Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA97469
`ESTTA Tracking number:
`09/01/2006
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91168365
`Plaintiff
`MTD Products Inc
`DANIELLE A. SKOCZEN
`Wegman, Hessler & Vanderburg
`6055 Rockside Woods Blvd.Suite 200
`Cleveland, OH 44131
`UNITED STATES
`WHVIPGroup@wegmanlaw.com
`Other Motions/Papers
`Danielle A. Skoczen
`daskoczen@wegmanlaw.com, WHVIPGroup@wegmanlaw.com,
`ldolan@addmg.com
`/DAS/
`09/01/2006
`Stipulation for Entry of Protective Order.pdf ( 7 pages )(379122 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
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`

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`IN THE UNETED STATES PATENT AND TRABEMARK OFFICE
`BEFORE THE TRADEl\'i%{ AND APPEAL BOARQ
`
`Opposition No. 91 168365
`Serial No. 78541594
`
`
`
`MTD PRODUCTS iNC
`
`
`
`Opposer,
`
`7V V5 -
`
`HARREUJS, INC.
`
`Applicant.
`
`STIPULATION FOR ENTRY OF
`PROTECTHVE ORDER
`
`WHEREAS, certain information, documents and things that contain trade secrets or
`other eonftdentiai business or other connnereial inforrnation within the meaning of Ruie
`26(c) of the Federal Ruies of Civii Procedure and in accordance with Section 434 of the
`Trademark Trial and Appeal Board’s Manual of Procedure may be disclosed by the parties
`and/or nonparties voltintarily and/or in response to discovery demands;
`
`WHEREAS, it would serve the interests of the parties to conduct this proceeding
`and discovery herein under a Protective Order pursuant to Rule 26(c) of the Federal Rules of
`Civil Procedure and Section 414 of the Trademark Trial and Appeal Boards Manual of
`Procedure;
`
`IT IS HEREBY STEPULATED AND AGREED THAT:
`
`This Protective Order shall apply to all information, documents and things
`1.
`designated CONFTDENTEAL or CONFIDENTIAL AVAILABLE TO COUNSEL ONLY
`by the parties or nonpany witnesses as provided in this Order. As used herein "Confidential
`information" means any information, documents and things so designated.
`
`All documents, things, answers and other information furnished in discovery
`2.
`are provided soleiy for the purpose of this litigation between the parties and may not be used
`for any other purpose.
`
`Each affidavit or portion thereof, each deposition transcript or portion
`3.
`thereof, each interrogatoiy answer or portion thereof, each document or portion thereof,
`
`L:\I}OCS\D40l 58\1502T-MPROTECTIVIE ORDERDOC
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`

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`each premise or thing or portion thereof, which is deemed by a plaintiff or a defendant or by
`a nonparty witness producing same to disclose Confidential lnfonnation will be so identified
`and label ed CONEIDENTLAL or CONFLDENTIAL AVAILABLE TO COUNSEL ONLY
`as follows:
`
`A party and/or nonparty witness may designate material CONFIDENTIAL
`a.
`only if it, in concurrence with its counsel, in good faith deems that a reasonable basis exists
`for limiting dissemination of the rnateriai under the standards of Rule 26 of the Federal
`Rules of Civil Procedure and Section 414 of the Trademark Trial and Appeal Boards
`Manual of Procedure. A party and/or nonparty witness may designate tnateriai
`CONFDDENTLAL AVAILABLE TO COUNSEL ONLY only if it, in concurrence with its
`counsel, in good faith deems that disclosure of such material to a party would be injurious to
`the commercial interests of the desigiating entity under the standards of Rule 26 of the
`Federal Rules of Civil Procedure Section 4'14 of the Trademark Trial and Appeal Board’s
`Manual of Procedure.
`
`in the case of information voluntarily disclosed in these proceedings or
`b.
`disclosed as a result of discovery, the producing entity may identify and mark Confidential
`information at the time when an affidavit, pleading or rnernoranda is served, when the
`answer to the interrogatory or request for admission is served, when a copy of a document is
`provided or at the time of the inspection of the premises or thing.
`
`the designating patty shall advise
`In the case of a deposition transcript,
`0.
`opposing counsel of the specific pages and exliibits to be maintained in contidence within
`three weeks after receipt of the transcript. The party asserting confidentiality shall mark the
`specific pages
`and exhibits
`so designated CONFIADENTEAL or CONFIODENTIAL
`AVAILABLE TO COUNSEL ONLY and shall send a list andfor copy of such designated
`pages to the other party and the Court Reporter who shall conform ail copies of the material
`in their possession to reflect such confidentiality designation and shall re—bind separately
`those portions of the testimony andfor exhibits designated as Confidential lnfonnation and
`shalt mark the face of the separately bound transcript containing such confidential testimony
`and/or exhibits CONFIDENTIAL PURSUANT TO COURT ORDER or CONFIDENTEAL
`PURSUANT TO COURT ORDER ——«« AVAILABLE TO COUNSEL ONLY,
`as
`
`appropriate.
`
`A party or nonparty deponent may also designate testimony or exhibits as
`cl.
`Coiitidential in formation during a deposition, a hearing or at trial by so stating on the record
`either at the contrnencement of the proceeding or at any time during the proceeding,
`in
`which event all persons who are not entitled to be privy to Confidential Information
`pursuant to Paragraph 5 hereof shall be excluded from those portions of the proceeding at
`which such infomiation is disclosed. In the event that testimony or exhibits are designated as
`Confidential lnforrnation during a proceeding, the Court Reporter shall transcribe separately
`and bind separateiy those portions of the testimony and/or exhibits designated as
`Confidential
`information and shall mark the face of the separately bound transcript
`containing such confidential testimony and/or exhibits CONFIDENTIAL PURSUANT TO
`
`

`
`COURT ORDER or CONFEDENTIAL PURSUANT TO COURT ORDER -
`AVAILABLE TO COUNSEL ONLY, as appropriate.
`
`Inadvertent failure to designate Confidential Information as such prior to
`4.
`disclosure, production or response will not prevent a subsequent confidentiality designation
`by tetter promptly sent after discovery of such inadvertent faiiure, provided that any
`disclosure made by the receiving party prior to receipt of the ietter shall not be a violation of
`this Order.
`
`so identified as
`rules that any material
`the Court
`Until and unless
`5.
`CONFIDENTTAL or CONFBENTEAL AVAELABLE TO COUNSEL ONLY is not,
`in
`fact, confidentiai and should be disclosed beyond the limits permitted by this Order, access,
`copying or dissemination of information, documents and things so identified shall be limited
`ID.
`
`Counsel of record and their partners, associates and of counsei attorneys, and
`a.
`their employees who are not employees of the parties or
`their affiliates,
`including
`stenographic, ciericai and paralegal employees, whose functions require access to such
`Confidential information;
`
`Independent experts or consultants for each party and their clericai personnel
`b.
`who are not employees of the parties or their affiliates and whose advice, consultation
`andfor testimony are being or will be used by the parties in connection with preparation for
`trial of this action and/or any motions or appeals connected with this action provided that
`such persons have agreed in writing, before such access is given, to be bound by the terms
`of this Protective Order and provided, further, that each party shall keep a record of all
`Confidential information that it discloses to any expert or consultant, and provided, further,
`that if any such person is a direct competitor of the designating entity or is affiliated with
`any enterprise that
`is
`in a position to commerciaily exploit
`information marked
`CONFIDENTIAL AVAILABLE TO COUNSEL ONLY (hereinafter
`an
`"Expert
`Competitor“), then the party seeking to disciose information marked CONFIDENTIAL
`AVAILABLE TO COUNSEL ONLY to the Expert Competitor must deliver written notice
`to the designating entity of its desire to do so at least five (5) business days before making
`disciosure to the Expert Competitor. During this period, the recipient of such notice may
`object to the disciosure of ali or any portion of the information marked CONFIDENTIAL
`AVAILABLE. TO COUNSEL ONLY to the Expert Competitor.
`In the event of such
`objection, the designating entity and the party seeking to disclose information to an Expert
`Competitor shall attempt
`in good faith to negotiate a stipulation to deiineate what
`information marked CONFIDENTIAL AVAILABLE TO COUNSEL ONLY may be
`disclosed to the particular Expert Competitor and the circumstances under which such
`disclosure may be made. If they cannot agree, the party seeking to disciose information
`marked CONFIDENTLAL AVAILABLE TO COUNSEL ONLY to the Expert Competitor
`shall not do so without first obtaining Court approvai pursuant to Paragraph 10 hereof. in
`determining whether to categorize a person as an Expert Competitor for purposes of this
`paragraph, counsel shah exercise reasonable judgment as to whether any enterprise with
`
`

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`which such person is known to be affiliated is in a position to cornmercialiy exploit
`information marked CONFIDENTIAL AVAILABLE TO COUNSEL ONLY;
`
`c.
`
`The Court and its officers (including Court Reporters)‘,
`
`Witnesses for deposition and counsel for such witnesses in the course of a
`d.
`deposition or, following the issuance of a notice to take the deposition of a witness,
`in
`preparation for such witness's deposition; provided that, the party making such disclosure to
`a witness in preparation for the witness's deposition shall keep a record of the Confidential
`Information disclosed to such witness and provided,
`further,
`that
`in advance of the
`disclosure of information marked CONFIDENTIAL AVMLABLE TO COUNSEL ONLY,
`the party seeking to disclose such infoirnation shall so inform the entity who designated the
`infonnation as confidential and such designating entity shall be entitled to object to the
`disclosure in which event they shall attempt in good faith to negotiate a stipulation to
`delineate what
`information marked CONFlDEN’l"lAL AVAJLABLE TO COUNSEL
`ONLY may be disclosed to the particular witness and the circumstances under which such
`disclosure may be made. If the parties cannot agree,
`the party seeking to disclose the
`information marked CONFlDENTlAL AVAILABLE TO COUNSEL ONLY at or in
`preparation of a witness for a deposition shall not do so without first obtaining Court
`approval pursuant to Paragraph 10 hereof;
`
`The parties to this action and their affiliates, except for documents marked
`e.
`by the producing party CONFIDENTIAL AVMLABLE TO COUNSEL ONLY; and
`
`f.
`
`any other person that the parties hereto agree to in writing.
`
`Any person to whom disclosure will be made pursuant to Paragraphs S(b), (d) or (f)
`of this Order shall be given in advance a copy of this Order and shall acknowledge that he or
`she is subject to the terms of this Order by executing the recital in the form attached here as
`[Cite exhibit]. Counsel for each party shall maintain copies of executed recitals with respect
`to all persons described in Paragraphs 5(b), (cl) or (t) to whom counsel has disclosed or
`exhibited any Confidential Information.
`
`Absent Court order, Confidential Information hearing a label specified in
`(3.
`paragraph 3 hereof shall not he made public by a party or witness to whom they are
`disclosed, unless they become a part of the public record of this action. All infoririation
`subject to confidential treatment in accordance with the terms of this Protective Order that is
`filed with the Court, and any pleadings, motions or other papers filed with the Court
`disclosing any Confidential Information, shall he filed under seal and kept under seal until
`further order of the Court. Where possible only confidential portions of filings with the
`Court shall he filed under seal. Such Confidential information shall he filed with the Clerk
`of the Court in a "Sealed and Impounded Record“ envelope provided for this purpose by the
`United States "District Court for the Southern District of [State].
`
`This Protective Order shall not foreclose any of the parties from moving this
`7.
`Court for an order that materials bearing a label specified in paragraph 3 hereof are, in fact,
`
`

`
`not within the scope of protection afforded by Rule 26(e) of the Federal Rules of Civii
`Procedure Section 414 of the Tradetiiaik Trial and Appeal Board’s Manual of Procedure
`or
`that Confidential
`information designated as CONFEENTEAL AVAILABLE TO
`COUNSEL ONLY should be reclassified as CONHDENTIAL only or that materials
`voluntarily disclosed by a party in these proceedings should not be subject to the protections
`of this Order. In addition to service on the opposing party, a copy of any such motion shall
`be served on any non-party who designated the materials at
`issue as Confidential
`Information and such non—party shall have standing to oppose such motion before the Court.
`On such motion, the entity asserting confidentiality shall have the burden of proving that the
`material in question is within the scope of protection afforded by Rule 26(c) of the Federal
`Rules of Civil Procedure and/or that disclosure of the material should be restricted. Nothing
`contained herein shall preclude a party or nonpatty witness from (a) using or disseminating
`its own Confidential
`lnfomiation in any way;
`(b) disclosing information taken from a
`document marked CON"FiDENTlAL or CONFIDENTIAL AVAILABLE TO COUNSEL
`ONLY to any person who on the face of that document is shown as having previously
`received the document; (C) disclosing information which, at the time of disclosure, was
`already in the recipient’s possession or available to it from any other source having no
`obligation to the party or nonparty witness which is the source of said information or which
`is, or at any time hereafter becomes, available to the public or which, after access is gained
`through disclosure i.n this action, is at any time obtained by the recipient from any other
`person, tinn or company having no obligation to or relationship with the source of said
`infonnation; or (d) waiving any provision in this Order with respect to any Confidential
`information designated by it without further order of the Court.
`
`This Protective Order shall not prevent any of the parties or nonparty
`8.
`witnesses from applying to the Court for reliefhere or from applying to the Court for further
`or additional protective orders, or from agreeing between themselves to modification of this
`Protective Order, subiect to the approval of the Court.
`
`Subject to the limitations of this Protective Order, Confidential Information
`9.
`identified in accordance with paragraph 3 hereto may be used during discovery, during any
`motion hearings, at the trial of this action or in support or in opposition to any motions in
`this action subject to the Federal Rules of Evidence and subject to any further Order as this
`Court may enter, and may be used to prepare for discovery andfor trial and/or any motions
`in this action, but may not be used for any other purpose; provided, however, that those
`portions of such testimony, evidence and motion papers containing Confidential Information
`shall also be considered Confidential l'.nfo1rna.tion subject to the strictures of this Protective
`Order and must be filed with the Clerk of this Court in accordance with paragraph 6 of this
`Order. When Confidential Information or other documents containing such inforrnation are
`presented, quoted or referenced in any hearing, trial or other proceeding, counsel of record
`for the offeriiig party shall make arrangements or, when appropriate, request that the Court
`make arrangements to ensure that, consistent with applicable legal restraints, only persons
`entitled to receive Confidential Information are present during such presentation, quotation
`or reference.
`
`

`
`that a party shall desire to provide access to Confidential
`in the event
`10.
`Information hereunder to any person or category of persons not included in paragraph 5
`hereof, it shall move this Court for an order that such person or category of persons may be
`given access to the Confidential Information. In the event that the motion is granted, such
`person or category of persons may have access to the Confidential In formation provided that
`such person or persons have agreed in writing, before such access is given, to be bound by
`the terms ofthis Protective Order.
`
`After final termination ofthis case, receiving counsel shail return all copies
`11.
`and samples of Confidential Information in its possession, custody or control to counsel for
`the party who has provided them or certify destruction thereof.
`
`No copy of any transcript of any deposition taken by any party which is
`12.
`designated in part or in whole as Confidential information shall be prepared or furnished by
`the reporter to any person other than to attorneys of record for the parties. Neither the
`original nor any copy of any transcript of any deposition taken in this action shall be filed in
`Court until the time period has eiapsed for the designation of portions of the transcript as
`Confidential Information. Ifgiven a confidentiality classification, the confidential portion of
`the transcript shall be retained by said counsel and, when used in this action, filed under seal
`in accordance with paragraph 6 above unless otherwise agreed upon by the parties.
`
`Inadvertent production of any document, thing or other information during
`13.
`discovery in this action shall be without prejudice to any claim that such materiai
`is
`privileged in any way or protected don: discovery as attomey WOI‘l{—p1‘0CitlCl, and no party or
`non—party witness shall be held to have waived any rights by such inadvertent production.
`The producing entity shall assert any such privilege or work-product claim promptly upon
`discovery of its inadvertent production by notifying the recipient of the document of its
`claim in writing or oraliy at a deposition or other heating of record. Upon receipt of such
`notice, the recipient shall return all copies of the document or in forniation to the producing
`entity. Such document or information shall not be introduced into evidence in this or any
`other proceeding by any person without consent of the producing entity or by order of the
`Court, nor will such document or information be subject
`to production in any other
`proceeding by virtue of the fact that it was inadvertently produced in this proceeding.
`
`that a party or nonparty witness to which Confidential
`In the event
`I4.
`Information has been disclosed receives a discovery request. subpoena, order or other form
`of compulsory process requiring that
`it (the "subpoenaed party") produce information.
`documents, things or other materials that have been designated as Con fidcntial Information,
`the subpoenaed party shall promptly notify the designating party of the demand. If the
`designating party elects to resist production of the materials, it shalt promptly so notify the
`subpoenaed party and the latter shall cooperate in affording the designating party the
`opportunity to oppose or limit production of the materials; provided that the designating
`party shall bear all expenses, including attorneys‘ fees, incurred by the subpoenaed party in
`connection therewith.
`
`

`
`This Protective Order shalt survive the final determination of this action and
`t5.
`shall remain in full force and effect after the eonctusion of all of the proceedings herein in
`order to provide the Court with ancillary jurisdiction to enforce its terms and to ensure
`compliance herewith.
`
`Having read the foregoing Stipulation and Order governing treatment of Confidential
`Infonnation and agree to be bound by its terms with respect to any information, documents
`or materials designated by the parties andior nonparties
`as CONFIDENTIAL or
`CONFIDENTIAL AVAILABLE TO COUNSEL ONLY that are furnished to me as set
`forth in the Order, I agree to the fotlowing:
`
`(a) not to disclose to anyone information, documents or materials designated by the
`parties andfor nonparties as CONFIDENTIAL or CONFIDENTIAL AVAILABLE TO
`COUNSEL ONLY other than as set forth in the Order;
`
`(b) not to make any copies of any infointation, documents or materials designated by the
`parties and/or nonparties as CONFIDENTIAL or CONFIDENTIAL AVAILABLE TO
`COUNSEL ONLY furnished to me except in accordance with the Order;
`
`(C) consent to the jttrisdiction of the United States Trademark Trial and Appeal Board
`with respect to any proceedings to en force the terms of the Order;
`
`that any information, documents or materials designated by the parties andfor
`(d)
`nonparties as CONFIDENTIAL or CONMDENTIAL AVAILABLE TO COUNSEL
`ONLY titrnished to me witl be used by me only for the purposes of the action entitled MTD
`PRODUCTS INC vs I-IARR.ELL’S, INCL, Opposition No. 91168365, Serial No. 78/541594
`pending in the United States Patent and Trademark Office, before the Trademark Trial and
`Appeal Board and for no other purpose, and wilt not be used by me in any business affairs
`of my employer or of my own or he imparted by me to any other person.
`
`art R. WEIZGI7]-Danielle A. Skoezen
`WEGMAN. HESSLER 3: VANDERBURG
`Cotmselfor Opposer
`
`W
`
`Linda C. Dolan
`ALLEN. DYER. DOPPELT, MILBRATI-I
`at GILCRESK RA.
`Comrselfor Appliccntt
`
`MMMM_y