Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA179768
`ESTTA Tracking number:
`12/10/2007
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91177469
`Defendant
`H-Tech, Inc.
`ROBERT W. SMITH, ESQ.
`MCCARTER & ENGLISH, LLP
`4 GATEWAY CENTER 100 MULBERRY ST
`NEWARK, NJ 07102-4056
`UNITED STATES
`rsmith@mccarter.com
`Other Motions/Papers
`Robert W. Smith
`rsmith@mccarter.com, kknoll@mccarter.com
`/Robert W. Smith/
`12/10/2007
`Apple Motion to Extend.pdf ( 88 pages )(2286231 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`
`Opposition No. 91 177469
`
`Opposer
`
`vs.
`
`H—TECH, INC.,
`
`Applicant.
`
`'
`
`'
`
`In re: Application No. 78/780,888
`Published: January 23, 2007
`Applicant: H-Tech, Inc.
`Mark: AQUA POD
`
`
`
`U.S. Patent and Trademark Office
`
`Trademark Trial and Appeal Board
`P.O. Box 1451 A
`
`Alexandria, VA 22313-1451
`
`MOTION TO EXTEND
`DISCOVERY AND TRIAL PERIODS
`
`The discovery in this opposition is currently set to close on December 9, 2007. H-Tech,
`
`Inc. requests that such date be extended for .60 days, or until February 7, 2008, and that all
`
`subsequent dates be reset accordingly:
`
`30-day testimony period for party in position of
`plaintiff to close:
`
`30-day testimony period for party in position of
`defendant to close:
`
`May 7, 2008
`
`July 6, 2008
`
`15-day rebuttal testimony period to close:
`
`August 20, 2008
`
`The grounds for this request are that the Opposer has failed to provide any meaningful
`
`responses to Applicant’s discovery requests, and as a consequence, Applicant is unable to
`
`complete discoveryand testimony during the assigned period.
`
`Applicant has requested Opposer’s consent to this extension request, but Opposer has
`
`refused to consent.
`
`ME] 69'.v‘5339V,I
`
`

`
`3 l Et 33iHIEz
`
`Applicant submits herewith a Memorandum of Law and Declaration of Robert W. Smith
`
`in support of this Motion to Extend Discovery and Trial Periods.
`
`Date: December 10, 2008
`
`Respectfully submitted,
`
`By:
`
`egistrant
`Attorneys for
`Four Gateway Center
`100 Mulberry Street
`Newark, NJ 07102
`(973) 622-4444
`(973) 624-7070 (Fax)
`
`MEI 6975339v.l
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`APPLE INC,
`
`Opposition No. 91 177469
`
`Opposer,
`
`vs.
`
`H-TECH, lNC.,
`
`Applicant.
`
`In re: Application Ser. N. 78/780,888
`Published: January 23, 2007
`Applicant: H-Tech, Inc.
`Mark: AQUA POD
`
`
`
`MEMORANDUM OF LAW IN SUPPORT OF MOTION TO EXTEND
`
`DISCOVERY AND TRIAL PERIODS
`
`Applicant submits this Memorandum in support of its Motion to Extend
`
`Discovery and Trial Periods in this proceeding. Applicant seeks this relief due to
`
`Opposer’s utter failure to provide any meaningful discovery in response to Applicant’s
`
`discovery requests. As a result, Applicant seeks an extension of the discovery and trial
`
`periods in this proceeding to permit Applicant adequate time to resolve the deficiencies in
`
`Opposer’s discovery responses and conduct any required follow-up discovery based upon
`
`those responses.
`
`FACTUAL BACKGROUND
`
`On June 29, Applicant served its First Request for Production of Documents and
`
`First Set of Interrogatories upon Opposer (the “Requests”). On October 15, 2007,
`
`Opposer served wholly deficient responses to the Requests. Opposer’s responses failed
`
`to provide basic information to which Applicant is clearly entitled based upon Opposer’s
`
`claims in this proceeding.
`
`MEI 69754l3v.1
`
`

`
` 5
`
`On November 16, 2007, counsel for Applicant sent a letter to Opposer demanding
`
`that Opposer supplement its responses to the Request to provide all of the requested
`
`information. On November 29, 2007, counsel for Opposer advised that she had received
`
`that deficiency letter, but had not yet had an opportunity to respond. Counsel for
`
`Opposer advised that a response would be forthcoming, but Applicant has yet to receive
`
`any response.
`
`ARGUMENT
`
`1.
`
`Applicant is entitled to an Extension of the Discovery Period and
`Corresponding Trial Dates.
`
`Rule 6(b) of the Federal Rules of Civil Procedure states, in relevant part "[w]hen
`
`by these rules or by a notice given thereunder or by order of court an act is required or
`allowed to be done at or within a specified time, the court for cause shown may at any
`
`time in its discretion (1) with or without motion or notice order the period enlarged if
`
`request therefor is made before expiration of the period originally prescribed or as
`
`extended by a previous order. .
`
`. .“ F.R.C_.P. 6(b). In addition, § 509.01 of the Trademark
`
`Trial & Appeal Board Manual of Procedure (_1 st Edition, Sept. 1995) states that "[I]f the
`
`motion is filed prior to the expiration of the period as originally set or previously
`
`extended, the motion is a motion to extend, and the moving party need only show good
`
`cause for the requested extension." 1;
`
`The discovery period in this matter is set to close on Sunday, December 9, 2007.
`
`Applicant can show good cause in that Opposer has not fully complied with Applicant’s
`
`discovery requests and has yet to respond to Applicant’s deficiency letter. Applicant has
`
`diligently attempted to complete discovery within the applicable period, but has not yet
`
`received meaningful responses from Opposer to Applicant’s Requests.
`
`MEl_ 69754l3v.l
`
`i ii55EsEiil ll l
`
`ii
`
`iii15
`
`

`
`iE3
`35
`§5
`i2
`
`E5
`
`lSiE
`
`The requested extension is warranted. Applicant awaits a response to its
`
`deficiency letter. If Opposer’s response is inadequate, Applicant will be forced to file a
`
`motion to cornpel Opposer to provide complete responses to App1icant’s requests. In
`
`addition, once Applicant receives Opposer’s responses, Applicant has the right to take
`
`depositions and any follow—up discovery Applicant may require by reason of those _
`
`responses. If the requested extension is not granted, Applicant will be deprived of the
`
`opportunity to take depositions and seek other discovery that will be necessary to the
`
`discovery process.
`
`Thus, Opposer respectfully moves
`
`Board for an Order granting a 60 day
`
`extension of the discovery period and resetting all corresponding dates.
`
`Respectfully submitted,
`
`
`
`' ,...., up
`
`B_y:
`
`Four Gateway Center
`100 Mulberry Street
`Newark, NJ 07102
`
`(973) 622-4444
`(973) 624-7070 (Fax)
`
`Date: December 10,2007
`
`MEI 69754_l3v.1
`
`

`
`2J
`
`ii 3 ii5E1l EE 2F 1i>1 i;
`
`
`
`_‘.I.__.-.u-....-Aé44__...W...._..__....._.._,........._.M....,.._...,__,_,_,______,_______________________
`‘fi_m@@i__ _ _j__mw._w.u_w_______
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`APPLE INC.,
`
`Opposition No. 91177469
`
`Opposer,
`
`vs.
`
`H—TECH, IN_C.,
`
`In re: Application Ser. N. 78/780,888
`Published: January 23, 2007
`Applicant: H-Tech, Inc.
`Mark: AQUA POD
`
`Applicant.
`
`
`DECLARATION OF ROBERT W. SMITH IN SUPPORT OF MOTION TO EXTEND
`DISCOVERY AND TRIAL PERIODS
`
`Robert W. Smith, declares, pursuant. to 28 U.S.C. § 1746, as follows:
`
`1. I am an attorney of the State of New Jersey and am a partner in the firm of McCarter
`
`& English, LLP.
`
`I submit this Declaration in support of Applicant’s motion to compel for
`
`extension of discovery and trial dates.
`
`2. Appiicant’s First Request to Opposer for Production of Documents and Applicant’s
`
`First Set for Interrogatories to Opposer, served June 26, 2007, are attached hereto as Exhibit A
`
`(the “Requests”).
`
`3. Opposer served its responses to the Requests on October 15, 2007. A copy of
`
`Opposer’s responses are attached hereto as Exhibit B. Those responses were deficient and failed
`
`to provide basic responsive information to which Applicant is plainly entitled.
`
`4. On November 16, 2007, I sent counsel for Opposer a letter outlining the deficiencies
`
`in Opposer’s responses and requesting that Opposer provide complete and adequate responses to
`
`ME] 6975648v.l
`
`

`
`the Requests, or otherwise respond to the deficiency letter by December 1, 2007. A copy of that
`
`letter is attached hereto as Exhibit C.
`
`5. On November 29, 2007, counsel for Opposer advised that it could not provide a
`
`detailed response by December 13‘ and that aidetailed substantive response would follow
`
`thereafter. A copy of that letter is attached hereto as Exhibit D.
`
`10. Based upon the foregoing, Applicant is unable to complete discovery by December
`
`9, 2007, and respectfully requests that the Board grant a 60 day extension ofthe discovery period
`
`and all other dates in this proceeding.
`
`I declare under penalty of peljury that the foregoing is true and correct.
`
`Executed this 10th day of December, in Newark, New Jersey.
`
`
`
`MEI 6975648v.I
`
`

`
`
`

`
`[Q/ICCARTER
`
`I ENGLISH
`ATTORNEYS AT LAW
`
`June 29, 2007
`
`VIA OVERNIGHT MAIL
`
`Margaret C. McHugh, Esq.
`Townsend and Townsend and Crew LLP
`
`Two Embarcadero Center, Eighth Floor
`San Francisco, California 94111-3834
`
`Re:_ Apple, inc. v. H—Tech, lno.
`AQUA POD
`
`Opposition No. 91177469
`Your File: 020750-077200US
`
`Dear Ms. McHugh:
`
`We enclose and serve upon Apple, Inc. the following:
`
`1. Applicant's First Set of interrogatories; and
`
`2. Applicant's First Request for the Production of Documents and Things.
`
`Very truly yours,
`
`1W“
`
`Kelly J. Garrone
`
`ME1 6549T59V.1
`
`Kelly J. Garrone
`T. 973.639.5954
`F. 973.297.3973
`kgarmne@mcc.arter.com _
`
`Mccarter & English, LLP
`Four Gateway Center
`100 Mulberry Street
`P.0. Box 652
`
`Newark, NJ 07102
`T. 973.622.4444
`F. 973.624.7070
`vwnv.mccarter.oom
`
`BALTIMORE
`
`BOSTON
`
`HARTFORD
`
`NEW YORK
`
`NEWARK
`
`PHILADELPHIA
`
`STAMFORD
`
`WILMINGTON
`
`

`
` % ll
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`APPLE, INC.
`.
`
`V.
`
`.
`
`Opposition No. 91 177469
`
`Opposer,
`
`H-TECH, INC.
`
`_
`
`Applicant.
`
`APPLICANTS FIRST REQUEST FOR THE
`PRODUCTION OF DOCUMENTS AND THINGS
`"I Pursuant to the Trademark Rules ofPractice and the applicable Federal Rules ofCivil
`
`Procedure, Applicant requests that Opposer, by an officer or agent thereof, serve a written
`
`response to this request within thirty (30) days of the date of service of this request as provided
`
`in said Rules, and that Oppose: produce the documents and things specified below for inspection
`
`and copying by Applicant at the Offices of McCarter & English, LLP, Four Gateway Center, 100
`Mulberry Street, Newark, New Jersey 07101.
`A
`
`I
`
`DEFINITIONS AND INSTRUCTIONS
`
`1.
`
`As used herein, the term "person" as well as pronouns referring thereto
`
`shall includefjuristic persons as well as natural persons.
`2.
`A
`"Applicant" means and shall refer to the Applicant herein, H-Tech, Inc.,
`
`and each of its predecessors, directors, officers, employees, agents and attorneys, and each
`
`person acting on his behalf or under his control.
`
`MEI 6515258v.2
`
`

`
`3.
`
`"Opposer" means and shall refer to the Opposer herein, Apple, Inc., and
`
`each of its predecessors, directors, officers, employees, agents and attorneys and each person
`
`acting on its behalf or under their control.
`
`4.
`
`“Opposer’s Marks” means all marks asserted by Opposer in Opposer’s
`
`Notice of Opposition, filed 5/23/07, including the marks IPOD, Reg. No. 2,835,698; IPOD, Reg.
`
`No. 3,089,360; IPOD, application Serial No. 78/521,796; IPOD, application Serial No.
`
`78/653,661; IPOD, application Serial No. 78/653,669; IPOD, application Serial No. 78/653,667;
`
`POD, application Serial No. 78/459,101; and IPODCAST, application Serial No. 78/706,746.
`
`5.
`
`"Documents" as used herein shall mean every original and every non-
`
`identical copy of any original of all mechanically written, handwritten, typed or printed material,
`
`electronically stored data, microfilm, microfiche, sound recordings, films, photographs, slides,
`
`and other physical objects of every kind and description, including but not limited to, all
`
`transcripts, letters, notes, memoranda, tapes, records, telegrams, periodicals, pamphlets,
`brochures, circulars, advertisements, leaflets, reports, research studies, test data, working papers,
`
`drawings, maps, sketches,.diagra1'nS, blueprints, graphs, charts, diaries, logs, agreements,
`
`contracts, rough drafts, analyses, ledgers, inventories, financial information, books of account,
`
`. understandings, minutes of meetings, minute books, resolutions, assignments, computer
`
`printouts, purchase orders, invoices, bills of lading, written memoranda or notes of oral
`
`communications, and any other tangible thing of whatever nature."
`
`6.
`
`"Documents relating to" means documents which embody, reflect,
`
`include, discuss, or otherwise concern the subject matter at issue.
`
`7.
`
`Any word written in the singular shall be construed as plural or vice versa
`
`when necessary to facilitate the answer to a request to produce.
`
`MEI 6SlS258v.2
`
`mmm—mnm~mmmn-mm-—m—-—————_———_._.____._____.______.___.._m_m._u
`
`

`
`31
`
`3iziI i
`
`8.
`
`As to any document that Opposer refuses to produce, supply a description
`
`of the document by date, author, addressee, custodian and subject matter sufficient to allow a
`
`motion for production of said document. If the refiisal to produce is based upon a claim that the
`
`document is subject to privilege (including attorney work-product), specify (a) the nature of the
`
`privilege claimed, (13) the identity of the person making the communication, (c) the identity of
`
`each person present while the communication was made, (cl) the date and place of the
`
`communication, (e) the general subject of the communication, and (t) the Request to which the
`
`withheld information is responsive.
`
`9.
`
`If a document once existed but has been destroyed, identify the document,
`
`and state when it was destroyed and the circurnstances under which it was destroyed.
`
`10.
`
`As to any documents produced, identify the request(s) to which the
`
`doctunents are responsive.
`
`11.
`
`"These requests for production shall be deemed to be continuing and to
`
`require supplemental or amended answers so that any information responsive to these requests
`
`which Opposer acquires or that becomes known to Opposer throughout this opposition shall be
`
`furnished to Applicant immediately after such documents or things is acquired or becomes
`
`known.
`
`RE UESTS
`
`1.
`
`All documents relating to any applications seeking registration of each of
`
`Opposer’s Marks in the United States.
`
`2.
`
`All documents relating to Opposefs decision to offer or sell goods and
`
`services in connection with each of 0pposer’s Marks in the United States.
`
`MEI 65l5258v.2
`
`

`
`
`
`3.
`
`For each of Opposer’s Marks, all representative documents showing each
`
`and every manner or purpose, or intended manner or purpose, in which Opposer has used or
`
`intends to use the mark in the United States.
`
`4.
`
`Representative specimens of each actual product, label, container, trade
`
`dress, wrapper, packaging used or to be used by Opposer for products (or brochures, inserts, and
`
`promotional material, with regard to services) sold in connection with each of Opposer’s Marks
`
`in the United States.
`
`5.
`
`All documents relating to the identity of geographical areas in the United
`
`States where Opposer has sold or offered for sale or intends to offer for sale its products and
`
`services in connection with each of 0pposer’s Marks, and the length of time during which each
`
`such product or service was marketed or sold in each area.
`
`6.
`
`All documents relating to the identity of the charmels of trade through
`
`which Opposer has offered or sold, or intends to offer or sell, each product and service in
`
`connection with each of Opposer’s Marks to purchasers or to the trade generally.
`
`7.
`
`Representative samples of the trade dress used by Opposer regarding each
`
`product sold in connection with each of Opposer’s Marks (“Opposer’s Trade Dress’).
`
`8.
`
`All documents relating to the alleged distinctiveness of Opposer’s Trade
`
`Dress.
`
`9.
`
`All documents relating to the identity of representative outlets in the
`
`United States through which Opposer's products and services in connection with Opposer’s
`
`Marks have been sold, offered or will be provided to purchasers or to the trade generally.
`
`MEI 65l5258v.2
`
`

`
` 5 i5E i.
`
`l 1
`
`10.
`
`All documents relating to the identity of representative purchasers in the
`
`United States who have purchased Opposer's products and services sold in connection with each
`
`of Opposer’s Marks.
`
`11.
`
`All documents relating to 0pposer's yearly dollar and unit volume of sales
`
`to date in the United States for each of its products and services sold in connection with each of
`
`Opposer’s Marks from the date of their first sale to the present.
`
`12.
`
`All documents relating to Opposer's past, present and future marketing
`
`plans for its products and services sold in connection with Opposer’s Marks in the United States.
`
`13.
`
`Representative specimens of all past, current or prospective advertising
`
`and promotional materials for Opposefs products and services sold in connection with Opposer’s
`
`Marks in the United States.
`
`14. Z All documents relating to Opposer's total yearly expenditures to date and
`
`planned future ex'penditures with respect to each type of advertising and promotion used in
`
`regard to its products and services sold in connection with Oppo'ser’s Marks in the United States.
`
`15.
`
`All documents referring orrelating to any contracts, agreements,
`
`assigmnents, licenses, or other transfer of title, or other interest to or from Opposer of any right
`
`in Opposer’s Marks.
`
`16.
`
`All documents sent to or received from any third party relating to the use
`
`by Opposer of 0pposer’s Marks.
`
`17.
`
`All documents relating to any instances of actual or possible consumer
`
`confusion, mistake, deception or association of any kind between Opposer or Opposer's products
`
`and services, and "Applicant or Applicant's products, including "but not limited to confusion
`
`relating to Opposer’s Marks and Applicant’s AQUA POD mark.
`
`MEI 65I5258\-12.
`
`‘9'
`33
`
`3l:l
`
`l 2E
`
`-——--n-...._......__.__,,__..____._____.:_____._......,,,,..,.
`
`

`
` i l5: i i EEI
`
`18.
`
`All documents relating to any formal or informal trademark searches or
`
`investigations regarding marks that consist of or include the term POD or IPOD in the United
`
`States.
`
`19.
`
`All documents relating to any formal of informal market studies, surveys,
`
`focus groups or other studies regarding any of Opposer’s Marks or Applicant’s AQUA POD
`
`mark in the United States.
`
`20.
`
`All documents relating to the alleged fame of Opposer’s IPOD mark.
`
`2 I.
`
`Ail documents relating to all demographic information known to Opposer
`
`about customers or potential customers for each product and service sold in connection with
`
`Opposer’s Marks.
`
`22.
`
`All writtendirectives, manuals of instruction, or other documents which
`
`set forth the Opposer‘s procedures for adopting new products or services and trademarks and
`
`service marks.
`
`23.
`
`All documents relating to any obj ection, iitigation, proceeding or other
`
`disputes respecting Opposeris use or application for registration of marks that include the term
`
`POD.
`
`24.
`
`All documents relating to any present or former third party use of any
`
`name, mark or term comprised in whole oruin part of POD or any variations thereof.
`
`25.
`
`All reports, charts graphs, and opinions prepared, written or authored by
`
`any expert whom you expect to testifir at trial.
`
`26.
`
`All written statements or notes of conversations with any witnesses
`
`relating in any way to the facts and matters alleged in the Notice of Opposition.
`
`MEI 6515258v.2
`
`

`
`27.
`
`All documents relating to Opposer’s statement in paragraph 8 of
`
`Opposer’s Notice of Opposition that “[b]y virtue of Opposer’s extensive use and promotion of
`
`Opposer’s Marks, Opposer has established valuable goodwill in the marks, and the public has
`
`come to associate the IPOD and POD marks with Opposer. As such, the public has come to
`
`know IPOD and POD as an indication of products and services that originate from Opposer."
`
`28.
`
`All documents relating to 0pposer’s statement in paragraph 9 of
`
`0pposer’s Notice of Opposition that “[a]s a result of Opposer’s extensive advertising, sales, and
`
`marketing, Opposer’s IPOD mark is famous and well known to purchasers.”
`
`29.
`
`A All documents relating to Opposer’s statement in paragraph 15 of
`
`Opposer’s Notice of Opposition that “the likelihood of consumer confusion is increased by the
`
`trade dress Applicant uses for its product, which resembles one or more of the distinctive trade
`
`dresses Opposer has used for its IPOD device.”
`
`30.
`
`All documents relating to Opposer’s statement in paragraph 16 of
`
`0pposer’s Notice of Opposition that “[t]he IPOD mark was famous at the time Applicant filed
`
`the Application for the AQUA POD mark and when Applicant first commenced use of this
`
`mark.”
`
`31.
`
`All documents relating to Opposer’s statement in paragraph 17 of
`
`Opposer’s Notice of Opposition that “[r]egistration of the mark shown in the Applicant and use
`
`ofApplicanfs mark are likely to dilute Opposer’s famous lPOD mar .”
`
`32.
`
`All documents that relate to Opposer’s allegations that Applicant’s AQUA
`
`POD mark is likely to be confirsed with Opposer’s Marks.
`
`MEI 65l5253v.2
`
`

`
`33.
`
`All documents that are responsive to Applicant's First Set of
`
`Interrogatories, but that are not part of any response to one of the above requests for production.
`
`H-Tech, Inc., Applicant
`
`By
`
`i
`
`Robert W. Smith
`
`Attorneys for Applicant
`McCarteI & English, LLP
`4 Gateway Center
`100 Mulberry Street
`Newark, New Jersey 07102
`(973) 622-4444
`
`Date: June 29, 2007
`
`MEI 6515258v.2
`
`

`
` 3
`
`2i E
`
`CERTIFICATE OF SERVICE
`
`The undersigned hereby certifies that the original of the foregoing APPLICANT'S FIRST
`
`REQUEST FOR THE PRODUCTION OF DOCUMENTS AND THINGS has been served by
`
`overnight mail this 29th day of June, 2007, at the following address:
`
`Margaret C. McHugh, Esq.
`Townsend and Townsend and Crew LLP
`Two Embarcadero Center, 8”‘ Floor
`San Francisco, CA 9411 1-3 834
`
`/he
`
`
`MEI 65l5258V.2
`
`

`
`ES l1
`
`M IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`APPLE, INC.
`
`V.
`
`H-TECH, INC.
`
`Opposer,
`
`Applicant.
`
`Opposition No. 91177469
`
`APPLICANTS FIRST SET OF INTERROGATORIES
`
`Pursuant to the Trademark Rules ofPractice and the applicable Federal Rules of Civil
`
`Procedure, Applicant requests that Opposer, by an officer or agent thereof, answer the following
`interrogatories fully and separately in writing under oath within thirty (30) days of service hereof
`
`as provided in said Rules.
`
`DEFINITIONS AND INSTRUCTIONS
`
`1. As used herein, the term "person" as well as pronouns referring thereto shall
`
`include juristic persons as well as natural persons.
`
`2.
`
`"Applicant" means and shall refer to the Applicant herein, H-Tech, Inc., and
`
`each of its predecessors, directors, officers, employees, agents and attorneys, and each person
`
`acting on his behalf or under its control.
`
`3.
`
`"0pposer" means and shall refer to the Opposeriherein, Apple, Inc., and each
`
`of its predecessors, directors-, officers, employees, agents and attorneys and each person acting
`
`I
`
`on its behalf or under its control.
`
`-
`
`ME] 651S256V.2
`
`

`
` <lS
`
`- .
`
`
`
`
`
`4. “Opposer’s Marks” means all marks asserted by Opposer in Opposer’s Notice
`
`of Opposition, filed 5/23/07, including the marks IPOD, Reg. No. 2,835,698; IPOD, Reg. No.
`
`3,089,360; IPOD, application Serial No. 78/521,796; IPOD, application Serial No. 78/653,661;
`
`IPOD, application Serial No. 78/653,669; IPOD, application Serial No. 78/653,667; POD,
`
`application Serial No. 78/459,101; and IPODCAST, application Serial No. 78/706,746.
`9
`5.
`"Documents" as used herein shall mean every original and every non-identical
`
`copy of any original of all mechanically written, handwritten, typed or printed material,
`
`electronically stored data, microfilm, microfiche, sound recordings, films, photographs, slides,
`
`and other physical objects of every kind and description, including but not limited to, all
`
`transcripts, letters, notes, memorancla, tapes, records, telegrams, periodicals, pamphlets,
`
`brochures, circulars, advertisements, leaflets, reports, research studies, test data, working papers,
`
`drawings, maps, sketches, diagrams, blueprints, graphs, charts, diaries, logs, agreements,
`
`contracts, rough drafts, analyses, ledgers, inventories, financial information, books of account,
`
`understandings, minutes of meetings, minute books, resolutions, assignments, computer
`
`printouts, purchase orders, invoices, bills of lading, writtenlmemoranda or notes of oral
`
`cornrnunications, and any other tangible thing" of whatever nature.
`
`6. Any word written in the singular" shall be construed as plural or vice versa
`
`when necessary to facilitate the answer to an interrogatory.
`
`7.
`
`As to any document or other information that Opposer refuses to produce,
`
`supply a description ofthe document by date, author, addressee, custodian and subject matter
`
`sufficient to allow a motion for production of said document or information. If the refusal to
`
`produce is based upon a claim that the document or information is subject to privilege (including
`
`attorney work-product); specify (a) the nature of the privilege claimed, (b) the identity of the
`
`MEI 65l5256v.2
`
`
`
`'.-_'“““%“*%‘ ——j——¢_.m.~.mw.M.mm _____________
`
`

`
`i E i EE E EE E
`
`i 1
`
`A person making the communication, (c) the identity of each person present while the
`
`communication was made, (d) the date and place of the communication, (e) the general subject
`
`of the communication, and (f) the Request to which the withheld information is responsive.
`
`8.
`
`If a document once existed but has been destroyed, identify the "document,
`
`and state when it was destroyed and the circumstances under which it was destroyed.
`
`9. These interrogatories shall be deemed to be continuing and to require
`
`supplemental or amended answers so that any information responsive to these interrogatories
`
`ewhich Opposer acquires or that becomes known to Opposer throughout this opposition shall be
`
`furnished to Applicant immediately after such information is acquired or becomes known.
`
`MEI 65152S6v.2
`
`

`
`INTERROGATORY NO. 1
`
`WTERROGATORIES
`
`(a)
`
`State the date and place where the Opposer’s business was founded, and describe
`
`the nature of its legal status, whether corporate, partnership, joint venture, familial organization
`
`or otherwise.
`
`(b)
`
`State the address of the Opposer’s principal place of business and describe the
`
`general business activities which occur there.
`
`(c)
`
`Identify by name and address each person who occupiesor has occupied any
`
`executive or managerial position within Oppo ser’s organizational structure for the past ten (10)
`years relating in any way to portable and handheld digital electronic devices for recording,
`
`organizing, transmitting, manipulating, and reviewing audio files, computer software for use in
`
`organizing, transmitting, manipulating and reviewing audio files on portable and handheld digital
`
`electronic devices, or similar products marketed or sold, or proposed to be marketed and sold,
`
`including all products and services sold under the mark IPOD, POD and IPODCAST, and state
`
`the inclusive dates during which each such person held or is holding each such position, his or
`
`her title, responsibilities, and duties.
`
`(d)
`
`State whether the Opposer or its business is now or has ever been a division,
`
`subsidiary, or related company to any other company. If so, identify each other company, and
`
`for each company so identified, state the relationship between it and the Opposer, and state the
`
`dates on which the relationship began and, if applicable, ended.
`
`(e)
`
`For Opposer’s Marks, state the address of each of the Opposer’s place of business
`
`which are, have been, or is intended to be involved in any way with the manufacture, sale,
`
`‘MEI 65l52S6v.2
`
`

`
`distribution, or advertising of the goods or services with which the marks have been, are intended
`
`to be, or are associated.
`
`(i)
`
`For each of Opposer’s Marks, identify the person or persons performing or
`
`intended to perform each of the following functions for the Opposer with respect to the goods or
`
`services associated with the mark: sales manager, advertising manager, custodian of records and
`
`files, chief bookkeeper, accountant, and trademark manager.
`
`INTERROGATORY N0. 2
`
`Identify each person having information relating to Opposer’s use of Opposer’s Marks in
`
`the United States.
`
`INTERROGATORY NO. 3
`
`For each of Opposer’s Marks, describe each product or service that has been sold or
`
`offered by Opposer in the United States, by stating for each such product or service:
`
`(a)
`
`(b)
`
`the generic name of the product or service;
`
`the date the product or service was first sold or provided in interstate or in
`
`commerce with the United States;
`
`(c)
`
`the geographic area in which each suchproduct or service has been sold or
`
`provided by Opposer;
`
`(d)
`
`the approximate price or intended price to be paid by the consumer for each such
`
`product or service; and
`
`(e)
`
`the date or dates when the sale of the product was discontinued, and the reasons
`
`for such discontinuance.
`
`' MEI 6515256v.2
`
`

`
`INTERROGATORY NO. 4
`
`Describe in detail the trade channels for each product and service sold or offered for sale
`
`in the United States in connection with Opposer’s Marks, from Opposer to the ultimate end users
`
`of such product or service.
`
`INTERROGATORY NO. 5
`
`Identify by type each end user that has used or uses each product or service sold or
`
`offered for sale in connection with Opposer’s Marks in the United States.
`
`INTERROGATORY NO. 6
`
`Identify each type of retail or other business outlet in the United States which currently
`
`sells or offers for sale to the public or trade each product or service sold in connection with
`
`Opposer’s Marks.
`
`INTERROGATORY NO. 7
`
`State each media currently-being used by Opposer to advertise or promote in the United
`
`States each of its products or services sold in connection with Opposer’s Marks and identify
`
`three (3) representative advertisers names for each such media.
`
`INTERROGATORY NO. 8
`
`State Opposer’s jrearly proposed projected dollar and unit volume of sales in the United
`
`States for each of the products and services sold in connection with each of Opposer’s Marks
`
`from the date of first use in the United States up tothe present time. For each such")/ear or
`
`accounting period identify all documents relating to such volume of sales.
`
`INTERROGATORY NO. 9
`
`Identify each advertising, public relations or marketing agency, or any other outside firm
`
`used by Opposer in connection with its advertising, promotion, distribution and sale in the
`
`MEI 65l52S6v.2
`
`

`
`United States of eachproduct or services sold in connection with Opposer’s Marks, and identify
`
`the person at such agency in charge of Opposer’s account by name, address and title; and the
`
`inclusive dates during which Opposer’s used or has used such agency.
`
`INTERROGATORY NO. 10
`
`Identify each license or assignment agreement into which Opposer has entered involving
`
`the use of any of Opposer’s Marks by stating for each:
`
`(a)
`
`the name and address of each person who is or was a party to such agreement or
`
`license;
`
`(13)
`
`(0)
`
`and
`
`the inclusive dates of any such agreement or license;
`
`the marks and the products that are the subject of any such agreement or license;
`
`(d)
`
`the purpose of the license or agreement.
`
`INTERROGATORY NO. 11
`
`With respect to trade or professional shows, identify all documents relating to the
`
`Opposer’s past, current andprospective advertising and/or promotion ofOpposer’s Marks on or
`
`in connection with the Opposer’s goods or services." "State with respect to each such
`
`advertisement or promotion:
`
`(a)
`
`(b)
`
`its location, time and duration and sponsor;
`
`the identity of all individuals involved in the preparation and/or participation of
`
`Opposer in the show;
`
`(c)
`
`a brief description of the exhibits or other advertising used or to be used at the
`
`show; and
`
`(d)
`
`the location and identification of all exhibits used or to be used at the show.
`
`MEI ss1s2s6v.2
`
`
`
`..._..._.._-._....__.._...__._....._.._._._...__...___._.__,‘.A
`
`

`
` ; llil5V
`
`INTERROGATORY N0. T 12
`
`Identify each trademark search, clearance or other inquiry in the United States conducted
`
`by or on behalf of Opposer or of which Opposer has otherwise become awarethat referred or
`related to any designation comprising or incorporating the term POD by stating for each such
`
`search or other inquiry:
`
`(a)
`
`the date, or if not possible, the approximate date of such trademark search,
`
`clearance or other inquiry;
`
`_
`
`(b)
`
`the name, address, title and employer of the person who conducted such
`
`trademark search, clearance or other inquiry;
`
`(c)
`
`the name, address, title and employer of the person who authorized such
`
`trademark search, clearance or other inquiry, the owner or apparent owner thereof, and the
`
`goods, services, business or apparent goods, services or business assoc