that the opposer's discovery responses consisted entirely of objections and
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`that many of those objections were with reference to interrogatories which basically
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`mirrored the requests that had previously been made by opposer in its discovery requests
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`directed to applicant. The undersigned, in his letter of April 5"‘ (Exhibit 11) the language
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`employed by the Court in its opinion and directed opposer's counsel to those interrogatories
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`which had been objected to and which in fact mirrored opposer's interrogatories. We
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`pointed out that basically applicant's interrogatories 4, 5, 6, 7, 10 and 12 essentially track
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`opposer's interrogatories numbers 4, 5, 6, 7, 8 and 15. Apparently counsel takes no pride
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`in his own authorship but still continues to make the same general objection to these very
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`interrogatories merely adding inapplicable references to documents which do not answer
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`the questions. For example, applicant's interrogatory number 10 asks for very specific
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`information about opposer's electronic data and passwords, etc. This is an interrogatory
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`identical to opposer's interrogatory number 15.
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`Instead of answering, however, opposer
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`raises the same objections that it had previously made (which this Court suggested were
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`improper under the circumstances) and attempts to avoid t his Court's instructions by
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`referencing numerous documents which are not a part of the answers to interrogatories and
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`which in fact do not contain the information called for. Basically, the same is true with
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`regard to interrogatories, 4, 5, 6, 7, and 12 submitted by applicant and opposer should be
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`required to forthwith responsively answer the same.
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`iv.
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`VARIOUS OBJECTIONS WHICH MAKE MANIFEST SPARK'S LACK OF
`GOOD FAITH IN RESPONDING
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`It should initially be noted that in framing interrogatories, the term concerning was
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`employed and we are now told that that is an overly broad and ambiguous term. However,
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`the term concerning was defined by Spark in their very interrogatories as meaning
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`"relating to, referring to, describing, evidencing or constituting".
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`In applicant's
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`interrogatories, all of the definitions employed by Spark were incorporated and now
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`apparently Spark does not understand the word it employed nor its definition. Because
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`Spark does not understand what the word means as it defined the term it refuses to furnish
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`us information as to any facts that are evidence of or constitute support for Spark's very
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`allegations in their notice of opposition.
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`In Spark's notice of opposition, Spark alleged certain conclusions as to likelihood] of
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`confusion, number of its members and monies expended in support of identifying its chosen
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`name with its product. Applicant sought, through interrogatories, to obtain Spark's evidence
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`in support of those allegations by employing the term concerning as defined by Spark.
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`lnterrogatory number 8 submitted by applicant asked applicant
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`to describe the
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`circumstances (evidence, etc.) which related to "actual customer confusion" or ''likelihood
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`of confusion" stemming from applicant's use of a mark incorporating the phrase
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`"AmericanSingles".
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`In response to that lnterrogatory, we are not told by Spark that they
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`have no knowledge of "actual customer confusion" nor are we told of any facts that might
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`7
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`support their claim of "likelihood of confusion".
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`Instead, we are treated to a lecture to the
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`effect
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`that
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`the only issue is ''likelihood of confusion" and hence no answer will be
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`forthcoming with regard to knowledge of "actual confusion".
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`It had been this writer's understanding that the office of an answer to interrogatory is
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`to obtain the facts and evidence which might be available to the opposing party. We are
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`entitled to know what evidence opposer has in support of its conclusion relative to
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`likelihood of confusion and one of the items of evidence which may be considered is
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`whether in fact
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`there has been actual confusion.
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`See Polaroid Corp. v. Polaroid
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`Electronics Corp., 287 F. 2d 492, 495 (2"‘’' Cir.), cert. denied 368 U.S. 820 (1961); Cir
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`21 Real Estate Corp. v. Sandlin, 846 F. 2d 1175, 1179 (9"‘ Cir. 1988); Frisch's Restaurant v.
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`Elby's Big Boy, Inc., 670 F. 2d 642 (6"' Cir.), cert. denied 459 U.S. 916 (1982). We are
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`entitled to know all of the facts that relate to actual customer confusion that is within the
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`knowledge of opposer and which may be used at the time of trial.
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`If opposer has no
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`information as to actual customer confusion,
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`they should merely so state rather than
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`avoiding the question by in effect raising a relevancy objection.
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`Again, opposer's opposition in its allegations makes reference to the number of its
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`members and the likelihood of their confusion.
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`In interrogatory number 11, we specifically
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`ask how many of their members are in fact Jewish and how many are American.
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`In
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`attempting to avoid answering, we are told that responding party (Spark) does not require
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`its members to provide information concerning their religious affiliation or national origin and
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`several members do not voluntarily provide such information. While we recognize that
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`Mr. Fu, in signing the answers to interrogatories, may not have personal knowledge, in fact
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`those people applying for membership in Americansingles must fill out an application
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`(Exhibit 17) which calls for the aforereferenced information and one cannot log on without
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`giving infonnation as to nationality.
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`Indeed, from the attachments to the aforereferenced
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`application (Exhibit 17), the person applying is given a number of choices but we can
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`assure Mr. Fu that from our attempts, one cannot have an application accepted without
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`listing one's nationality. Of course, religious affiliation is called for in the application but
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`opposer is correct probably that "se