‘
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`"1
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`I
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`inn 7 I
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`UNITED STATES PATENT AND TRADEMARK OFFICE
`TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Nos. 76643273; 76643242; 76643241: GIRLGROOM;
`GALGROOM and GUYGROOM
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`Publication Dates: September 5, 2006; October 3, 2006 and September 5, 2006
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`PHCP Inc., .
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`V.
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`LG International LLC,
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`Petitioner,
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`Respondent.
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`\/\/\/\/\/\_/g/\/\g
`
`Opposition Nos. 91174927; 91174937
`and_91175116
`
`PROTECTIVE ORDER
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`The signatories, through their attorneys of record herein, hereby stipulate and
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`agree that, during the pendency of this action, or until such other time as hereinafter set forth, the
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`signatories and their counsel shall follow the procedures set forth below with respect
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`to
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`Confidential Information that is disclosed through discovery in this action.
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`1.
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`When used in this Protective Order, the words set forth below shall have
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`the followingmeanings:
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`(A)
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`“Documents” include (i) any tangible things, including all writings,
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`drawings, graphs, charts, photographs, phonorecords and other data compilations from which
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`information can be obtained or translated, as those terms are used in Federal Rules of Civil
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`Procedure 26(b) and 34, which have been produced in discovery in this action by any person,
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`whether pursuant
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`to formal discovery requests or by agreement; and (ii) any copies,
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`reproductions, or summaries of all or part of the foregoing, including microfilm copies.
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`(B)
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`“Discovery Materials” mean (i) documents and tangible things; (ii)
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`deposition testimony taken in this action, exhibits thereto, and transcripts thereof, whether in
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`wiiting or on audiotape, videotape or computer disk; (iii) answers to interrogatories, responses to
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`requests to admit served or filed in this action, and responses to requests for disclosure served or
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`filed in this action; and (iv) any other discovery materials produced by either Party to this action
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`or by any and all non-parties in response to discovery requests made by any Party.
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`(C)
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`“Disclose” means to reveal, divulge, give, or make available
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`Discovery Materials, or any part thereof, or any information contained therein.
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`(D)
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`“Confidential Information” means any Discovery Materials that
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`contain or reveal confidential
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`research, development,
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`financial, commercial, marketing or
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`business information,
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`trade secrets, know-how, or proprietary data relating to research,
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`development, financial, commercial, marketing, business or other technical or non~technical
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`subject matter within the meaning of Fed. R. Civ. P. 26(c)(7).
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`(E)
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`“Producing Party” means the individual or entity disclosing
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`Discovery Materials.
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`(F)
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`“Litigation” means
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`the proceedings of PHCP Inc.
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`v. LG
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`International LLC, Opposition Nos. 91174927; 91174937 and 91175116, currently pending in
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`the United States Patent and Trademark Office Trademark Trial and Appeal Board (the
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`“Board”), and all subsequent appeals and re-trials, and any other proceeding that may address the
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`disputed issues between the parties.
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`(G)
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`"Party" or "Parties" means PHCP Inc. and LG International LLC.
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`(H)
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`"Signatory" means any individual, entity or other person who
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`agrees to disclose Discovery Materials pursuant to the terms of this Protective Order.
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`(I)
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`"Counsel" or "Attorneys" means (a) outside counsel for the Parties
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`and their associated attorneys, paralegals, clerical staff, and outside contractors hired to copy,
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`index, sort or otherwise manage the storage and retrieval of documents; and (b) in-house counsel
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`currently employed directly by the Party.
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`(J)
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`"Outside Consultants" means any person requested by outside
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`counsel to furnish expert services or to give testimony-, or otherwise to assist in trial preparation
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`in this Litigation, each of which will be given limited access to Confidential Information subject
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`to the terms set forth below and only for the purposes set forth in Paragraphs 3 and 11 below;
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`provided that the person to whom the information is disclosed first shall be advised of and shall
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`agree to the terms and conditions to this Agreement by signing a "Confidentiality Agreement" in
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`the form attached hereto as Exhibit A and shall maintain the information in a separate and
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`identifiable file, access to which is appropriately restricted;
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`(K)
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`“In-house Consultants" means specific, designated employees from
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`each of the Parties. Each Party will be permitted to designate up to two in-house persons
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`currently employed directly by the Party whom will be given limited access to Confidential
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`Information subject to the terms set forth below and only for the purposes set forth in Paragraphs
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`3 and 11 below. Such in-house employee first shall be advised of and agree to the terms and
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`conditions of this Agreement by signing a "Confidentiality Agreement" in the form attached
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`hereto as Exhibit A and each employee who retains a copy of information so designated shall
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`maintain the information in a separate,
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`identifiable file, access to which is appropriately
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`restricted.
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`2.
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`In ordering the following procedures set forth herein,
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`the Board has
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`considered and relied upon the following factors:
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`(A)
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`It is desirable for the signatories and their respective counsel to
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`coordinate their efforts and to exchange information for purposes of prosecuting or defending
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`claims asserted in this Litigation, with a minimum of burden, expense, disputes and delay;
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`(B)
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`In
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`the Litigation,
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`the plaintiffs will
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`seek documents
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`and
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`information regarding the business of defendants from the defendants, much of which may be
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`non-public, confidential, proprietary, or commercially sensitive. Likewise,
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`in the Litigation,
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`defendants will seek documents and information regarding the business of plaintiffs from the
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`plaintiffs, much of which may be non-public, confidential, proprietary, or commercially
`sensitive;
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`(C)
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`Entry of this Protective Order (i) will permit discovery to proceed
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`more expeditiously and with less expense; and (ii) will minimize discovery disputes and
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`facilitate the taking of depositions, thus permitting the Parties to conduct discovery with less
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`delay and expense; and
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`(D)
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`Good cause has been shown pursuant to Federal Rule of Civil
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`Procedure 26(c).
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`3.
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`Confidential
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`Information shall be used only for the purpose of the
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`Litigation and may be disclosed only as provided herein.
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`4.
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`In designating information as “Confidential Information,” a party or non-
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`party shall designate only its trade secrets, information that it has maintained in confidence, or
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`information in which it has a proprietary interest. The designation of “Confidential Information”
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`by the producing party constitutes the representation of that party that it reasonably and in good
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`faith believes that the designated material constitutes or discloses its trade secrets or other
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`research, development or commercial
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`information within the meaning of Fed. R. Civ. P.
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`

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`26(c)(7).
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`“Confidential” Discovery Materials, and the contents thereof, or any information
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`contained therein, shall not be disclosed to any person or entity except in accordance with the
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`terms, conditions, and restrictions of this Protective Order.
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`5.
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`Confidential
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`Information may be designated in one or more of the
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`following classes:
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`(1) "Confidential — Outside Consultants Only," in which case it will be
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`. accessible only to Counsel and Outside Consultants, as defined in Paragraphs 1(1) and (J) above
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`and designated in Paragraphs 6(a) and (c) below, respectively; (2) "Confidential Information," in
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`which case it will be accessible only to Counsel, Outside Consultants, and In-house Consultants,
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`as defined in Paragraphs
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`1(1),
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`(J) and (K) above.
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`Discovery Materials designated as
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`"Confidential —- Outside Consultants Only" shall be limited to formulations, methods, customer
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`or supply lists, financial or sales information, present marketing plans, or other information
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`which, if disclosed to a competitor, would subject the Producing Party to substantial harm or an
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`unfair competitive disadvantage.
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`I
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`..
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`6.
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`The Parties shall designate in writing In-house Consultants prior to
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`disclosing Confidential Information to such In-house Consultants.
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`If no objection is received
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`within seven (7) days of the written designation,
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`then the Party may disclose Confidential
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`Information to the In-house Consultants.
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`7.
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`Each Party may substitute persons for the persons named in Paragraph 6
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`upon disclosure of the proposed person to the other Party and obtaining the agreement of the
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`other Party, which agreement will not be unreasonably withheld.
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`8.
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`A document or information contained in a document may be designated as
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`confidential, as described in Paragraph 5 above, by stamping or otherwise clearly marking each
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`page of the document believed to contain Confidential Information. As such, entire documents
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`should not be designated as “Confidential Information” if the confidential material can be
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`redacted. Any Confidential Information so redacted shall be produced separately by the
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`Producing Party in unredacted form.
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`9.
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`A person to whom Confidential Information is disclosed:
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`(i) shall protect
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`its confidential nature both during the pendency of the Litigation and after its conclusion by final
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`judgment or settlement, to the extent such Confidential Information is not otherwise made public
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`at trial or by other means pursuant to Paragraph 13 below; (ii) shall never disclose any part of it
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`to any person other than the persons to whom disclosure is permitted by this Protective Order;
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`(iii) shall never use any part of it for the benefit of himself or herself, the discovering party or
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`anyone else, except for the purpose of the Litigation; and (iv) shall maintain Confidential
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`Information in a secure place where unauthorized disclosure cannot reasonably be expected to
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`OCCUI‘.
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`10.
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`The attorneys of
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`record are responsible for employing reasonable
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`measures to control, consistent with this Protective Order, duplication of, access to, and
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`distribution of the Confidential Information. Confidential Information shall not be duplicated
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`except to produce working copies and copies for use in Board proceedings pursuant to Paragraph
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`12 below.
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`If the duplicating process by which copies or reproductions of Confidential
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`Information are created does not preserve the confidentiality designations that appear on the
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`original documents, all such copies or reproductions shall be stamped confidential.
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`11.
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`Persons obtaining access to or knowledge of Confidential Information to
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`which this Protective Order applies shall use the documents or information thus obtained only for
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`purposes relating directly to the Litigation (including appeals and retrials), and shall not use such
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`documents or information, for any other purpose,
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`including any business, competitive, or
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`commercial purpose, or for other cases, disputes, or governmental, administrative, or judicial
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`proceedings. Breach of the provisions of this Protective Order shall be subject to sanctions, in
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`the discretion of the Board, as authorized by any statute, rule, or inherent power of the Board or
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`as otherwise provided by law.
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`12.
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`The entry of this Protective Order does not alter, waive, modify or abridge
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`any right, privilege or protection otherwise available to any signatory with respect to discovery
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`matters, including but not limited to any signatory’s right to assert the attorney-client privilege,
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`work product doctrine, or other privileges, with respect to Discovery Materials or any signatory’s
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`right to contest such assertion.
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`13.
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`This Protective Order shall not preclude the disclosure of Confidential
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`Information to the Board. Any portion of the record reflecting Confidential Information, any
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`documents filed which include, reflect, or otherwise convey Confidential Information, and any
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`other use or other disclosure of Confidential Information in this Litigation shall be sealed by
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`order of the Board. As stated in Paragraph 8 above, however, entire documents should not be
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`designated as “Confidential Information” if the confidential material can be redacted. Further,
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`entire pleadings must not be filed under seal. This Protective Order shall not preclude or
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`otherwise affect the offering or receipt of, or the objection to, evidence at trial. The signatories
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`reserve all rights to apply to the Board for protection with respect to the confidentiality or
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`testimony or other evidence at trial or any Board hearing.
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`14.
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`Counsel
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`shall
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`attempt
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`to
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`agree upon procedures
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`to protect
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`the
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`confidentiality of Confidential Information at any hearing or trial. Prior to such hearing or trial,
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`counsel shall submit proposed procedures, including any disputes relating thereto, to the Board
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`for its approval or modification.
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`15.
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`No person shall attend portions of depositions during which Confidential
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`Information is disclosed unless such person is an authorized recipient of Confidential
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`Information under the terms of this Protective Order.
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`If during the course of a deposition an
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`appropriate response to a question would require the disclosure of Confidential Information, the
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`witness may refuse to answer, or the party whose Confidential Information is being disclosed
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`may instruct the witness not to answer or not to complete his or her answer, as the case may be,
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`until any person who is not authorized to receive Confidential Information has left the room. If it
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`becomes necessary for a Party to use designated Confidential Information in a deposition of a
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`witness who would not be able to review such document or information because of the
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`restrictions of this Protective Order,
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`that witness will be able to review such document or
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`information during the deposition only in accordance with the following procedures. Counsel
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`taking the deposition shall
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`identify such Confidential Information to counsel for the Party
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`designating the same as confidential as soon as reasonably possible in advance of the deposition,
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`and no later than prior to beginning the deposition, outside the presence of the witness.
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`If the
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`designating Party's counsel objects to disclosure of the document or information to the witness,
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`the document or information will not be disclosed to the witness unless and until the witness has
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`been advised of the requirements of and given a copy of the Protective Order, and the witness
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`acknowledges on the record at such deposition that he or she understands this Protective Order,
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`and agrees to be bound by its terms. Such witness shall not be given a copy of any such
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`Confidential Information to take from the place of deposition nor shall the person be permitted to
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`make notes of or otherwise reproduce such Confidential Information. Nothing in this paragraph
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`shall
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`inhibit or restrict
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`the cross—examination of any officer, employee, former employee,
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`consultant or expert of a Party regarding Confidential Information produced by that Party.
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`Nothing in the paragraph shall prevent the disclosure of Confidential Information to current or
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`former employees of the producing party whose name is on the document designated as
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`confidential.
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`16. With respect to deposition testimony, counsel for any Party shall designate
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`that portion of the testimony related to Confidential Information as “Confidential” either orally at
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`the time it is given by so stating on the record or by written notification to opposing counsel
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`within ten (10) business days after receipt of the transcript from the court reporter. All
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`deposition testimony shall be treated as “Confidential
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`-- Outside Consultants Only” until
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`expiration of this ten—day period. A deponent or counsel for a deponent shall designate the
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`portions of the deponent's deposition that qualify as Confidential Information by page and line
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`number. The court reporter shall separately transcribe and bind those portions of the testimony
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`so designated as confidential and shall mark the face of the separately-bound transcript
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`containing such confidential testimony “Confidential.” If the transcript so marked is filed with
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`the Board, the same shall be filed under seal as set forth in Paragraph 13 above.
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`17. Whenever Confidential Information is introduced as exhibits, or otherwise
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`utilized, in connection with deposition testimony given in this Litigation, counsel introducing
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`such exhibits, or using such information in the examination of a witness, shall advise the reporter
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`that the portions of the testimony which refer thereto and the exhibits themselveslshall be
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`afforded confidential treatment pursuant to this Protective Order. The reporter shall separately
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`transcribe those portions of the testimony so designated, bind therewith the confidential exhibits
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`to which the testimony refers,
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`and mark the face of
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`the separately-bound transcript
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`“Confidential.” If the portion of the transcript so marked is filed with the Board, the same shall
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`be filed under seal as set forth in Paragraph 13 above. Witnesses being deposed, prior to any
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`disclosures of Confidential Information, shall state on the record that
`they have read this
`Protective Order, have executed the required affidavit, understand the Protective Order’s
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`provisions and agree to be bound thereby.
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`18.
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`Nothing contained in this Protective Order shall affect or restrict the rights
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`of the Producing Party with respect to Confidential Information.
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`19.
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`Upon the termination of the Litigation in any manner, including but not
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`limited to a final judgment entered herein or by a settlement, or in the case of an appeal, the date
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`when all appeals are resolved, any and all originals or copies of all or part of any and all
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`Confidential Information made by or for counsel, any designated expert witness involved in this
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`Litigation and/or any other person or entity to whom Confidential Information has been
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`disclosed, including notes, summaries, extracts or other memorandum or writings regarding the
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`contents of any and all Confidential Information shall,
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`upon request, be returned to the
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`producing party or, if the parties agree, promptly destroyed, except that outside counsel may
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`retain one copy of all documents filed with the Board, and one copy of all
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`transcripts of
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`depositions taken in the arbitration and their accompanying exhibits.
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`Such destruction, if
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`requested, shall be promptly certified in writing by affidavit of counsel for each Party.
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`“Promptly” as used herein means within thirty-one (31) calendar days after termination of the
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`Litigation.
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`20.
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`This Protective Order shall continue to be binding after the conclusion of
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`this Litigation, including appeals from any decision of the Board, except that a Party or non-
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`party may seek the written permission of the Producing Party or further order of the Board with
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`respect
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`to dissolution or modification of this Protective Order.
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`The Board shall
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`retain
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`jurisdiction to enforce or modify this Protective Order.
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`-10-
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`21.
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`The restrictions set forth in any of the preceding paragraphs shall not
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`apply to: i) any information which at the time of disclosure is available to the public; ii) any
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`information which after disclosure becomes available to the public through no act, or failure to
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`act, on behalf of the Receiving Party,
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`its counsel or independent consultant; or iii) any
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`information which the Receiving Party, its counsel or independent consultants can show (1) as a
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`matter of written record was already known to the Receiving Party from legitimate sources, (2)
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`as a matter of written record was independently developed by the Receiving Party, or (3) was
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`received after the time of disclosure hereunder from a third party having the right to make such
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`disclosure and was not required to be held in confidence. The burden of proof with respect to the
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`propriety or correctness in the designation of information as Confidential Information shall rest
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`on the Producing Party, except that the burden of proving the exceptions set forth above shall
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`rest on the Party asserting the exceptions.
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`22.
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`The failure
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`to designate
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`any Discovery Material
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`as Confidential
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`Information does not constitute a waiver of such claim, and a Producing Party may so designate
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`a document after such Discovery Material has been produced, with the effect that such Discovery
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`Material
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`is subject to the protections of this Protective Order on and after the date of its
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`designation.
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`23.
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`In the event any person subject to the terms of the Protective Order is
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`served with a subpoena or request for production of Confidential Information,
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`it will give
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`sufficient notice to the Producing Party to allow the Producing Party a reasonable opportunity to
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`intervene to oppose such production.
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`In no event shall the person receiving the subpoena or
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`other process produce Confidential Information of any Producing Party in response to the
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`subpoena or other process unless and until such person or party has:
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`(i) received written
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`-11-
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`authorization from counsel for the Producing Party to produce said Confidential Information; or
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`(ii) been ordered to do so by a court of competent jurisdiction.
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`24.
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`Entering into, agreeing to and/or producing or receiving Confidential
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`Information or otherwise complying with the terms of this Protective Order shall not:
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`(A)
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`Operate as an admission by any signatory that any particular
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`Confidential Information contains or reflects trade secrets or any other type of confidential
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`information;
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`(B)
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`Prejudice in any way the rights of the signatories to object to
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`documents or tangible things they consider not the subject of discovery, or operate as an
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`admission by any signatory that
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`the restrictions and procedures set forth herein constitute
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`adequate protection for any particular information deemed by any signatory to be Confidential
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`Information; or
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`(C)
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`Prejudice in any way the rights of a signatory to seek a
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`determination by the Board whether any Confidential Information has been properly designated
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`and should be subject to the terms of this Protective Order.
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`25.
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`Either a party to the pending action or an interested member of the public
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`may request a change in the designation of any Confidential Information. Such request shall be
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`in writing, stating the grounds therefor, and served on counsel for the Parties.
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`In the event that
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`the Parties cannot in good faith resolve their differences by agreement, the Party seeking the
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`change in designation of such Confidential Information shall by appropriate motion bring the
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`matter
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`to the attention of the Board.
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`Any such motion shall specifically identify the
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`document(s), portion of document, or other information as to which such relief is sought. Within
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`ten (10) business days, the Party who designated the document or information for confidential
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`-12-
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`treatment shall respond to the motion, by showing with particularity with respect to each
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`challenged document or item of Confidential Information the reasons why such document or
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`information has been properly designated for confidential
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`treatment, and why the further
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`disclosure or use of the particular document or information might result in harm or injury to the
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`designating Party. The proper designation of the challenged Confidential Information shall be
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`determined by reference to the same standard and burden as would have applied had the Party
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`producing the document moved for a Protective Order pursuant to Fed. R. Civ. P. 26(c). A
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`failure to challenge the propriety of a designation of confidentiality at the time the designation is
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`made shall not preclude or detract from a subsequent challenge thereto.
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`-13-
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`Dated: October 24, 2007
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`PHCP Inc.
`
` Robyn S Lederman, Esq.
`
`Daniel E. Bruso, Esq.
`Cantor Colbum LLP
`
`55 Griffin Road South
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`Bloomfield, CT 06002
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`(860) 286-2929
`(860) 286-0115 (facsimile)
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`LG International LLC
`
`
`
`Peter Peterson, Esq.
`DeLio & Peterson, LLC
`
`121 Whitney Avenue
`New Haven, CT 06510
`
`(203) 787-0595
`(203) 787-5818 (facsimile)
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`

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`-14-
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`

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`EXHIBIT A
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`This is to certify that the undersigned has read and is fully familiar with the
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`provision of the Protective Order governing confidentiality of discovery material, in the actions
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`entitled PHCP Inc.
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`v. LG International LLC, Opposition Nos. 91174927; 91174937 and
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`91175116, currently pending in the United States Patent and Trademark Office Trademark Trial
`
`and Appeal Board (the “Board”).
`
`As
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`a condition precedent
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`to my examination of Confidential
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`Information
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`produced pursuant to the Protective Order, or my obtaining any information derived from
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`Confidential Information, I hereby agree that the Protective Order shall be deemed to be directed
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`to and shall include me, that I shall observe and comply with the provisions of the Protective
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`Order, and that I shall be subject to the Board’s enforcement and jurisdiction for any violation or
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`attempted violation of the provisions of the Protective Order.
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`Name (Signature)
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`Name (Printed)
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`Relationship to or interest in this action
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`Dated:
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`SUBSCRIBED AND SWORN
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`BEFORE l\/H3 THIS
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`DAY OF
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`-15-
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`

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`CERTIFICATE OF SERVICE
`
`I certify that I served:
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`PROTECTIVE ORDER
`
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`on November 20 2007 by:
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`delivering
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`x
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`mailing (via First-Class mail)
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`a copy to:
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`Peter Peterson
`
`DeLio & Peterson, LLC
`
`121 Whitney Avenue
`New Haven, CT 06510
`
`Attorneys for Applicant