BULKY DOCUMENTS
`(exceeds 300 pages)
`
`Proceeding] Serial No: 91 16715 1
`
`Filed: O9-28-2007
`
`Title: Opposer’s First Notice of Reliance
`
`Part 1 of 6
`
`
`
`Processed by Duane Foster
`
`
`(exceeds 300 pages)
`
`Proceeding] Serial No: 91 16715 1
`
`Filed: O9-28-2007
`
`Title: Opposer’s First Notice of Reliance
`
`Part 1 of 6
`
`
`
`Processed by Duane Foster
`
`
`
`KILPATRICK
`® STOCKTON LLP
`
`Att°meY5 at Law
`
`September 28>
`
`VIA EXPRESS MAIL
`
`Commissioner for Trademarks
`
`U.S. Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, Virginia 22313-1451
`
`Suite 2800 1100 Peachtree St.
`Atlanta GA 30309-4530
`I404 815 6500 f404 815 6555
`www.KilpatrickStockton.com
`
`direct dial 404 532 6937
`direct fax 404 541 3120
`MBaratta@KilpatrickStockton.com
`
`Re:
`
`Flowers Bakeries Brands, Inc. v. Independent Marketing Alliance LP
`Opposition No.:
`91167151
`Our Ref. No.:
`FI001/321679
`
`Dear Sir or Madam:
`
`Enclosed please find Opp0ser’s First Notice of Reliance in connection with the
`referenced opposition.
`
`Please acknowledge receipt of the enclosures by initialing and dating the enclosed
`postcard and returning it to me.
`
`Thank you for your assistance.
`
` R
`
`Oliyia Maria Baratta
`
`OMB
`Enclosures
`
`cc:
`
`Holland C. Kirbo, Esq.
`Theodore H. Davis Jr., Esq.
`
`A
`A
`N
`A
`llllllllllllllllllllllllllllllllllllllllllllllllll
`09-28-2007
`
`_
`U5-Pa‘°“‘“"'°'°"M Mamcm D"
`
`#72
`
`ATLANTA AUGUSTA CHARLOTTE LONDON NEWVORK RALEIGH STOCKHOLM WASHINGTON WINSTON-SALEM
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`FLOWERS BAKERIES BRANDS, INC.,
`
`Opposer,
`V.
`INDEPENDENT MARKETING
`
`ALLIANCE LP,
`
`Applicant.
`
`)
`
`3
`;
`3
`
`)
`
`i
`
`Opposition No. 91 167151
`Serial No. 78/432,642
`Published 9/20/2005
`
`OPPOSER’S FIRST NOTICE OF RELIANCE
`
`Pursuant to Trademark Rules of Practice 2.l22(d)(2) and 2.l22(e), Opposer Flowers
`
`Bakeries Brands, Inc. gives notice to Applicant Independent Marketing Alliance LP that it
`
`offers and intends to rely upon the following evidence at trial:
`
`A.
`
`Certified copies of the following registrations, which are owned by Opposer:
`
`1.
`
`Registration No. 1,991,258, registered August 6, 1996, of the mark
`
`COBBLESTONE MILL for “bakery products, namely bread, buns and
`
`rolls’’ in International Class 30 (Exhibit 1).
`
`2.
`
`Registration No. 2,762,164, registered September 9, 2003, of the mark
`
`depicted below
`
`llgsrcim
`
`
`
`.
`',Z.—-
`‘
`.\‘_~ .,‘.
`
`
`
`for “bakery products,” in International Class 30 (Exhibit 2).
`
`US2000 10343707. I
`
`
`
`3.
`
`Registration No. 1,326,230, registered on March 19, 1985, of the mark
`
`depicted below
`
`
`
`for “bakery products — namely, bread, buns and rolls,’’ in International
`
`Class 30 (Exhibit 3).
`
`True and correct copies and/or printouts of the following discovery responses:
`
`1.
`
`Applicant’s Answers to Opposer’s First Set of Interrogatories (Exhibit
`
`4);
`
`2.
`
`Applicant’s Response to Opposer’s First Requests for Production of
`
`Documents (Exhibit 5).
`
`True and correct copies of the following discovery depositions and exhibits
`
`thereto:
`
`1.
`
`Janice Anderson, Vice President of Marketing of Opposer Flowers
`
`Bakeries Brands, Inc. (Exhibit 6);
`
`2.
`
`Bob Fontana, Director of Marketing and General Merchandising of
`
`Applicant Independent Marketing Alliance LP (Exhibit 7); and
`
`3.
`
`Robert D. Planck, President of Applicant Independent Marketing
`
`Alliance LP (Exhibit 8).
`
`True and correct printouts from Opposer’s web site at
`
`www.cobblestonemill.com (Exhibit 9).
`
`US2000 10343707. I
`
`
`
`A true and correct printout showing the Network Solutions WHOIS record for
`
`the domain www.cobblestonemi1l.com, relevant to show ownership of the
`
`domain by Opposer‘s parent company (Exhibit 10).
`
`True and correct copies of the following reports by Information Resources
`
`Inc.:
`
`1.
`
`Flowers Industries Monthly Fresh Breads Through February 8, 1998
`
`(Exhibit 1 1); and
`
`2.
`
`Flowers Industries Monthly Fresh Breads and Rolls Update Through
`
`March 7, 1999 (Exhibit 12).
`
`True and correct copies of the following reports by Packaged Facts:
`
`1.
`
`2.
`
`The Bread Market, dated March 1996 (Exhibit 13); and
`
`The U.S. Bread Market, dated May 1998 (Exhibit 14).
`
`A true and correct copy of Flowers Bakery Division FY’86 Marketing Plan-
`
`Review (Exhibit 15).
`
`A true and correct copy of Flowers Bakery Division marketing plan and
`
`budget for Fiscal Year 1986, including Brand Strategy for Fiscal Year 1987
`
`(Exhibit 16).
`
`A true and correct copy of Flowers Bakeries Inc. Market Audit, dated June 28,
`
`1999 (Exhibit 17).
`
`A true and correct copy of Cobblestone Mill Package Design Assessment,
`
`dated August 6, 1999 (Exhibit 18).
`
`A true and correct copy of Flowers Bakeries Marketing Review 4th Quarter,
`
`FY 2002, dated January 14, 2003 (Exhibit 19).
`3
`
`US2000 10343707.]
`
`
`
`A true and correct copy of a March 26, 2002 letter from Life Packaging &
`
`Promotions Creative, Inc. to Greg Jenkins of Flowers Industries regarding and
`
`enclosing artwork for COBBLESTONE MILL packaging (Exhibit 20).
`
`True and correct copies of advertisements and promotional materials showing
`
`use of the COBBLESTONE MILL mark (Exhibit 21).
`
`A true and correct copy of a photograph displaying COBBLESTONE MILL
`
`bagels in packaging featuring the COBBLESTONE MILL mark (Exhibit 22).
`
`A true and correct copy of Independent Marketing Al1iance’s Merchandising
`
`Policy (Exhibit 23).
`
`A true and correct copy of the April 13, 2004 email from Bartt Thompson to
`
`“Doug” regarding search for “Cobblestone Corner” for deli items “similar to
`
`Boars Head Brand” (Exhibit 24).
`
`A true and correct copy of the April 15, 2004 email exchange between Bob
`
`Planck, Rob Ahrensdorf, and Sandy Klein regarding the preliminary search for
`
`“Cobblestone” (Exhibit 25).
`
`A true and correct copy of the April 21, 2004 Memorandum from Bartt
`
`Thompson to Bob Planck regarding the availability of the mark “Cobble
`
`Stone” or “Cobblestone” (Exhibit 26).
`
`True and correct copies of advertising proofs for COBBLESTONE MARKET
`
`products, including order forms for promotional items (Exhibit 27).
`
`A true and correct copy of the November 2, 2004 email from Bob Planck to
`
`Bartt Thompson regarding the “potential infringement” by “Cobblestone Gas
`
`Station/Car Wash” (Exhibit 28).
`4
`
`US2000 10343707. 1
`
`
`
`A true and correct copy of the November 2, 2004 email from Bob Fontana to
`
`Bartt Thompson regarding the “potential conflict” between the “Cobblestone
`
`Market Brand” and “Cobblestone Gas Station/Car Wash” (Exhibit 29).
`
`A true and correct copy of the August 1, 2005 email exchange between Bob
`
`Fontana and Bartt Thompson confirming that “sandwiches” should be listed in
`
`the description of goods covered by Serial No. 78/432642 (Exhibit 30).
`
`A true and correct copy of the Examiner’s Amendment entered August 2, 2005
`
`amending the description of goods covered by Serial No. 78/432642 to include
`
`“Vegetables” in Class 29 and “sandwiches” in Class 30 (Exhibit 31).
`
`This A3 day of September, 2007.
`
`Respectfully submitted,
`
`
`
`Theodore H. Davis Jr.
`
`Olivia Maria Baratta
`
`Alicia Grahn Jones
`
`KILPATRICK STOCKTON LLP
`
`1100 Peachtree Street, Suite 2800
`Atlanta, Georgia 30309-4530
`Telephone: (404) 815-6500
`Facsimile: (404) 815-6555
`
`Attorneys for Opposer
`
`US2000 l0343707.l
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Opposition No. 91167151
`
`Serial No. 78/432,642
`
`Published 9/20/2005
`
`) )
`
`)
`)
`)
`)
`)
`
`) )
`
`) )
`
`FLOWERS BAKERIES BRANDS, INC.,
`
`Opposer,
`
`v.
`
`INDEPENDENT MARKETING
`ALLIANCE LP,
`
`Applicant.
`
`CERTIFICATE OF SERVICE
`
`This is to certify that on this date, the foregoing document was served upon Applicant
`
`by depositing a copy thereof in the United States mail as first class mail, postage pre-paid,
`
`addressed as follows:
`
`Martyn B. Hill, Esq.
`Pagel, Davis & Hill, P.C.
`1415 Louisiana, 22nd Floor
`
`Houston, Texas 77002
`
`~tL
`,
`This the E day of September, 20
`
`name.
`
`Olivia Maria Baratta
`
`US2000 10343 707.1
`
`
`
`Exhibit 1
`
`
`
`
`
`X214,
`
`UNITED STATES DEPARTMENT OF COMMERCE
`
`‘
`
`United States Patent and Trademark Office
`
`n
`
`THE ATTACHED U.S. TRADEMARK REGISTRATION 1,991,258 IS
`
`September 18, 2007
`
`CERTIFIED TO BE A TRUE COPY WHICH IS IN FULL FORCE AND
`
`EFFECT WITH NOTATIONS OF ALL STATUTORY ACTIONS TAKEN
`
`THEREON AS DISCLOSED BY THE RECORDS OF THE UNITED STATES
`
`PATENT AND TRADEMARK OFFICE.
`
`REGISTERED FOR A TERM OF 10 YEARS FROM August 06, 1996
`
`1st RENEWAL FOR A TERM OF 10 YEARS FROM August 06, 2006
`
`SECTION 8 & 15
`
`SAID RECORDS SHOW TITLE TO BE IN:
`
`FLOWERS BAKERIES BRANDS, INC
`
`A DE CORP
`
`By Authority of the
`
`Under Secretary of Commerce for Intellectual Property
`and Director of the United States Patent and Trademark Office
`
`P. R. GRANT
`
`Certifying Officer
`
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`Int-. Cl.: 30
`
`Prior U.S. CL: 46
`
`Reg. No. 1,991,258
`United. States Patent and Trademark Office
`Registered Aug. 6,1996
`
`
`TRADEMARK
`PRINCIPAL REGISTER
`
`COBBLESTONE MILL
`
`FLOWERS FAMILY BAKERIES, INC. (DELA-
`WARE CORPORATION)
`W1LMINGTON.TRUST CENTER
`1100 NORTI-("MARKET SQUARE, SUITE 780
`WILMINGTON. DE 19801
`
`FIRST USE 3-194933;
`8-19-1983.
`OWNER OF U.S. REG. NOS. 1,326,230, 1,836,321
`AND OTHERS.
`
`IN COMMERCE
`
`NAMELY
`PRODUCTS’
`BAKERY
`FOR:
`BREAD, BUNS AND ROLLS, _lN CLASS 30 (U.S.
`CL. .46).
`
`SER. NO. 74—7l2,640, FILED 8-8—l995.
`
`JULIA S. SHIELDS, EXAMINING ATTORNEY
`
`
`
`
`
`Exhibit 2
`
`
`
` 7087318
`
`«A 7
`
`‘
`
`I
`
`uwamlnnogwuolm
`
`l?Rg3;@EEEl_3§.&
`
`‘*
`
`UNITED STATES DEPARTMENT OF COMMERCE
`
`United States Patent and Trademark Office
`
`September 18, 2007
`
`
`
`THE ATTACHED U.S. TRADEMARK REGISTRATION 2, 762,164 IS
`
`CERTIFIED TO BE A TRUE COPY WHICH IS IN FULL FORCE AND
`
`EFFECT WITH NOTATIONS OF ALL STATUTORY ACTIONS TAKEN
`
`THEREON AS DISCLOSED BY THE RECORDS OF THE UNITED STATES
`
`PATENT AND TRADEMARK OFFICE.
`
`REGISTERED FOR A TERM OF 10 YEARS FROM September 09, 2003
`
`SAID RECORDS SHOW TITLE TO BE
`
`IN:
`
`FLOWERS BAKERIES BRANDS, INC.
`
`A SC CORP
`
`By Authority of the
`
`Under Secretary of Commerce for Intellectual Property
`A and Director of the United States Patent and Trademark Office
`
`/%/%-.%<
`
`P. R. GRANT
`
`Certifying Officer
`
`
`
`Int. Cl.: 30
`
`Prior U.S. Cl.: 46
`
`United States Patent and Trademark Office
`
`Reg. No. 2,762,164
`Registered Sep. 9, 2003
`
`TRADEMARK
`PRINCIPAL REGISTER
`
`
` /« SIXISIE’
`
`
`9 JJG’Eg§
`%,»—-----—'--s
`I CLASSIC known I
`
`FLOWERS BAKERIES BRANDS,
`CAROLINA CORPORATION)
`1925 FDOWERS CIRCLE
`THOMASVILLE, GA 31757
`
`INC.
`
`(SOUTH
`
`FOR: BAKERY PRODUCTS, IN CLASS 30 (us. CL.
`45).
`
`FIRST USE 4-0-2000; IN COMMERCE 4-0-2000.
`
`OWNER OF U.S. REG. NOS. 1,326,230, 1,991,258,
`AND OTHERS.
`
`NO CLAIM IS MADE TO THE EXCLUSIVE
`RIGHT TO USE "QUALITY BREADS, A FAMILY
`OF BAKERS SINCE 1919, SAN FRANCISCO SOUR-
`DOUGH" AND "RECIPE", APART FROM THE
`MARK AS SHOWN.
`
`THE LINING IS A FEATURE OF THE MARK
`AND DOES NOT INDICATE CODOR.
`
`SN 76-039,444, FILED 5-2-2000.
`
`KARAN CHHINA, EXAMINING ATTORNEY
`
`
`
`Exhibit 3
`
`
`
`7087818
`
`
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`UNITED STATES DEPARTMENT OF COMMERCE
`
`United States Patent and Trademark Office
`
`
`
`September 18, 2007
`
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`
`THE ATTACHED U.S. TRADEMARK REGISTRATION 1,326,230 IS
`
`CERTIFIED TO BE A TRUE COPY WHICH IS IN FULL FORCE AND
`
`EFFECT WITH NOTATIONS OF ALL STATUTORY ACTIONS TAKEN
`
`THEREON AS DISCLOSED BY THE RECORDS OF THE UNITED STATES
`
`PATENT AND TRADEMARK OFFICE.
`
`.
`
`5<!<_"3<3t!S(!-)<B<34!-3433621313-S431.‘-__
`
`REGISTERED FOR A TERM OF 20 YEARS FROM March 19, 1985
`
`1 st RENEWAL FOR A TERM OF 10 YEARS FROM March 19, 2005
`
`SECTION 8 & 15
`
`SAID RECORDS SHOW TITLE TO BE IN:
`
`FLOWERS BAKERIES BRANDS, INC.
`
`A DE CORP
`
`By Authority of the
`
`Under Secretary of Commerce for Intellectual Property
`and Director of the United States Patent and Trademark Office
`
`P. R. GRANT
`
`Certifying Officer
`
`
`
`
`
`
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`
`Int. Cl.: 30
`
`Prior U.S. Cl.: 46
`
`Reg. No. 1,326,230
`Registered Mar. 19, 1985
`United States Patent and Trademark Office
`
`
`TRADEMARK
`Principal Register
`
`
`
`Flowers Industries, Inc. (Georgia corporation)
`P.O. Box I338
`U.S. Hwy. 19 S.
`Thomasville, Ga. 31792
`
`PRODUC'l‘S—NAMELY, '
`BAKERY
`For:
`BREAD, BUNS AND ROLLS. in CLASS 30 (U.S.
`Cl. 46).
`First use Aug. 19, 1983;
`1983.
`Owner of U.S. Reg. No. 1,145,490.
`The lining and/or stippling shown in the mark on
`the drawing is a feature of the mark and does not
`indicate color.
`
`in commerce Aug. 19.
`
`Ser. No. 442,931, filed Sep. 8, 1983.
`
`LINDA J. SWIFI‘, Examining Attorney
`
`
`
`Exhibit 4
`
`
`
`Fen (is 2003 9:55am
`
`r'flGEL,DFlVIS s. HILL
`
`L
`—
`73-951 oesa
`
`P‘
`
`2
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRiADEMARK TRIAL AND APPEAL BOARD
`FLOWERS BAKERIES BRANDS lNC.,
`)
`Opposer,
`))
`v.
`))
`INDEPENDENT MARKETING
`))
`ALLIANCE LP,
`)
`
`Opposition No. 91167151
`Serial No. 78/432,642
`Published 9/20/2005
`
`i
`
`Applicant.
`
`))
`2
`APPLICANAT’S ANSWERS TO 0PPOSER’S
`F|RST5SET OF INTERROGATORIES
`
`Applicant Distribution Marketing Services, L.P., flkla Independent Marketing
`
`Alliance. LP (“Applicant”) answers to Opposer’s First Set of lnterrogatories in the above
`
`and styled opposition as follows:
`‘
`ANSWERS TO INTERROGATORIES
`
`adoption,
`selection.
`identify each Person involved in Applicant's
`1.
`clearance, or first use of the Opposed Mark, and describe each such Person's
`knowledge thereof.
`
`ANSWER
`
`Robert Fontana
`f
`Bob Planck
`Independent Marketing Alliance
`clo Pagel, Davis 8. Hill,’ P.C.
`
`Rob Ahrensdorf
`Rob Goluba
`Ed Sanford
`Ceil Enault
`
`Phil Morgan
`Stephen Krefft
`:
`Brent Cady
`clo Pagel, Davis 8. Hill; P.C.
`All are employees of independent Marketing Alliance Member Companies
`and representative of those companies to the Marketing Advisory Council
`
`
`
`Feb ()9 2006 9:55HM
`
`rHGEL,DFiVIS 2. HILL
`
`743-951-0332
`
`of Independent Marketing Alliance.
`
`Sandy Klein
`Barb Walker
`
`Newhall Klein, lnc.
`
`Bartt G. Thompson
`Pagel, Davis 8. Hill, Rd.
`
`Describe the procedure by which Applicant selected the Opposed Mark,
`2.
`including all steps taken by Applicant to determine whether the Opposed Mark was
`available for use before filing Application Serial No. 78/432,642.
`
`ANSWER
`
`Responsive documenjts are being produced which demonstrate the
`procedures utilized to consider various Marks including the Opposed Marks, and
`efforts to avoid use of any njark likely to cause confusion. A trademark search
`was conducted through Independent Marketing Alliance ad agency Newhall Klein,
`Inc., and recommendations were based on the review of the search.
`
`List each separate product on or in connection with which Applicant is
`3.
`using or intends to use the Opposed Mark.
`
`ANSWER
`
`Foodservice Pack Sizes of Deli Meats, Fooclservice Pack Sizes of Cheeses,
`Food Service Pack Sizes of Pickles, Foodservice Pack Sizes of condiments,
`Prepared Salads, grab and go chips and Soups Also, see Application and other
`documents being produced by Applicant, including promotional materials related
`to same.
`
`Describe the typical or target customer to whom Applicant intends to offer
`4.
`or is offering its goods under the Opposed Mark.
`
`ANSWER
`
`Regarding customer tygpes, our client is not in the bread business and has
`no intention of entering the bread business. Our client focuses on foodservice
`with sales to the hospitality ifindustry, not retailers like grocery stores.
`It is not
`intended and would be highfly unlikely for a consumer to find COBBLESTOINE
`MARKET branded productajf on grocery store aisles or in "coffin" cases.
`However, some grocery stores now have foodserviceldeli operations within their
`
`
`
`‘Feb 09 2008 9:55am
`
`r'FlGEL,DFlVIS 9. HILL
`
`7.3_9s1—oss2
`
`stores. Also, foodserviceldeli operations may display this brandto enhance their
`operations.
`
`Our client sells Deli Meats, Cheeses, Pickles, Prepared Salads, grab and go
`chips and Soups under the COBBLESTONE MARKET brand. There is no intention
`to sell sandwiches under this brand, but the sandwich may include branded Deli
`Meats. Cheeses and Pickles as components of such a sandwich.
`
`Identify the geographic region where Applicant or its distributors. agents
`5.
`or sales representatives has sojld, offered for sale, or intends to offer for sale its goods
`that currently bear the Opposed§ Mark.
`
`ANSWER
`
`it
`territory.
`Geographically, currerit sales involve a large geographical
`would not be practical to limit sales to any particular locality, as our client Intends
`on selling or at least having the right to sell throughout the entire United States.
`
`radio, newspapers,
`television,
`(i.e.
`Describe through what media
`6.
`magazines. brochures, Internet; etc.) Applicant has advertised or intends to advertise or
`promote products underthe Opposed Mark.
`
`ANSWER
`
`Internal point of sale material designed for use on a one on one basis by
`sales personnel in presenting to individual operator accounts and in internal
`sales publication of Independent Marketing Alliance member companies, as well
`as promotional publication of those companies targeted to end user “business to
`business” accounts.
`
`Identify each Person currently or previously employed or engaged by
`7.
`Applicant who has participated or will participate in the creation or placement of
`advertisements or promotional‘ material for the products sold or intended to be sold
`under the Opposed Mark.
`‘
`
`ANSWER
`
`.
`Robert Fontana
`2
`Bob Planck
`Independent Marketing Alliance
`
`Ed Sanford
`Rob Ahrensdorf
`
`Brent Cady
`
`
`
`Feb 09 2008 8:55PM r'FlGEL,DFWIS 3. HILL
`
`7.-3—9s1_oss2
`
`Ceil Enault
`
`;
`Bryan Simnitt
`Independent Marketing§Alliance Member Companies - Marketing Advisory
`Council
`
`identify each advertising agency that Applicant has retained to advertise
`8.
`or promote the sale of products or services in connection with the Opposed Mark, and
`for each such agency identify the Person responsible for the advertising or promotion of
`products bearing the Opposed Mark, and describe the role each such Person played in
`such activities.
`
`ANSWER
`
`traditional advertisements through Independent
`There have been nof
`Marketing Alliance and maygwell never do so for the product line in dispute.
`Sales tools have been produced for use by the sales force employed by each
`independent Marketing Alliarice member company. Newhall Klein, inc designed
`the materials as well as packaging for the products.
`
`Identify all uses or proposed uses of the Opposed Mark by Applicant
`9.
`other than use in traditional forijns of advertising or promotion, including but not limited
`to use on letterhead, stationarygoffice supplies, buildings, or equipment.
`
`ANSWER
`
`The name brand may appear in locally generated flier, publications,
`letterheads, napkins, sandwifch bags, buttons, caps, aprons, banners, signage,
`and similar tools used to help market these items to our members end user
`customers.
`Independent Marketing Alliance is in a business to business
`environment and its member's customers sell their products to the public.
`
`identify each Person currently or previously employed or engaged by
`10.
`applicant who has participated or will participate in the licensing,
`franchising, or
`assignment of the Opposed Maik.
`
`ANSWER
`
`Robert Fontana
`Jim Nesbitt
`Ernie Livaditis
`
`Mike Gentry
`Bob Planck
`
`
`
`Feb 09 2003 9:55am
`
`r'FlGEL,DFlVIS a. HILL
`
`7.3-951—oss2
`
`p s
`
`Identify all disputes, potential disputes, or negotiations between Applicant
`11.
`and any person other than Opposer concerning the Opposed Mark, including without
`limitation, notices or complaints of infringement and unfair competition, investigations
`into third-party use of arguable similar marks, and court and agency proceedings of any
`type. For each dispute, identify the parties involved, the trademarks involved. the date of
`the disputelinvestigation, and the current status of the dispute/investigation.
`
`ANSWER
`
`There are none at this time.
`
`identify all third-party marks of which you are aware and that you contend
`12.
`are sufficiently similar to the Opposed Mark or Opposer’s Marks as to bear on the issue
`of a likelihood of confusion betviieen the Opposed Mark and Opposer’s Marks.
`
`ANSWER
`
`See documents produced in response to discovery, including especially
`the trademark search results;
`
`13.
`
`For each mark identified in response to the preceding lnterrogatory:
`
`a.
`
`State whether the mark is currently in use in the marketplace; and
`
`ANSWER
`
`ANSWER
`
`A
`legal work at this
`Objection as calling for additional
`timej, which has not yet been completed. Subject to
`samfe,
`the mark is being used as evidenced by the
`dociirments
`being
`produced. Applicant will
`also
`supplement.
`
`b.
`
`If you ansizver the preceding sub-part affirmatively. describe with
`particularity the basis for your knowledge that the mark is currently
`in use, including the manner in which the mark is being used.
`
`.
`Objection as calling for additional legal work at this
`tlmei, which has not yet been completed. Subject to
`same, see documents being produced. Applicant will
`supplement.
`
`
`
`Feb 09 2008 9:53am
`
`rRGEL,IJFlVIS a. HILL
`
`'...a—951-0862
`
`p.'7
`
`Identify the Persoh or Persons to whom communications from customers,
`14.
`or members of the public regarding products offered in connection with the Opposed
`Mark are routed or will be routed.
`
`ANSWER
`
`Objection as overbroad and vague. Subject to same, communications
`regarding brands and brand confusion (assuming that such communications
`were to exist, which are disputed as it relates to the Opposer's mark and the
`Applicant's mark in question)?are directed through
`
`Robert Fontana
`Jim Nesbitt
`Ernie Livaditis
`
`Mike Gentry
`Bob Planck
`
`State the circumstances under which Applicant first became aware of
`15.
`Opposer or Oppose-r’s Marks, including the date on which such awareness occurred.
`
`ANSWER
`
`Objection as vague. Subject to such objection, see Search results and
`analyses of same which ldelntified Applicant's mark without belief that use of
`Applicant's mark was likely to cause confusion. Applicant's first knowledge of
`any alleged claim by Opposfer occurred upon receipt of a demand letter from
`Opposer's counsel.
`
`this Opposition proceeding,
`to the initiation of
`State whether, prior
`16.
`representatives of Applicant have engaged in communications referencing or relating to
`Opposer's Marks or any other riiark bearing the designation COBBLESTONE MILL or a
`variation thereof, and, if so, describe with particularity the substance of such meetings
`or conversations. and Identify the Person(s) in such meetings or conversations.
`
`ANSWER
`
`See documents produced.
`
`Describe any instance of which you are aware in which a Person has
`17.
`suggested, implied, or inferred in any way that any products or services offered or to be
`offered in connection with the; Opposed Mark originated from or are sponsored by,
`licensed by, or otherwise affiliated with Opposer andlor products or services offered
`under Opposer’s Marks, and iriclude an identification of the Person(s) involved in any
`such instance, the date of such; instance, and the manner in which the incident came to
`your attention.
`
`
`
`
`
`Feb‘ 09 2008 9:56Fll‘1
`
`r‘FlGEL,DFlVIS a. HILL
`
`‘,13—951—oss2
`
`ANSWER
`
`None.
`
`Identify each Person whom you intend to call as an expert witness in this
`18.
`proceeding and, with respect togeach such expert. describe with particularity the subject
`matter about which the expert is expected to testify.
`
`ANSWER
`
`Unknown at this time. Applicant will supplement.
`
`identify any and all Persons who participated in any way in the
`19.
`preparation of responses to the lnterrogatory questions set forth herein.
`
`ANSWER
`
`Robert Fontana
`
`Barb Walker
`
`Bob Planck
`
`Bartt G. Thompson
`
`Martyn B. Hill
`
`successors, parent companies,
`Identify any and all predecessors,
`20.
`subsidiaries, fictitious business names, trade names, and former names of Applicant.
`
`ANSWER
`
`Distribution Marketing Services, LP, d/b/a Independent Marketing Alliance
`
`Respectfully submitted,
`
` HiIl
`
`Bartt G. Thompson
`PAGEL, DAVIS & HILL, P.C.
`1415 Louisiana, 22'“ Floor
`Houston, Texas 77002
`Telephone: 713-951-0160
`Facsimile: 713-951-0662
`ATTORNEYS FOR APPLICANT
`
`
`
`5
`
`Feb‘ 09 2008 9:5SFiH
`
`HRGEL,IJFWIS a. HILL
`
`-..:-3-951-ossa
`
`p.9
`
`1 State of Texas _
`
`)
`
`VERIFICATION
`
`County of Harris
`)
`On thisday appeared before me Robert Fontana, ‘who having been duly sworn
`upon his oath deposed and said that he had read Independent Marketing -Alliances
`Answers to Opposer's First Set of interrogatories, and that the facts stated therein were
`
`_. within his personal knowledge?and are true and correct. /
`
`Robert Fontana
`
`A_ Sworn to and subscribed before me on this ‘Z
`
`day 0
`
`2006.
`
`lic State of Texas
`
`.
`
`-
`
`.
`
`‘.
`
`A‘
`
`
`
`CHERYL J. MA|?iiiN
`,~;3§:."°:zo.,
`~
`-‘
`“' Notary Public, Stats ‘arrow,
`
`
`MY Commission Expires
`
`Ocioberzs, 2 07
`
`.
`inn-"in
`\ “’,l,«{’ VYCSQTIFICATE OF SERVICE
`'
`—
`gnfiplld
`.--'—-?--":‘——‘——'
`4
`' This is ‘tocefié that on this the 6"‘ day of February, 2006, the foregoing was sewed on
`
`Opposer by depositing a_copy; thereof in the United States first class mail, postage pre- ’
`paid addressed to:
`
`;
`Theodore H.’ Davis Jr.
`‘Q
`Olivia Maria Baratta _
`KILPATRICK STOCKTON LLP»
`1100 Peachtree Street
`.
`Atlanta, Georgia 30309§4530-
`
`awe
`
`
`
`Martyn B. Hill
`
`.S:\PDH Files\Active\|MALD1\|MAL01L-Litigaiion\Fiowers-Cobblestone\DRA\D|SORRC20060206. lMAL'S Answers to
`1st Set of Rogs.doc
`;
`
`
`
`Exhibit 5
`
`
`
`Feb 09 2008 9:4-SRH
`
`I-r-lGEL,DFlVIS 8. HILL
`
`I
`
`715-851 -0862
`
`IN THE UNITED? STATEESEPATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`FLOWERS BAKERIES BR/5liNDS,
`|NC.,
`
`Opposer,
`-
`v.
`INDEPENDENT MARKETINEG
`ALLIANCE LP,
`'
`Applicant.
`
`Opposition No. 91167151
`Serial No. 78/432,642
`Published 9/20/2005
`
`9
`)
`§
`;
`)
`)
`
`APPLl_C_iANT’S'RESPONSE TO OPPOSER'S
`. FIRST REQUESTS FOR PRODUCTION OF DOCUMENTS
`
`Applicant Distribution; Marketing Services, .L.P., f/kla Independent Marketing
`Alliance, LP (“Applicant”)
`rlesponds to Opposer’s First
`request for Production of
`- Documents in the above andistyled opposition as follows:
`
`RESPDNSES TO DOCUMENT REQUESTS
`
`Preliminary Response: Responsive Documents are in the process of being accumulated
`and bates stamped. They will be sent to Opposer’s counsel shortly on a CD and likely
`in batches. Note that some dfocuments have already been produced based on a desire
`to quickly communicate certain requested infonnation to Opposer, but those documents
`will be‘ included within the formally produced documents after being bates stamped as
`‘ appropriate.
`
`Documents responsive to Opposer’s First Set of interrogatories or that
`1.
`prove or contain infonnation responsive thereto.
`
`RESPONSE
`
`Such ‘documents havée been produced and will be supplemented.
`
`relate to the creation,
`refer, or
`Documents that describe, discuss,
`2.
`development, selection, design, or adoption of the Opposed Mark,
`including but not
`limited to trademark searches,
`investigations. market research or studies, written
`reports, artwork, sketches, dratfts, drawings, or images.
`
`RESPONSE
`
`
`
`Feb 09 2008 9:4-SHM
`
`I-’HGEL,D:FlVIS 8. HILL
`
`713-951-0882
`
`Such documents hzive been produced and will be supplemented.
`
`All documents? relating to any opinion that Applicant received concerning
`3.
`its right to adopt. use and/or register the Opposed Mark in the United States.
`
`:1
`RESPONSE
`Such documents hajveibeen produced and will be supplemented.
`
`All documents ithat describe, discuss, or relate to any "alternative marks or
`4.
`logos that were considered at the time of Applicant's selection of the Opposed Mark.
`
`RESPONSE
`
`Such documents hat/e been produced and will be supplemented.
`‘ 5
`All documents that. describe, discuss, or
`relate to any changes,
`modifications, or variations the Opposed Mark since Applicant first adopted it.
`R_ESPONSE
`I
`
`Such documents have been produced and will be supplemented.
`6.
`Documents their consist of, refer, or relate to applications filed by or on
`behalf of Applicant in the United States Patent and Trademark Office or with any state
`government to register the Opposed Mark.
`
`RESPONSE I
`
`Objection as overbrfoad and vague. Subject to same. documents have
`been produced which relate to the mark in question and the ‘products associated
`with such mark.
`_
`f
`
`_ Documents thali describe, discuss, or relate to the decision by Applicant to
`7.
`apply for a trademark registration covering the Opposed Mark in the United States.
`
`RESPONSE
`
`Such documents have been produced and will be supplemented.
`
`to show Applicant’s bona-fide intent-to—use the
`Documents sufiicient
`8.
`Opposed Mark on each product‘ listed in the application (Serial No. 78/432,642) to
`register the Opposed Mark.
`
`_
`
`RESPONSE
`
`
`
`Feb 09 2006 9:49am
`
`PFlGEL,DFlVIS a. HILL
`
`713-951-0882
`
`"Such documents have been produced and will be supplemented.
`9.
`Documents that constitute, evidence, describe, discuss or relate to
`licenses, assignments, prdposed assignments or other-agreements referring or
`pertaining to the Opposed Mark or to products offered under the Opposed Mark‘.
`‘RESPONSE
`
`to confidentiality issues.
`Objectionas overtiroad, vague and subject
`Subject to same, responsive
`documents likely to lead to the admission of
`relevant evidence as relatfed to this dispute have been produced and will be
`supplemented.
`2
`
`Documents sufficient to show the specific states in which Applicant has
`10.
`sold, are selling or intend to sell each product listed in the application (Serial No.
`78/432,642) in connection with the Opposed Mark.
`
`RESPONSE
`
`Such d'oc'urnents have been produced and will be supplemented.
`11.
`Documents that evidence, describe, refer or relate -to the date(s) or
`proposed date on which. Applicant commenced use or will commence use of the
`Opposed Mark for each separate category of products on which they have been used.
`
`RESPONSE"
`
`Such documents havie been produced and will be supplemented.
`
`Representative gsamples of all ‘products sold or intended to be sold by
`12.
`,
`Applicant in connection with tile Opposed Mark.
`
`RESPONSE
`
`Objection as unreasonable and overbroad. Deli meats are not easily
`‘transported and produced§ in litigation. Representative literature has been
`produced and will be supplemented.
`Should Opposer desire. a personal
`inspection of such meats and cheeses and other goods in association with the
`Opposed Mark, arrangemenlls can be made mutually satisfactory to both parties.
`13.
`Representative fsamples of each different advertisement, ‘ proposed
`advertisement or other promotional or proposed promotional material of Applicant
`referring to the Opposed Mark,
`including but not
`limited to invitations, brochures,"
`proposals, direct mail advertisements, lntemet and electronic mail advertisements and
`promotional materials.
`1
`-
`
`
`
`Feb 09 2008 8:49FlN
`
`t’FlGEL,DHVIS 8. HILL
`
`713-951-0682
`
`p.5
`
`RESPONSE
`
`Such documents halve been produced and willbe supplemented.
`
`14.
`
`to the Opposed Mark.
`
`Representative samples-of each different press release or article referring
`
`‘
`
`Reseonsef
`
`Such documents hag/e been produced and will be supplemented.
`15.‘ Documents slifficient
`to show Applicant's advertising or promotional
`expenditures or proposed advertising or promotional expenditures -relating to the
`products sold, offered for sale, or intended to be offered for sale under the Opposed
`Mark.
`2
`A
`E:
`
`RESPONSE —
`
`-Objection as overbrdad, vague and subject to concerns -of confidentiality.
`Subject to same, such documents have been produced and will be supplemented.
`16.‘ Documents sufjficient to ‘show the price or proposed price of each product
`offered by Applicant or intended to be offered by-"Applicant under the Opposed Mark.
`. B§5£2N_$_E
`
`Objection as overbroad, vague and subject to concerns of confidentiality.
`This request is simply not intended to elicit information reasonably calculated to
`lead to the discovery «of adlnissible evidence. Pricing is highly proprietary and
`complex. Retail prices which correspond to.Opposer*s mark's products at the
`retail level are set by others;
`
`RESPONSE
`
`Objectionas overbropd, vague and subjectrto concerns of confidentiality.
`Subject to same, redacted jand summarized versions of such documents have
`been produced or will be prdduced and supplemented
`
`
`
`Feb 09 2008 9:49HM
`
`PFlGEL,DF!VIS 8: HILL
`
`713-951-0682
`
`_ 18._ Documents tljat evidence. describe, refer or relate to the channels of
`trade through which Applicant distributes, has distributed, or intends to distribute
`products under the Opposed Mark, including but not limited to documents identifying the
`wholesalers, retailers, distributors, lnternet, or other outlets through which the products
`sold under the Opposed Matk are, -have been or will be sold, and the geographic are
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