Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA725419
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`Filing date:
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`02/07/2016
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`91217618
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`Party
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`Correspondence
`Address
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`Submission
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`Filer's Name
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`Filer's e-mail
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`Signature
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`Date
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`Defendant
`Trump Your Competition, Inc.
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`ROD UNDERHILL
`ROD UNDERHILL ESQ
`PO BOX 1238
`JULIAN, CA 92036-1238
`UNITED STATES
`MP3Rod@aol.com
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`Other Motions/Papers
`
`Rod Underhill, Attorney of Record
`
`MP3Rod@aol.com
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`/RodUnderhill/
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`02/07/2016
`
`Attachments
`
`Dismiss Binder.pdf(4310646 bytes )
`
`
`
`ESTTA Tracking number:
`
`ESTTA725419
`
`Filing date:
`
`02/07/2016
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91217618
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's e-mail
`
`Signature
`
`Date
`
`Defendant
`Trump Your Competition, Inc.
`
`ROD UNDERHILL
`ROD UNDERHILL ESQ
`PO BOX 1238
`JULIAN, CA 92036-1238
`UNITED STATES
`MP3Rod@aol.com
`
`Other Motions/Papers
`
`Rod Underhill, Attorney of Record
`
`MP3Rod@aol.com
`
`/RodUnderhill/
`
`02/07/2016
`
`Attachments
`
`Dismiss Binder.pdf(4310646 bytes )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`
`
`
`
`
`
`
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`
`
`Opposition No. 91217618
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`MOTION TO DISMISS PLAINTIFF’S NOTICE OF OPPOSITION AND ALL
`RELATED CLAIMS
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`MOTION FOR LEAVE TO AMEND ANSWER TO ADD AFFIRMATIVE
`DEFENSES AND COUNTER CLAIMS TO CANCEL OPPOSSER’S MARKS
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`PRELIMARY STATEMENT
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`COMES NOW, the Applicant, who moves the Board to dismiss the claims of
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`the Applicant, and to allow the Applicant leave to file an Amended Answer that
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`includes affirmative defenses and counter claims to cancel Opposer’s marks.
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`The Applicant, on 8/25/2014, filed the Answer to this action. On 10/08/2014,
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`the Supreme Court of New York, County of New York: Part 55, in the case of People
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`v. Trump Entrepreneur Initiative, Index No. 451463/2013, Hon. Cynthia S. Kern
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`presiding, found the Opposer, Donald J. Trump, personally liable regarding a violation
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`of New York State Educ. Law § § 5001-5010 regarding his unlawful use in commerce
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`of the TRUMP house mark, name and brand, (hereinafter, “New York State Court
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`Ruling,”) and ordered that the amount of damages Mr. Trump would have to pay to be
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`1
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`determined at a future date. Donald J. Trump is the individual plaintiff before the
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`Board in the instant matter. The Plaintiff is not an entity.
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`A true and correct copy of the Court’s Decision/Order is attached hereto as
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`Attachment 1.
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`The United States District Court, District of Southern California, in the class
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`action case entitled Art Cohen v. Donald J. Trump, Case No., 13CV2519 DMS RBB,
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`(“hereinafter, “Cohen v. Trump Class Action,”) issued an Order Granting Motion for
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`Class Certification on 10/24/2014, whereby Opposer Donald J. Trump is personally
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`accused of fraud and racketeering as set forth in the quotation from the Order quoted
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`below:
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` “Plaintiff filed a complaint in the above-captioned matter, alleging a single cause of
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`action for mail and wire fraud in violation of the Racketeer Influenced and Corrupt
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`Organizations Act (“RICO”), 18 U.S.C. § 1962(c). Plaintiff claims that common
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`evidence will prove that Defendant ‘sold real estate seminars and mentorships (‘Live
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`Events’) through ‘Trump University,’ which he marketed nationally as a premier
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`institution of higher learning rivaling Wharton Business School and with which he was
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`so integrally involved, students would effectively be learning from him.”
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`A true and correct copy of the Order Granting Motion for Class Certification is
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`attached hereto as Attachment 2.
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`On December 30th, 2014, the Applicant served its First Set of Interrogatories
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`2
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`
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`upon the Opposer. On February 19th, 2015, the Opposer served his Opposer’s
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`Responses to Applicant’s First Set of Interrogatories upon Applicant. On August 7th,
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`2015, Applicant filed a motion to Disqualify Alan Garten as Opposer’s attorney of
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`record, due to the Applicant being served notice that Mr. Garten, attorney of record for
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`the Opposer, would also be serving as the plaintiff’s sole testimony witness during his
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`initial phase of trial. On August 12th, 2015, faced with a filed and pending motion to
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`disqualify him, Alan Garten voluntarily stepped down as Opposer’s attorney of record
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`and was replaced by new counsel.
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`On November 12, 2015, Alan Garten, former attorney of record in the instant
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`case, testified on behalf of the Opposer.
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`The key events and dates mentioned above are listed as follows for ease of
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`reference:
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`1. 8/25/2014. Answer Filed
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`2. 10/08/2014. New York Supreme Court ruling issued in People v. Trump
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`Entrepreneur Initiative. The court determines that individual Donald J.
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`Trump is in personal violation of New York State Educ. Law § § 5001-
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`5010.
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`3. 10/24/2014. Federal District Court, Southern District of California, certifies
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`class action against individual Donald J. Trump. Art Cohen v. Donald J.
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`Trump. Cause of action: mail and wire fraud in violation of the Racketeer
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`3
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`
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`Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. § 1962(c).
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`4. December 30, 2014. Applicant’s First Set of Interrogatories served upon
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`Opposer.
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`5. February 19, 2015. Donald J. Trump serves Opposer’s Responses to
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`Applicant’s First Set of Interrogatories upon the Applicant. Opposer
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`misleads the Applicant regarding the New York State Court Ruling and the
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`Art Cohen v. Donald J. Trump class action.
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`6. August 7th, 2015. Applicant files a Motion to Disqualify attorney Alan
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`Garten due to the fact that Donald J. Trump intended to call his own lead
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`counsel in the instant matter as his sole trial witness.
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`7. August 12th, 2015. Alan Garten voluntarily steps down as attorney of
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`record for Opposer as a reaction to the motion to disqualify. 1
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`8. November 12, 2015. Alan Garten testifies on behalf of Opposer.
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`The Applicant hereby moves the Board as follows:
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`1. To dismiss the Opposer’s Opposition and claims in their entirety due to a
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`series of egregious acts of misconduct.
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`2. To grant the Applicant leave to add counter claims as identified below.
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`1 As demonstrated below, Mr. Garten’s voluntary stepping down from his role as lead counsel was
`merely a feint. He would remain control over the case as supervising attorney and while on the
`witness stand, would make objections from the stand as well proffering offers of proof regarding
`various witnesses he promoted in lieu of Donald Trump taking the stand.
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`4
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`3. To allow the Applicant to add affirmative defenses as identified below.
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`A. MOTION TO DISMISS PLAINTIFF’S NOTICE OF OPPOSITION AND ALL
`RELATED CLAIMS
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`ARGUMENT
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`1. DISMISSAL OF THE PLAINTIFF’S CAUSES OF ACTION IS AN
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`APPROPRIATE SANCTION IN LIGHT OF PLAINTIFF’S EGREGIOUS
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`MISCONDUCT.
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`When the process of trial has itself been subverted, the resulting prejudice to
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`opposing party and the court cannot be easily corrected through the use of
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`impeachment and discovery sanctions.
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`A. Opposer engaged in misconduct via his Interrogatory responses.
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`On February 18, 2015, the Opposer provided his OPPOSER’S RESPONSES TO
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`APPLICANT’S FIRST SET OF INTERROGATORIES2. True and correct copies of
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`the related pages, and the full transcript, are provided as Attachment “3.”
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`Interrogatory No. 13 provided the following query: Identify every opinion, legal
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`or otherwise, requested or received by you, regarding the rights to use the TRUMP
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`MARKS, including the identity of the persons requesting the opinion, the date and
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`substance of that opinion, and the persons receiving that opinion. (Emphasis added.)
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`Mr. Garten’s response, issued under penalty of perjury, failed to provide the
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`2 Rather than providing a personal response to the Interrogatories as the individual plaintiff to this
`matter, Mr. Trump allowed Mr. Alan Garten, one of his personal attorneys, to respond.
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`5
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`
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`Applicant with the truth of the matter: that Mr. Trump had been found personally
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`liable by a New York State Judge for the unlawful use of his TRUMP UNIVERSITY
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`mark. He also failed to disclose that Mr. Trump is the individual defendant in a RICO
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`based racketing case in the Southern Federal District of California that involves his use
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`of the TRUMP UNIVERSITY mark.3 4
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` Rather, Mr. Garten’s response, after making various evidentiary objections, was
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`limited to the following: “Opposer does not keep track of every responsive opinion
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`requested or received.”5
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` The Applicant now turns to the wisdom of a reliable source, Black’s Law
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`Dictionary, for reassurance as to what the word “opinion,” means:
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`“ Lawful statement written by court judge, judicial officer, or legal expert. Decision on
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`an action, condition, or intent being within the law.” (Emphasis added.)
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`
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`Turning to Interrogatory No. 14: “Identify and describe any agreements in
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`which you have licensed any of the TRUMP MARKS for use by any other party.”
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` Mr. Garten’s response, under oath, after making further evidentiary objections:
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`“Opposer has entered into numerous license agreements during the relevant time
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`3 The TRUMP UNIVERSITY marks were registered marks during the time that Mr. Trump unlawfully
`misused them and the related TRUMP house mark, name and brand.
`4 TRUMP, the house mark, Reg no’s 3391095 & 2240310, were the dominant portion of the Trump
`University mark.
`5 The Applicant deciphers this response as unadulterated perjury, in that Mr. Trump would
`certainly be keeping track of both the New York case brought forth against Mr. Trump by that
`State’s Attorney General as well as the class action RICO related matter before the federal court
`in California.
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`6
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`
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`frame. However, none of these agreements are relevant here.6”
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`This reply was purposely constructed by the Opposer to hide the fact that a New
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`York Supreme Court Judge had found the Opposer personally liable for an unlawful
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`use of his registered TRUMP UNIVERSITY MARK, which he owned as an
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`individual, and licensed to his TRUMP UNIVERSITY entity, and to also hide the fact
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`that Mr. Trump was personally named as a defendant in a class action whereby his
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`misuse of the TRUMP UNIVERSITY mark resulted in class certification in a civil
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`RICO racketeering matter in the Southern District of California. 7
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`
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`Turning to Interrogatory No. 18: “Describe in detail any instances in which a
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`third party, other than Trump Your Competition, Inc., has challenged your right to use,
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`or the rights you claim in, any of the TRUMP MARKS, including any petitions to
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`cancel any registration of any of the TRUMP MARKS. (Emphasis added.)
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`Mr. Garten’s response, as shown in Attachment “3”, failed to identify the
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`litigation filed by New York Attorney General Eric T. Schneiderman in the Supreme
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`Court of the State of New York, index no. 451463/14, whereby Mr. Trump was
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`accused of a wide range of unlawful activities regarding his usage of the TRUMP
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`UNIVERSITY mark, and Mr. Garten also did not think it was necessary to disclose
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`that Mr. Trump had been found to be personally liable for damages caused by his
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`6 Mr. Garten would often make evidentiary objections from the stand during his testimony
`deposition, indicating that his withdrawal as attorney of record was a feint. Examples of such
`objections are provided herein.
`7 There appears to be two separate class actions that have merged into one before the District
`Court of Southern California.
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`7
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`
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`unlawful use of the TRUMP UNIVERSITY mark. Further, the Court banned any
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`future use of “TRUMP UNIVERSITY” by Mr. Trump as the same being a violation of
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`New York state law.
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`The Applicant relied, to its detriment, on the false and misleading testimony of
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`Mr. Garten as provided via his affidavit, which resulted in delay to the Applicant
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`discovering both the New York State matter and the California based class action, and
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`that delay was wrongfully and purposely obtained by the Opposer through misleading,
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`incomplete or just plain false responses to the Applicant’s First Set of Interrogatories.
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`The purpose of interrogatories, as in all matters of the art of discovery, is to allow the
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`uncovering of potentially relevant evidence by an opposing party. The Opposer did his
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`best to thwart such discovery, and so is barred by both law and equity to claim “undue
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`delay” in defense of this motion.
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`The record in this matter does not disclose any information that would have led,
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`or shows that the Applicant was led, to knowledge about either the class action matter
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`or the finding against Mr. Trump as issued by the Supreme Court of New York as
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`mentioned above. Rather, the record clearly shows Mr. Trump doing his best to
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`misdirect the Applicant regarding the existence of these serious legal matters that deal
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`directly with the unlawful use in commerce of the dominant TRUMP element of his
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`TRUMP marks, name and brand.
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`B. Opposer engaged in misconduct during the testimony of Alan Garten.
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`8
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` A party is entitled to take discovery, not only as to matters specifically raised in
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`the original pleadings, but also as to any matters which might serve as a basis for
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`an amended notice of opposition or petition for cancellation, a new affirmative
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`defense, or counter claim made through amendment of pleadings. Johnson &
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`Johnson v. Rexall Drug Co., 186 USPQ 167, 171 (USPQ 1975); Neville Chem. Co
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`v. Lubrizol Corp, 183 USPQ 184, 187 (TTAB 1974).
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` Occasionally a party may wish to depose an adverse witness during his
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`testimony period. This sometimes happens, as in the instant case, when
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`circumstances have changed since discovery such that is desirable to depose the
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`witness during the testimony phase of the case.
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` In the instant case, the plaintiff, having only recently having learned of the true
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`nature and extent of Mr. Garten’s duplicitous answers under oath in regards to his
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`interrogatory responses, but having not yet reviewed either of the complicated case
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`files regarding the Art Cohen v. Donald J. Trump class action and the New York
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`State case of People v. Trump Entrepreneur Initiative, realized that there would be
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`an appropriate opportunity to seek further information from Mr. Garten when he
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`was called to the stand by the Opposer. (Transcript attached as Attachment “7.”)
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` Accordingly, the Applicant decided to use the opportunity presented by the
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`testimony deposition of Alan Garten to inquire into both of those legal matters that
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`involved the TRUMP dominant mark, brand and name. This was deemed
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`9
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`particularly necessary due to the duplicitous, misleading, evasive and false replies
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`provided by Alan Garten, under oath, in his answers to the Applicant’s First Set of
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`Interrogatories.
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` What resulted was a Applicant’s counsel enduring a typhoon of repeated
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`interruptions by Plaintiff’s counsel, including lengthy speaking objections, and the
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`witness himself issuing a direct threat to Applicant’s legal counsel, as set forth
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`below.
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`Mr. Garten was asked on cross-examination a question about the federal class
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`action matter lodged in San Diego by Applicant’s counsel:
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`“The Trump University matter in San Diego – are you familiar with that class
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`action litigation.”
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`His response: “Extremely.” Lines 18-21, Page 94, Transcript of Alan Garten,
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`Esq, November 12, 2015.
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` Yet, Mr. Garten denied knowledge of any “opinion, legal or otherwise, requested
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`or received by you, regarding the rights to use the TRUMP MARKS…” as queried
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`by the Applicant in the Applicant’s Interrogatory No. 13.
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`
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`Further, the following section of the transcript supports the actual in-depth
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`knowledge that Mr. Garten possessed regarding the class action matter of Art
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`Cohen v. Donald J. Trump:
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`
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`Q. Do you understand that we are referring to the case which would be
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`10
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`
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`called Art Cohen versus Donald J. Trump?
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`A: Yes.
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`Q. A class action filed in the Southern District of California?
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`A. There’s probably nobody more familiar with that case than me.
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`8
`Transcript. 9-16, Page 95.
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`At this point, repeated objections over “relevancy” begin to erupt from Ms.
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`Reed. However, counsel for the Applicant pressed on:
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`Q. Is it your understanding that the cause of action related to a alleged
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`violation of 18 U.S.C § 1962 C – as in charley?
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`Ms. Reed: I’m going to object to a line of questioning concerning this
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`litigation in terms of relevancy. Transcript. Lines 2-7, Page 96.
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`In short order, counsel for the Opposer would turn to speaking objections
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`as follows:
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`Q. …But Art Cohen versus Donald J. Trump hasn’t been dismissed as a
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`case yet.”
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`A: No.
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`Ms. Reed: I’m going to reiterate my objection to all line of questioning
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`8 What may have seemed at first promising, that is, Mr. Garten’s stated comprehensive
`knowledge of the Trump class action matter in San Diego, with Mr. Garten being a rich source of
`information of the same on cross, would quickly evaporate when he would shortly thereafter
`refuse to be questioned on the subject.
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`11
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`
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`concerning this Cohen case as it relates to the claims in the case, apart from
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`just use of the Trump University mark. So any questions and answers that are
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`elicited about the substance of the wire fraud case are completely irrelevant to
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`this opposition proceeding.” Transcript. 15-25, Page 97 - line 2, Page 98.
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`Encouraged by his counsel’s speaking objection, the witness began making
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`his own evidentiary objections from the witness stand:
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`
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`Q. So Trump University-the State of New York, had maybe a little,
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`tiny legal issues about using the word “university?” Is that correct?
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`A: Yes. They did.
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`Q. Because it was unlicensed by the state.
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`A: It’s a long, complicated answer – of none of which is relevant to
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`this.”9 Transcript. Lines 17-25, Page 99.
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`Shifting his tactic a bit, the witness began to explain why he would not be
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`answering the examining lawyer’s questions:
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`9 In a strongly worded letter obtained by the Daily News, the state Education Department
`slammed the tycoon for calling the cyber-school a university and demanded he stop using the
`term.
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`"Use of the word 'university' by your corporation is misleading and violates New York Education
`Law and the Rules of the Board of Regents," wrote Deputy Commissioner for Higher Education
`Joseph Frey. Mr. Frey would later be vindicated on that issue by a judge in New York who agreed
`with his claim that Trump University was in fact an unlicensed and illegal misuse of the word
`“university.” (Although the ruling would be against Trump, the individual.) This state violation
`would lead to a federal class action(s) featuring a per se violation of federal law. However,
`without the TRUMP mark element, brand and name, a national brand, the harm to the public
`would have been greatly reduced.
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`
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`12
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` Q. Well, thank you for making the objections for your counsel. But-
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`A. 10Look, everything you need to know about the Trump
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`University cases - whether it is in San Diego or in New York – are publically
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`available in the court records, in the appeal briefs, and on, and on, and on.
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`Could probably talk about that case for a week. It’s not going to get us
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`anywhere for this. 11
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`This, in turn, brought Ms. Reed to resume her speaking objections:
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`Ms. Reed: I am going to reiterate any objection to questioning concerning
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`whether the Trump University cases –whether in San Diego or New York. I
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`object that it’s irrelevant.
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`Mr. Underhill: I’m going to be asking several questions of Mr. Garten
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`regarding Trump University and related litigation. Why don’t we just give you
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`a standing objection as to that?
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`Ms. Reed: Standing objection. Absolutely – for all questions and answers
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`10 This is but one example of the examining attorney being interrupted during cross-examination.
`Ms. Reed engaged in that practice as well. Mr. Garten repeatedly asked questions of the
`examining attorney, but not for purposes of clarification. See Transcript lines 20-25, Page 117,
`and page 118 in its entirety for an example of Mr. Garten turning the tables on the examiner and
`subjecting him to Mr. Garten’s own examination. Mr. Garten: “So you are refusing to ask me
`questions that you think are more relevant for Mr. Trump.” Mr. Underhill: “I ‘m not going to
`answer questions. I’m not the witness here. Mr. Garten: “Okay. But you are not disputing that.
`Okay.”
`11 The Applicant doubts that Mr. Garten, a seasoned attorney working for a multi-billion dollar
`entity as General Counsel, the Trump Organization, was confused regarding what might be a
`proper objection to a burdensome request for production of documents and a relevant question
`on cross-examination. His response under oath was simply a refusal to answer.
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`13
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`
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`elicited concerning the San Diego litigation or the New York litigation.
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`They are irrelevant to this proceeding.
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`Mr. Underhill: Do you feel you have made your objection as
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`comprehensively as you would like?
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`Ms. Reed: I have. But I might reiterate it again, depending on the
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`questioning, --- the line of questioning.
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`Mr. Underhill. You have a standing objection. There is no need to remind
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`me. Transcript. Page 100 (entirety), Lines 1-14, Page 101.
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`In an attempt to seek further knowledge about the case filed against Mr.
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`Trump by New York State’s attorney general, the following was asked by
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`counsel for the Applicant:
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`Q: Lets – give me the two-sentence explanation to your mother about this
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`case if you are sitting down for Thanksgiving and she wanted to know what it
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`was about.
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`Encouraged by previous speaking objections made by Ms. Reed, Mr.
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`Garten responds with a simple refusal:
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` “I’m really not going to answer this question.”
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`
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`Finally, Mr. Garten turns to issuing a threat to Applicant’s counsel
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`regarding “irrelevant” questions:
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`Q. Mr. Garten, are you aware that, if you refuse to answer a question in a
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`14
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`
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`proceeding like this, that could be construed against your case? Transcript.
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`Lines 13-16, Page 104.
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`A. Are you aware that asking irrelevant questions could get you
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`sanctioned? Transcript. Lines 17-18, Page 104.
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`Asked directly by Applicant’s counsel if Mr. Garten was issuing a threat,
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`the following exchange took place whereby his threat is once again stated:
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`Q. Are you threatening me with sanctions, Mr. Garten?
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`A. I am not threatening you. I’m asking you if you are aware.
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`Transcript. Lines 19-22, Page 105.
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`When asked about issues of fraud regarding Mr. Trump’s TRUMP
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`UNIVERSITY Mark, the following exchange took place, whereby Ms. Reed
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`makes yet another speaking objection, while openly mocking Applicant’s
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`counsel:
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`Q. …should Mr. Trump use his marks to commit fraud?
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`A. …Whether or not it’s Mr. Trump or anyone else, fraud is bad. People
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`shouldn’t do it.
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`Ms. Reed: I’m going to object again. I apologize for laughing. But I’m
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`laughing because this line of questioning about fraud is completely irrelevant.
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`Mr. Underhill: Let’s go off the record.
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`Ms. Reed: -- and— Transcript. Lines 6-25. Page 112.
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`
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`15
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`
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`Mr. Underhill: - for your speech.
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`Ms. Reed: --no, I’m not giving a speech. Actually, it should be on the
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`record. It’s completely irrelevant. And it’s redundant, really. So, I mean,
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`hopefully we can move on from this line of questioning.”
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`At this point, Ms. Reed informs counsel for Applicant the questions she
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`would permit him to ask of her witness:
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`Ms. Reed: If you have something to ask Mr. Garten about concerning the
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`use of the Trump mark for the goods and services that we’ve discussed, or
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`licensing, or trademark registrations, or policing the brand – as opposed to
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`talking about the state claims with respect to wire fraud and RICO, because
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`they are irrelevant. 12
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`Mr. Underhill: Are you done?
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`Ms. Reed: I’m done.
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`Mr. Underhill: I would like to object that counsel has repeatedly made
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`speaking objections. May I proceed now? 13 Transcript. Page 113. Entirety.
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`
`12 A true and correct copy of the Cohen class action is attached as attachment “6.”
`13 Oddly, Mr. Garten stated several times on the record, on his own accord, that he wished to
`continue to be examined in order to protect Mr. Trump from being called to the stand. Given his
`refusal to answer questions he didn’t particularly care to answer, and his propensity to make
`evidentiary objections of his own from the witness stand, and Ms. Reed’s continual interference
`with examining counsel, such an offer seems at the very least, misleading. A sua sponte offer from
`a hostile witness of such caliber to continue to hear further cross-examination questions that he
`would answer if he felt like answering them is not a particularly promising transaction. Garten
`Transcript Pages 117-118.
`
`
`16
`
`
`
`The original First Set of Interrogatories propounded by the Applicant are
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`attached as Attachment “5.”
`
`The Movant is aware that an objection must be stated concisely in a non-
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`argumentative and non-suggestive manner. A person may instruct a deponent
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`not to answer only when necessary to preserve a privilege, to enforce a
`
`limitation ordered by the court, or to present a motion under Rule 30(d)(3).
`
`Woods v. Ramsey, 199 F.3d 437 (5th Cir. 1999). Through Ms. Reed’s series of
`
`speaking objections she was instructing Mr. Garten not to answer questions that
`
`she did now want him to answer. Her plan worked well and reached her desired
`
`effect. However, it is appropriate for defense counsel to inquire into areas that
`
`might turn up defense evidence regarding the common affirmative defense of
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`unclean hands, unlawful use in commerce and other relevant defenses and
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`offenses.
`
`
`
`
`
`And, the Movant is aware that speaking objections, verbal assaults on the
`
`examining lawyer, evasive non-answers, and comments suggesting answers are all too
`
`common during depositions. However, such activities are not allowable under Federal
`
`Civil Procedure rules. Federal Rule of Civil Procedure 30(c)(1) sets the stage for the
`
`manner in which a deposition should be conducted: “The examination and cross-
`
`examination of a deponent proceed as they would at trial under the Federal Rules of
`
`Evidence, except Rules 103 and 615.” Engaging in hostile conduct, frustrating fair
`
`
`
`17
`
`
`
`examination, and intentionally providing evasive answers to deposition questions is
`
`forbidden. The defending lawyer is entitled to preserve the objection on the record,
`
`but she is not entitled to get in the way of the cross-examination. Ms. Reed did her best
`
`to get in the way of Applicant’s cross-examination. She did, in fact, get in the way of
`
`the Applicant’s cross-examination of Mr. Garten.
`
`
`
`The Movant is also aware that if a witness or counsel for the witness impedes,
`
`delays or frustrates the examination of the deponent, the court is expressly authorized
`
`by Federal Rule of Civil Procedure 30(d)(2) to “impose an appropriate sanction.”
`
`
`
`However, the Movant asks the Board to consider the totality of improper activities
`
`of the Opposer and Opposer’s Counsel in the greater context of what has been a stream
`
`of egregious misbehavior: false and misleading responses to interrogatories for the
`
`purpose of hiding a class action RICO matter filed against Mr. Trump regarding his
`
`unlawful use of his marks. False and misleading answers to interrogatories for the
`
`purpose of hiding that a State Court of New York found illegal activity regarding the
`
`unlawful usage of Mr. Trump’s marks in the TRUMP UNIVERSITY matter. An
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`attempt by Mr. Garten to serve as both lead counsel for Mr. Trump and Opposer’s sole
`
`witness, which was designed to put both the Board and the Applicant at an unfair
`
`disadvantage, Mr. Garten’s overt threats against counsel for the Applicant during
`
`cross-examination, misleading answers, witness generated evidentiary objections, and
`
`refusals to answer, in concert with Attorney Reed’s repeated interference with the
`
`
`
`18
`
`
`
`cross-examination of Mr. Garten and a seemingly endless series of speaking
`
`objections. Multiple changes in plaintiff’s lead counsel also has taken it’s toll on this
`
`proceeding and cause unwarranted delay. 14
`
`C. The Law Supports the Extreme Sanction of Dismissal of the Opposer’s
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`Claims.
`
`Rules 11, 16, 26, 37 and 41 of the Federal Rules of Civil Procedure, combined with
`
`the inherent power of a trial court, may play a part in disposing of a perjuring
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`plaintiff’s claims without trial. “Unclean hands” and “fraud upon the court” comprise
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`doctrines that may describe, in general, examples of unpermitted egregious conduct
`
`that may result in the sanction of dismissal of plaintiff’s cause of action without the
`
`benefit of trial.
`
`“Unclean hands” is an equitable doctrine that courts apply for their own protection.
`
`It is, in reality, a form of an ordinance that closes the doors of a court of equity to one
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`tainted with bad faith or inequitableness relative to the matter in which he seeks relief.
`
`Precision Instruments Mfg. Co. v Automotive Maintenance Mach Co., 324 U.S. 806,
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`814-15 (1945).
`
` Two equitable maxims underlie the doctrine: (1), he who seeks equity must do
`
`equity; and (2) he who comes into equity must come with clean hands. 27A Am. Jur.
`
`2d, Equity § §119, 126 (1996). The courts have added the requirement that hands
`
`
`14 The average life expectancy of plaintiff’s counsel seems to be about four months.
`
`
`
`19
`
`
`
`remain clean during litigation. Mas v. Coca-Cola Co, 163 F.2d 505 (4th Cir. 1947);
`
`Aris-Isotoner Gloves, Inc. v. Berkshire Fashions, Inc., 792 F.Supp. 969, 972 (S.D.N.Y
`
`1992). In Mas v. Coca-Cola, the court determined that unclean hands could be
`
`invoked to dismiss the claims of a plaintiff who used underhanded means to advance
`
`his cause.
`
` “It would be strange if a court of equity had power—because of public policy for
`
`its own protection—to throw out a case because it entered with unclean hands and yet
`
`would have no power to act if the unconscionable conduct occurred while the case was
`
`in court.” American Ins. Co. v. Lucas, 38 F.Supp. 896, 921 (W.D. Mo. 1940).
`
` The unclean hands doctrine permits a court to exercise broad discretion to deny
`
`relief to a litigant who has acted in an unconscionable way that “has immediate and
`
`necessary relation to the matter that he seeks in respect of the matter in litigation.”
`
`Keystone Driller Co. v. Gen. Excavator Co., 290 U.S. 240, 245 (1933).
`
`While the misconduct must be closely related to the subject of the claim, it need
`
`not rise to the level of fraud or illegal conduct. John Norton Pomeroy, Equity
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`Jurisprudence 397, 404 (5th ed. 1941); Mas v. Coca-Cola, 163 F.2d at 507-8.
`
`The Supreme Court has described “fraud on the court” as a “wrong against the
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`institutions set up to protect and safeguard the public.” Hazel-Atlas Glass Co. v.
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`Hartford-Empire Co, 322 U.S. 238, 246 (1944.) “Fraud on the court” is used as
`
`shorthand to describe a wide variety of improper acts that may lead to sanctions under
`
`
`
`20
`
`
`
`the rules of civil procedure or pursuant to the court’s inherent powers in managing its
`
`docket. Stanley Shenker & Assocs v. World Wrestling Fed’n Entm’t, 48
`
`Conn.Super.Ct 2003.
`
` “Because corrupt intent knows no stylistic boundaries, fraud on the court can take
`
`many forms.” Aoude v. Mobil Oil Corp., 892 F.2d 1115, 1118 (Ist Cir. 1989.)
`
` Suborning perjury is an appropriate reason for the sanction of dismissal. Schultz
`
`v. Sykes, 638 N.W.2d 604 (Wis.App.2001). Suppressing evidence is an appropriate
`
`justification for the sanction of dismissal. Maynard v. Nygren, 332 F.3d 462 (7th Cir.
`
`2003.)
`
` A court may dismiss a complaint when perjury uttered by or on the behalf of a
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`plaintiff takes place during a deposition. Vargas v. Peltz, 901 F.Supp. 1572 (SD. Fla.
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`1995). Dishonest interrogatory or deposition answers are frequently cited as grounds
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`for fraud on the court dismissals. Martin v. DaimlerChrysler Corp., 251 F.3d 691 (8th
`
`Cir. 2001).
`
`The Board may choose to rely upon Rule 37 of the Federal Rules of Civil
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`Procedure which addresses “failure to make disclosure or cooperate in discovery” and
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`provides, pursuant to subsection (b)(2)(C) a sanction of “dismissing the action or
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`proc
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