Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA599247
`ESTTA Tracking number:
`04/17/2014
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91213225
`Plaintiff
`Rush University Medical Center
`ULRIKA E MATTSSON
`MCDERMOTT WILL & EMERY LLP
`227 WEST MONROE, SUITE 4400
`CHICAGO, IL 60606
`UNITED STATES
`jmikulina@mwe.com, dsliwka@mwe.com, mweipdocket@mwe.com,
`lbalsan@mwe.com, umattsson@mwe.com, kwalsh@mwe.com,
`chicago_ip_docket@mwe.com
`Other Motions/Papers
`Ulrika E. Mattsson
`ipdocketchicago@mwe.com, jmikulina@mwe.com, umattsson@mwe.com,
`kwalsh@mwe.com
`/Ulrika E. Mattsson/
`04/17/2014
`rush protective order.pdf(332670 bytes )
`
`Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`
`Signature
`Date
`Attachments
`
`

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`IN THE UNETEI) STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AN? APPEAL BOARD
`
`In the matter of trademark appiication Serial No. 85/850,446
`For the mark RUSH
`
`Rush University Medical Center,
`
`Opposer,
`
`V.
`
`Opposition No. 91213225
`
`Ability Dynamics, LLC,
`
`Appiicant.
`
`STIPULATED PROTECTIVE ORDER
`
`Information disclosed by any party or nornparty witness during this proceeding may be
`considered confidential, a trade secret, or commercially sensitive by a party or witness. To
`preserve the confidentiality of the information so disclosed, the parties have agreed to be bound
`by the terms of this Stipulated Protective Order (the “Order”). As used in this Order, the term
`“information” covers both orai testimony and documentary material.
`
`The signatures of the parties’ attorneys at the conclusion of the Order indicate the parties’
`agreement with this Order. The terms are binding from the date the parties’ attorneys sign the
`order.
`
`1)
`
`Classes of Protected Information.
`
`TERMS OF ORDER
`
`The Rules of Practice in Trademark Cases provide that alt inter parties proceeding files, as well.
`as the involved registration and application flies, are open to public inspection. The terms of this
`Order are not to be used to undermine pubiic access to fries. When appropriate, however, a party
`or witness, on its own or through its attorney, may seek to protect the confidentiaiity of
`information by ernpioying one of the following designations.
`
`a.
`
`Confidential-———Material to be shieidcd by the Board from public access.
`
`Highly Corifiderzti-al~—Material to be shieided by the Board from public access
`b.
`and subject to agreed restrictions on access even as to the parties and/or their attorneys.
`
`Trade Secret/Commercially Sensitive—~«Material to be shielded by the Board
`c.
`from public access, restricted from any access by the parties, and avaiiable for review by outside
`counsei for the parties and, subject to the provisions of Paragraphs 4 and 5, by independent
`experts or consultants for the parties.
`
`DM_US 49752454-l.006093.0437
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`

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`2)
`
`Information Not to Be Designated as Protected.
`
`Information may not be designated as subject to any form of protection if it (a) is, or becomes,
`public knowledge, as shown by pubiicly availabie writings, other than through violation of the
`terms of this document; (13) is acquired by a non-designating party or nonparty witness from a
`third party lawfully possessing such information and having no obligation to the owner of the
`information; (c) was lawfully possessed by a nomdesignating party or non-party witness prior to
`the opening of discovery in this proceeding, and for which there is written evidence of the lawful
`possession; (d) is disclosed by a non-designating party or non—party witness legally compelled to
`disclose the information; or (e) is disclosed by a noredesignatiiig party with the approvai of the
`designating party.
`
`For purposes of this Order, specific disclosures of information, including but not limited to,
`disclosures as to marketing practices and techniques, advertising, operating procedures,
`operating conditions, financial data, and the like, shall not be deemed to fall within one of the
`exclusions listed above merely because such specific disclosures are embraced by more general
`information in the pubiic domain or in the possession of the receiving party.
`
`3)
`
`Access to Protected Information.
`
`Designated information shall be held in confidence by each authorized person to whom the
`information is disclosed, shall be carefully maintained so as to preclude access by persons who
`are not authorized under this order to receive such information, and shall be handied and used in
`accordance with the terms of this Order for the limited purpose of prosecuting or defending the
`claims relevant to this proceeding. The provisions of this Order regarding access to protected
`information are subject to modification by written agreement of the parties or their attorneys, or
`by motion filed with and approved by the Board.
`
`Judges, attorneys, and other employees of the Board are bound to honor the parties’ designations
`of information as protected but are not required to sign forms acknowledging the terms and
`existence of this Order.
`
`a.
`
`Definitions
`
`“Parties” means the Opposer and the Applicant in this proceeding, and includes their officers
`and employees,
`
`“Attorneys” for parties include in~house counsel and outside counsel, including support staff
`operating under counsel’s direction, such as paralegals or legal assisiants, secretaries, and any
`other employees or independent contractors operating under counsel’s instruction.
`
`“Independent Experts” or “Consuitarits” include individuals retained by a party for purposes
`reiated to prosecution or defense of the proceeding but who are not otherwise employees of
`either the party or its attorneys.
`
`“Non-party witnesses” inciude any individuals to be deposed during discovery or trial, whether
`willingly or under subpoena issued by a court of competent jurisdiction over the witness.
`
`DM_US 49752454-I .O06G93.043T
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`

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`b.
`
`Access to Information
`
`Parties and their attorneys shall have access to information designated as Confidential or
`Highly Confidential, subject to any agreed exceptions.
`
`Outside counsel, but not in-house counsel, shall have access to information designated as Trade
`Secret/Commercially Sensitive.
`
`Independent Experts or Consultants, Nomparty Witnesses, and any other individual not
`otherwise specifically covered by the terms of this order may be afforded access to Confidential
`or Highly Confidential information in accordance with the terms that follow in Paragraphs 4
`and 5. Further, Independent Experts or Consuitants may have access to Trade
`Secret/Commercialiy Sensitive information if such access is agreed to by the parties or ordered
`by the Board, in accordance with the terms that follow in Paragraphs 4 and 5.
`
`4)
`
`Disclosure to Service Providers.
`
`The Parties may disclose protected information, as necessary to prosecute or defend issues
`related to this proceeding, to individuals incidental to prosecuting or defending the issues in this
`proceeding (except for Independent Experts or Consultants), such as court reporters,
`stenographers, video technicians, photocopy service providers, and employees of litigation
`support firms, who will be bound to the terms of this Order oniy to the extent that the parties or
`their attorneys make it a condition of empioyrnent.
`
`5)
`
`Disclosure to Independent Experts or Consultants.
`
`Any party or attorney proposing to share disciosed information with an Independent Expert or
`Consultant must aiso notify the party which designated the information as protected. Notification
`must be personally served or forwarded by certified mail, return receipt requested, and shali
`provide notice of the name, address, occupation and professional background of the expert or
`independent consultant.
`
`The party or its attorney receiving the notice shali have ten (3 0) business days to object to
`disclosure to the expert or independent consultant. if objection is made, then the parties must
`negotiate the issue before raising the issue before the Board. Ifthe parties are unable to settle
`their dispute, then it shall be the obiigation of the party or attorney proposing disclosure to bring
`the matter before the Board with an explanation of the need for disclosure and a report on the
`efforts the parties have made to settle their dispute. The party objecting to disclosure will be
`expected to respond with its arguments against disclosure or its objections will be deemed
`waived.
`
`If no objection is made or the party objecting to disclosure waives its objections or the Board
`orders disclosure, prior to disciosure, the disclosing party must inform the Independent Expert or
`Consultant of the existence of this order, and the independent Expert or Consultant must certify
`in writing that the Order has been read and understood and that the terms shall be binding on the
`Independent Expert or Consultant. No Independent Expert or Consultant shall receive any
`protected information until the Party or Attorney proposing to disclose the information has
`received the signed certification from the independent Expert or Consultant. A form for such
`
`DM__US 497524S4- I 006093.043?
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`-3-
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`certification is attached to this Order. The Party or Attorney receiving the completed form shall
`retain the original.
`
`6)
`
`Responses to Written Discovery.
`
`Responses to interrogatories under Federal Rule 33 and requests for admissions under Federal
`Rule 36, and which the responding party reasonably believes to contain protected information
`shall be prominently stamped or marked with the appropriate designation from Paragraph 1. Any
`inadvertent disclosure without appropriate designation shall be remedied as soon as the
`disclosing party learns of its error, by informing all adverse parties, in writing, of the error. The
`parties should inform the Board only if necessary because of the filing of protected information
`not in accordance with the provisions of Paragraph 12.
`
`7)
`
`Production of Documents.
`
`If a party responds to requests for production under Federal Rule 34 by making copies and
`forwarding the copies to the inquiring party, then the copies shall be prominently stamped or
`marked, as necessary, with the appropriate designation from Paragraph 1. If the responding party
`makes documents available for inspection and copying by the inquiring party, all documents
`shall be considered protected during the course of inspection. After the inquiring party informs
`the responding party what documents are to be copied, the responding party will be responsible
`for prominently stamping or marking the copies with the appropriate designation from Paragraph
`1. Any inadvertent disclosure without appropriate designation shall be remedied as soon as the
`disclosing party learns of its error, by informing all adverse parties, in writing, of the error. The
`parties should inform the Board only if necessary because of the fiiing of protected information
`not in accordance with the provisions of Paragraph 12.
`
`8)
`
`Depositions.
`
`Protected documents produced during a discovery deposition, or offered into evidence during a
`testimony deposition shali be orally noted as such by the producing or offering party at the outset
`of any discussion of the document or information contained in the document. In addition, the
`documents must be prominently stamped or marked with the appropriate designation.
`
`During discussion of any non-«documentary protected information, the interested party shall make
`oral note of the protected nature of the information.
`
`The transcript of any deposition and all exhibits or attachments shall be considered protected for
`30 days foliowing the date of service of the transcript by the party that took the deposition.
`During that 30-day period, either party may designate the portions of the transcript, and any
`specific exhibits or attachments, which are to be treated as protected, by electing the appropriate
`designation from Paragraph 1. Appropriate starnpings or markings should be made during this
`time. if no such designations are made, then the entire transcript and exhibits will be considered
`unprotected.
`
`DM_US 49‘.’S245-4—1.006(}93.043'J'
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`

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`9)
`
`Filing Notices of Reliance.
`
`When a party or its attorney files a notice of reliance during the party’s testimony period, the
`party or attorney is bound to honor designations made by the adverse party or attorney, or non-
`party witness, who disclosed the infonnation, so as to maintain the protected status of the
`information.
`
`10)
`
`Briefs.
`
`When tiling briefs, rnemoranda, or declarations in support of a motion, or briefs at final hearing,
`the portions of these filings that discuss protected information, whether information of the filing
`party, or any adverse party, or any nomparty witness, should be redacted. The rule of
`reasonableness for redaction is discussed in Paragraph 12 of this Order.
`
`1 1)
`
`Handling of 1’rotected Information.
`
`Disclosure of information protected under the terms of‘ this order is intended only to facilitate the
`prosecution or defense of this case. The recipient of any protected information disclosed in
`accordance with the terms of this order is obligated to maintain the confidentiality of the
`information and shall exercise reasonabie care in handling, storing, using or disseminating the
`information.
`
`12)
`
`Redaction; Filing Materiai With the Board.
`
`When a party or attorney must file protected information with the Board, or a brief that discusses
`such inforrnation, the protected inforrnation or portion of the brief discussing the same shouid be
`redacted from the remainder. A rule of reasonableness should dictate how redaction is effected.
`
`Redaction can entail merely covering a portion of a page of material when it is copied in
`anticipation of filing but can also entail the more extreme measure of sirnpiy filing the entire
`page under seal as one that contains primarily confidential material. if only a sentence or short
`paragraph of a page of material is confidential, covering that material when the page is copied
`would be appropriate. In contrast, if most of the material on the page is confidential, then filing
`the entire page under seal would be more re-asonable, even if some small quantity of non-
`confidential material is then Withheld from the pubiic record. Likewise, when a rnutti-page
`document is in issue, reasonabieness would dictate that redaction of the portions or pages
`containing confidentiai material be effected when only some small number of pages contain such
`material. In contrast, if almost every page of the document contains some confidential material, it
`may be more reasonable to simply submit the entire document under seat. Occasions when a
`whole document or brief must be submitted under seal should be very rare.
`
`Protected information, and pleadings, briefs or rnernoranda that reproduce, discuss or paraphrase
`such information, shall be filed with the Board under seal. The envelopes or containers shall be
`prominentiy stamped or marked with a legend in substantially the foliowing form:
`
`DM__US 49752454v-I 006093.043?
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`CONFIDENTIAL
`
`This envelope contains documents or in formation that are subject to a protective order or
`agreement. The confidentiality of the material is to be maintained and the envelope is not to
`be opened, or the contents revealed to any individual, except by order of the Board.
`
`13)
`
`Acceptance of Information; inadvertent Disclosure.
`
`Acceptance by a party or its attorney of information disclosed under designation as protected
`shall not constitute an admission that the information is, in fact, entitled to protection.
`inadvertent disclosure of information which the disciosing party intended to designate as
`protected shall not constitute waiver of any right to claim the information as protected upon
`discovery of the error.
`
`14)
`
`Challenges to Designations of Information as Protected.
`
`If the parties or their attorneys disagree as to whether certain information should be protected,
`they are obligated to negotiate in good faith regarding the designation by the disciosing party. if
`the parties are unable to resolve their differences, the party challenging the designation may
`make a motion before the Board seeking a determination of the status of the information.
`
`A challenge to the designation of information as protected must be made substantially
`contemporaneous with the designation or as soon as practicable after the basis for chalieoge is
`known. When a challenge is made long after a designation of information as protected, the
`challenging party will be expected to show why it could not have made the challenge at an
`earlier time.
`
`The party designating information as protected will, when its designation is timely challenged,
`bear the ultimate burden of proving that the information should be protected.
`
`15)
`
`Boarrfs Jurisdiction; Handling of Materials after Termination.
`
`The Board’s jurisdiction over the parties and their attorneys ends when this proceeding is
`terminated. A proceeding is terminated only after a finai order is entered and either all appellate
`proceedings have been resoived or the time for filing an appeal has passed without filing of any
`appeal.
`
`The parties agree that archival copies of evidence and briefs may be retained by outside counsel,
`subject to compliance with the safeguards contained within this agreement. Otherwise, within 30
`days after the final termination of this proceeding, the parties and their in—house counsel shall
`return to each disciosing party the protected information disclosed during the proceeding, and
`shall include any briefs, mcznoranda, summaries, and the like, which discuss or in any way refer
`to such information. In the alternative, the disclosing party or its in—house counsel may make a
`written request that such materials be destroyed rather than returned.
`
`DM_US 49'i'52454- § 006093.043?
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`16)
`
`Other Rights of the Farties and Attorneys.
`
`This Order shalt not preclude the parties or their attorneys from making any appiicable claims of
`priviiege during discovery or at trial. Nor shall the order preclude the filing of any motion with
`the Board for relief from a particular provision of this order or for additional protections not
`provided by this Order.
`
`17)
`
`inconsistent Designations.
`
`In the event that a party produces two or more identical copies of a document, and one copy is
`designated with a lesser degree of confidentiaiity of any other copy, all such identical documents
`shall be treated in accordance with the most restrictive designation on any copy once the
`inconsistent designation is recognized untii and uniess the producing party informs the receiving
`party to the contrary. The producing party shall be responsible for informing the receiving party
`of any inconsistent designation once it recognizes the inconsistency and informing the receiving
`party of the correct designation; however, if any person subject to this order receives such
`inconsistently designated information, and has actual knowledge of the inconsistent designation,
`the person shall inform the producing party of the inconsistency and shail treat ali copies in
`accordance with the most restrictive designation, until and unless informed otherwise by the
`producing party. If an inconsistently designated document has been treated by the receiving
`party in accordance with the less restrictive designation prior to the inconsistency being
`recognized by either the producing or the receiving party, upon recognition of the inconsistency,
`the receiving party will immediately take corrective steps by retrieving the document and ali
`copies of the document from any person to whom it has been disclosed contrary to the more
`restrictive designation on the other copy.
`
`18} Miscellaneous.
`
`Nothing herein shail prevent disclosure if each party designating information as Confidential,
`Highiy Confidential, or Trade SecretfComrnerciaiIy Sensitive consents to such disclosure. Nor
`shall anything herein prevent any counsel of the parties from utilizing any designated
`information in the examination of any person who is reasonably alleged to be the author, source,
`or recipient of the information or document, or who is an employee or agent thereof. Nothing
`herein shall bar or otherwise restrict any attorney from rendering advice to his/her client with
`respect to this proceeding and, in the course thereof, referring or relying generally upon his/‘her
`examination of information designated as protected, provided however, that in rendering such
`advice and in otherwise communicating with his/her client, the attorney shali not disclose the
`content or the source of such information contrary to the terms of this order. The parties’
`obiigations under the order, to the extent possible, shail survive the termination of this
`proceeding and continue to bind the parties to this proceeding and any other receiving parties.
`
`iirsirsictfe-it--Irs'r*
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`DM_US 497524541-l ,GG6093.G43‘!
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`By Agreement of the following, effective the date iast siégned below.
`
`fifiggfézf5”“?
`
`Date signed:
`
`
`
`
`Date signed:
`
`/( 9 /L/
`
`Jennifer M. Mikulina
`MCDBRIVEOTT WILL & EMERY LLP
`
`David Wade Schnell
`THE NOBLIT1‘ GROUP PLLC
`
`227 W. Monroe Street
`Chicago, IL 60606-5096
`Attorney for Opposer
`
`8800 N. Gainey Center Drive; Suite 279
`Scottsdale, AZ 85258—2123
`Attorney for Appiicant
`
`DMWUS 49752ttS4~l.{)O6093.€}43'!
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of trademark application Serial No. 85/850,446
`For the mark RUSH
`
`Rush University Medical Center,
`
`Opposer,
`
`v.
`
`Opposition No. 91213225
`
`Ability Dynamics, LLC,
`
`Applicant.
`
`ACKNOWLEDGMENT OF ORDER PROTECTING CONFIDENTIALITY OF
`INFORMATION REVEALED DURING BOAR!) PROCEEDING
`
`I,
`
`[print name], declare that I have been provided
`
`with a copy of the Order regarding the disclosure of, and protection of, certain types of
`
`information and documents during and afier the above-captioned opposition proceeding before
`
`the Trademark Trial and Appeal Board.
`
`I have read the Order and understand its terms and provisions, by which I agree to be
`
`bound. Specifically, I agree to hold in confidence any information disclosed to me in conjunction
`
`with any part E Lake in this proceeding.
`
`I decfare under the penalty of perjury that these statements are true and correct.
`
`[sigiature]
`
`[name]
`
`[title, if applicable}
`
`[date]
`
`DM__US 49752453»! .(}06093,0437