Proceeding
`Party
`
`Correspondence
`Address
`
`Submission
`Filer's Name
`Filer's e-mail
`Signature
`Date
`Attachments
`
`Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA723345
`ESTTA Tracking number:
`01/28/2016
`
`Filing date:
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`91220956
`Plaintiff
`Unique Photo Inc.
`DANIEL P LAINE
`LERNER DAVID ET AL
`600 SOUTH AVE W STE 2
`WESTFIELD, NJ 07090-1497
`UNITED STATES
`dlaine@ldlkm.com, bsales@ldlkm.com, litigation@ldlkm.com
`Motion to Compel Discovery
`Daniel P. Laine
`dlaine@ldlkm.com, bsales@ldlkm.com, litigation@ldlkm.com
`/Daniel P. Laine/
`01/28/2016
`Opposer's Motion to Compel Discovery 01-28-16.pdf(883361 bytes )
`Declaration of Daniel Laine.pdf(208586 bytes )
`EXHIBIT A.pdf(791796 bytes )
`EXHIBIT B.pdf(1576978 bytes )
`EXHIBIT C.pdf(733624 bytes )
`EXHIBIT D.pdf(155547 bytes )
`EXHIBIT E.pdf(148083 bytes )
`EXHIBIT F.pdf(264554 bytes )
`EXHIBIT G.pdf(154242 bytes )
`EXHIBIT H.pdf(256184 bytes )
`EXHIBIT I.pdf(99683 bytes )
`EXHIBIT J.pdf(506049 bytes )
`EXHIBIT K.pdf(492276 bytes )
`
`

`
`TRADEMARK
`UPHOTO 10.20-064
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`UNIQUE PHOTO, INC.,
`
`v.
`
`Opposer,
`
`Mark: UUNIQUE
`
`Serial Number: 79/153,014
`
`SANJAY AGARWAL,
`
`Opposition No. 91220956
`
`Applicant.
`----------------------------------
`OPPOSER'S MOTION TO COMPEL DISCOVERY
`PURSUANT TO 37 C.F.R. § 2.120(e) AND BRIEF IN SUPPORT OF MOTION
`
`X
`
`I.
`
`INTRODUCTION
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`Opposer Unique Photo, Inc. ("Opposer") respectfully moves the Board to compel
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`applicant Sanjay Agarwal ("Applicant") to fully respond to Opposer's Interrogatory Nos. 5, 7,
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`10, 11, 14, 15, 17-20, and 26 and Requests for Production of Documents and Things Nos. 1, 6, 7,
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`20, 22, and 29, pursuant to 37 C.F.R. § 2.120(e) and TBMP § 523.
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`Applicant's responses failed to meet the most fundamental obligations required of
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`recipients of discovery requests. See TBMP §§ 401.05, 408.01, 408.03. After being put on
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`notice by Opposer of his failure to abide by his discovery obligations, Applicant continued to
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`evade his obligations making feeble and incoherent responses, to the extent any response was
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`provided at all.
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`Indeed, Applicant has not recanted the qualification to all his discovery
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`responses: "I reserve my right to change my opinion regarding any answer at any time, including
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`about past facts, stated opinions about any past or future facts, circumstances or persons. No
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`liability will be accepted based on any of the answers." (Declaration of Daniel P. Laine ("Laine
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`Decl.") Exh. B.) Nor has Applicant been receptive to Opposer's offer to agree to delay the
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`

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`Opposition No.: 91220956
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`remaining dates on the trial schedule so that Applicant's deficiencies can be remedied. (Laine
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`Decl. Exhs. E, J.)
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`The interrogatory and document requests served by Opposer go to the crux of the issues
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`in this opposition, namely, each seeks to establish that use of Applicant's goods listed in his
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`application would likely cause confusion with the marks owned by Opposer. Thus, responses to
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`the interrogatories and document requests are essential for Opposer to prepare its arguments for
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`trial.
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`Due to Applicant's disregard of the discovery process and the difficulty encountered by
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`Opposer in obtaining complete discovery answers necessary for trial, Opposer now faces an
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`imminent deadline to file a motion to compel.
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`It is under these circumstances that Opposer
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`respectfully requests that Applicant be ordered to answer Interrogatory Nos. 5, 7, 10, 11, 14, 15,
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`17-20, and 26 and to produce requested documents and things for Requests for Production
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`Nos. 1, 6, 7, 20, 22, and 29.
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`II.
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`STATEMENT OF FACTS
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`Opposer's interrogatories and requests for production of documents and things to
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`Applicant were timely served on December 1, 2015. (Laine Decl. ,-r 2.) On December 29, 2015,
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`Applicant responded (hereinafter "Original Answers"). (I d. ,-r 3.) Opposer described the many
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`deficiencies and unfulfilled obligations regarding the Original Answers in a letter to Applicant
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`on January 7, 2016 (hereinafter "January 7 letter"). (Laine Decl. ,-r 4 Exhs. C, D.) In the letter,
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`Opposer also offered that it would be willing to agree to seek extra time from the Board if
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`Applicant needed it to provide complete answers. (Id.) Applicant sent a response by e-mail on
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`January 11th, 2016, stating that he was "not in any manner obliged to [resolve the pending
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`factual questions] but that he would provide answers "in due course." (!d. ,-r 5 Exh. E.)
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`Opposition No.: 91220956
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`In subsequent correspondence on January 14, 2016, Opposer once again told Applicant
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`that his discovery responses were deficient and offered to make an agreement with Applicant to
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`request extra time for resolution of discovery issues. (Laine Decl. ｾ＠6 Exhs. F, G.) On the same
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`day in a separate letter, Opposer made an offer of settlement. (Id. ｾ＠7 Exhs. H, I.) Without a
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`response to either letter of January 14, and without a response to the offer to request extra time,
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`Applicant provided yet another incomplete response to the deficiencies and unfulfilled
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`obligations by letter to Opposer on January 25, 2016 (hereinafter "Supplemental Answers"). (Id
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`ｾ＠8 Exh. J.)
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`III. ARGUMENT
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`Under 37 C.P.R. § 2.120(e), "if a party ... fails to answer any question propounded in ..
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`. any interrogatory, or fails to produce and permit the inspection and copying of any document or
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`thing, the party entitled to disclosure or seeking discovery may file a motion to compel
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`disclosure." 3 7 C.F .R. § 2.120( e).
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`As discussed in detail, infra, Applicant has acted with utter disregard to his discovery
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`obligations. Opposer is entitled to discovery because proper responses would show a likelihood
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`of confusion between Applicant's marks and Opposer's marks upon Applicant's use of
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`UUNIQUE in the United States. (Laine Decl. Exh. A.) For example, a complete answer to
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`Request for Production No. 6 would identify channels of trade for Applicant's goods by
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`identifying Applicant's contemplated or current distributors. Thus, because of Applicant's
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`failure to satisfy his discovery obligations and because Opposer is entitled to the discovery
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`sought, Opposer respectfully requests that the Board issue an order compelling Applicant to
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`supplement his prior responses to interrogatories and to fully respond to Opposer's document
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`requests pursuant to TBMP § 523 and 37 C.P.R.§ 2.120(e).
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`3
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`

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`Opposition No.: 91220956
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`1. Applicant's Disregard Of Discovery Process
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`Applicant has flagrantly ignored the applicable rules and obligations in conducting
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`discovery before the Board. See, e.g., TBMP § 401.05; Fed. R. Civ. P. 26(g)(l). In his response
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`to Opposer's discovery requests, Applicant stated that "I reserve my right to change my opinion
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`regarding any answer at any time, including about past facts, stated opinions about any past or
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`future facts, circumstances or persons. No liability will be accepted based on any of the
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`answers." (Laine Decl. Exh. B.)
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`Such a statement is manifestly improper, as Fed. R.
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`Civ. P. 26(g)(1) requires that "[a] party certifies that to the best of the person's knowledge,
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`information, and belief formed after a reasonable inquiry [that a disclosure] is complete and
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`correct." Opposer communicated this impropriety in its January ?letter. (Id. Exh. C.)
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`In Applicant's letter of January 25, 2016, purporting to address his obligations with
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`respect to Opposer's discovery requests, Applicant was unfazed and refused to retract his
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`qualification. Applicant stated that "in cases where you are requesting me to provide opinion or
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`any other form of interpretation of certain facts, you should be aware that such interpretations do
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`not have binding effect upon me. They are not subject to the Federal Rules of Evidence." (Id.
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`Exh.J.)
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`Applicant was also dismissive regarding his obligation to remedy deficiencies, and to do
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`so in a timely manner. See, e.g., TBMP § 408.03; Fed. R. Civ. P. 26(e)(1). In an e-mail that
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`acknowledged receipt of Opposer's notice of deficient responses, Applicant stated that Opposer
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`is "not in a position to impose deadlines" and that "I am going to answer your last enquiry in due
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`course." (Laine Decl. Exh. E.) This is improper, as Fed. R. Civ. P. 26(e)(l) states that: "[a]
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`party ... who has responded to an interrogatory, request for production, or request for
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`admission-must supplement or correct its disclosure or response ... in a timely manner if the
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`43 78598 _l.docx
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`4
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`

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`party learns that In some material respect the ... response IS incomplete or incorrect."
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`Opposition No.: 91220956
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`(Emphasis added.)
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`2. Applicant Never Objected To Opposer's
`Interrogatories And Requests For Production
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`Applicant failed to object to Opposer's discovery in his Original Answers, as required
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`under the rules. (Laine Decl. Exh. A; Fed. R. Civ. P. 33(b)(2), (b)(4), 34(b)(2).) Several weeks
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`later, Applicant decided to object in his Supplemental Answers.
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`(Laine Decl. Exh. J.) For
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`example, in his answer to deficiencies with respect to Interrogatory No. 10, Applicant stated
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`that: "I also object against this interrogatory due to its vagueness as I am not in a position to
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`establish resolute decision to any such question." (Id.) Applicant failed to object in a timely
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`manner and therefore his attempt to object amounts to avoidance of his discovery obligations.
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`Further, even if Applicant did submit a proper objection, which he did not, the objection itself is
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`improper. Applicant cannot object on the grounds that he is "not in a position to establish
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`resolute decision." (Id.) Not being able to commit to an answer is not a proper ground for
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`objection. Plainly, Applicant has not made a reasonable inquiry in an effort to respond to
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`Opposer's discovery as required by Fed. R. Civ. P. 26(g)(l).
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`3. Faulty Verification
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`Applicant failed to act in conformance with the rules when he submitted a qualified
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`verification statement. Fed. R. Civ. P. 33(b)(3) requires that all interrogatories be answered
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`under oath. In Applicants Original Answers, no verification statement or any statement under
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`oath was provided. (Laine Decl. Exh. B.) This is in clear contravention of the rules. Opposer
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`put Applicant on notice that he had failed to meet this obligation in its January 7 letter. (Id.
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`Exh. C.)
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`4378598_1.docx
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`Opposition No.: 91220956
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`Later, Applicant provided what purported to be a verification statement with his
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`Supplemental Answers.
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`(Laine Decl. Exh. J.) But, upon closer examination, the purported
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`verification statement was rendered meaningless by qualifications made in the remarks
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`accompanying the answers. Applicant stated that "with regard to those replies that are related to
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`past facts of the case, I am providing a verification at the end of this document." (I d.) This is
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`faulty as it is unclear what "past facts of the case" means. Applicant's manner of response, and
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`his equivocal statements with regard to verification, plainly evades the oath requirement and in
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`so doing circumvents the discovery process.
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`4. Specific Answers By Applicant
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`Applicant has repeatedly ignored the requirement that he provide proper responses. He
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`attempted to mask his evasion by filing supplemental responses that are no less deficient than his
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`Original Answers. (Laine Decl. Exhs. B, J.) Representative Interrogatory deficiencies include:
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`1.
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`Interrogatory No. 14: Applicant was queried to "[i]dentify and describe each ...
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`survey ... commenced or completed by Applicant ... with respect to
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`the
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`UUNIQUE mark."
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`(Jd. Exh. A.) Applicant's Original Answer stated that he
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`"made a survey" and included an unmarked table with what were purportedly the
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`results of the survey. (Jd. Exh. B.) The answer did not state the source of the
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`survey, what method was used to conduct the survey nor when it was performed.
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`Also, Applicant stated that the survey was for the "purposes of establishing the
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`strength of similar marks," which is inconsistent with the query which was
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`directed to surveys "with respect to the UUNIQUE mark." Opposer informed
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`Applicant of his deficient response in its January 7 letter.
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`(Jd. Exh. C.)
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`Applicant, in his Supplemental Answers, stated that "[t]he list that I provided has
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`Opposition No.: 91220956
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`been constantly renewed and its purpose was to discover any marks that have
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`been registered after Unique Photo." (Id Exh. J.) Surely, however, there must be
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`additional information to describe the survey beyond the list such as the
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`parameters under which it was conducted. Applicant's supplemental answers
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`failed to respond to the deficiencies, and Applicant's statement that the list "has
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`been constantly renewed" suggests that more than one survey exists. Applicant
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`has only identified one survey. For at least these reasons, Applicant has
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`completely failed to honor his discovery obligations.
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`n.
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`Interrogatory No. 17: Applicant was queried to "[i]dentify all ... trade shows or
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`conventions attended by Applicant" and to "state the activities of Applicant at
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`such shows or conventions." (Id Exh. A.) "Identify" was defined in Opposer's
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`discovery requests as, inter alia, giving the identity of a person, corporation or
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`other business entity.
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`(Id) Applicant, in his Original Answer, stated that
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`"UUnique was represented at CES [consumer electronics show] 2015 organized
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`by Brightstar" but failed to state his activities at the show. (Id Exh. B.) Activities
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`Applicant presumably conducted directly or through his agent include giveaways
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`of promotional materials, activities identified in trade show marketing materials,
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`meetings with potential customers and negotiation of terms between Applicant
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`and Brightstar or other possible distributors, agents, or customers. Applicant also
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`neglected to identify any of the persons or business entities responsible for CES
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`2015. Opposer notified Applicant of the grave deficiencies in his response in its
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`January 7letter. (Id Exh. C.) In his Supplemental Answers, Applicant stated that
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`"I am providing all information that is available to me." (Id Exh. J.) Contrary to
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`Opposition No.: 91220956
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`Applicant's statements, however, there must have been activities that took place
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`at CES 2015. One cannot be "represented at CES" and not conduct activities.
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`Both Applicant's Original Answers and Supplemental Answers are wholly
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`inadequate. Here, Applicant has decided there is no need to be evasive as he
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`blatantly ignored the query.
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`111.
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`Interrogatory No. 20: Applicant was queried to "state all known facts in support
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`of Applicant's contentions in paragraphs 11 through 34 of the Answer to Notice
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`of Opposition." (Laine Dec I. Exh. A.) Applicant, in his Original Answer, stated
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`that "[a ]ll statements ... are supported by all facts that I have been acquainted
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`with at the time the document was executed," without including any supporting
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`facts.
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`(Id. Exh. B.)
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`It is abundantly clear that Applicant has made many
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`contentions that require factual support. For example, Applicant's assertion that
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`"applicant's goods neither move in similar trade channels, nor are they legally
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`identical ... to registrants goods" must be supported by facts to show why the
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`goods do not move in similar trade channels. (I d. ｾ＠9 Exhs. C, K.) Similarly,
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`Applicant's assertion that his mark "has no similar elements in its global
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`appreciation with the other marks enlisted in the opposition" and "[i]ts graphical
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`and semantic perception is generally different than those of the other marks" also
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`requires factual support. (Id. Exh. K.) Applicant did not provide facts to show
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`why the marks have no similar elements. However, rather than tackle his failure
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`to respond to this Interrogatory, Applicant's Supplemental Answer circumvented
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`the failed initial response by stating that "I have nothing more to add on the other
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`interrogatories you are citing." (Id. Exh. J.) Contrary to Applicant's statements,
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`Opposition No.: 91220956
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`however, the contentions as presented by Applicant must be supported by facts,
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`none of which were included in Applicant's responses. To the extent Applicant
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`referred to Interrogatory No. 20 in his Supplemental Answers, "I have nothing
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`more to add" dodges the problem: The woeful insufficiency of Applicant's
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`Original Answers.
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`Representative Requests for Production deficiencies include:
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`1v.
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`Requests for Production No. 1: Applicant was requested to provide "[a]ll
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`documents identified, or the identification of which is requested, in Interrogatories
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`Nos. 1-27 to Applicant." (Id Exh. A.) Applicant's Original Answer stated that
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`"[w]e [sic] have not identified any documents." (ld Exh. B.) Applicant ignored
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`not only his duty to make a reasonable inquiry per Fed. R. Civ. P. 26(g)(1), he
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`also ignored the existence of documents blatantly identified in the interrogatories
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`and evident through his Original Answers. For example, in his Original Answers,
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`Applicant stated that "UUnique was represented at CES 2015." Applicant did not
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`provide any advertising materials for
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`the event, receipts, or any other
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`documentation such as communication between Applicant and Brightstar or any
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`other parties involved. Also in his Original Answers, Applicant stated that he
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`"made a survey ... for the purposes of establishing the strength of similar marks."
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`Applicant has failed to provide a copy of the survey as run on software he used, a
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`copy of the report produced by the software, any receipts related to the services he
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`used, documents to show when the survey was conducted or documents
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`describing key words or other methods used in the strategy for the search.
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`Opposer's January 7 letter pointed to many examples of Applicant's deficient
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`Opposition No.: 91220956
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`response.
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`(Id. Exh. C.) Nonetheless, in a brazen Supplemental Answer,
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`Applicant stated that "no documents are to be sent," notwithstanding that
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`documents were evident through his Original Answers such as those above and
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`identified in the interrogatories. (Id. Exh. J.) Applicant's continued denial as to
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`the existence of documents is misplaced, as documents must exist that relate to
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`the interrogatory requests. Clearly, Applicant has no intent in meeting his
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`discovery obligations and responding to Opposer's document demands. This
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`could not be more evident than in Applicant's own words. In his Supplemental
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`Answers, he stated: "should you wish to challenge this position, you should
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`pursue other procedural steps."
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`v.
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`Requests for Production No.6: Applicant was requested to provide documents to
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`identify "all present, proposed or contemplated distributors and/or licensees
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`offering goods or services ... by reference to Applicant's UUNIQUE mark." (Id.
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`Exh. A.) Applicant's Original Answer stated that he has "never used UUNIQUE .
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`. . in relation to any sales in the United States ... and [he has] no specific plans
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`related to ... [his] prospective business in the United States."
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`(Id. Exh. B.)
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`However, Applicant has stated that "UUnique was represented at CES 2015
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`organized by Brightstar." (Id.) Thus, contrary to Applicant's statements, there
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`must be documents based on the relationship between Applicant and Brightstar
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`for CES 2015. Applicant has clearly evaded the request and failed to satisfy his
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`obligations. Applicant must have receipts, letters, contracts, e-mails or other
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`documents related to the representation of UUNIQUE at CES 2015 and with
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`respect to the parties Applicant was in contact with for its representation at CES
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`43 78598 _l.docx
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`Opposition No.: 91220956
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`2015. Opposer notified Applicant of his deficiencies in its January 7 letter.
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`(Laine Decl. Exh. C.) Nonetheless, Applicant ignored the notice and proceeded to
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`provide another deficient response in his Supplemental Answer, only stating that
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`"no documents are to be sent." (Id. Exh. J.) Applicant's actions suggest he is not
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`interested in cooperating to fulfill his discovery obligations.
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`5. Silence As To Extension Of Time
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`Because Applicant has continually hindered the discovery process, as described, supra,
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`Opposer has made repeated offers to Applicant to agree to an extension of time to resolve the
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`discovery issues. However, in accord with Applicant's behavior regarding his discovery
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`obligations, Applicant has spumed and otherwise completely ignored Opposer's offers.
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`Opposer first offered to agree to an extension of time in its January 7th letter addressing
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`Applicant's Original Answers. (Laine Decl. Exh. C.) Opposer stated that if Applicant could not
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`obtain answers by January 13, 2016, Opposer would be amenable to an agreement to request a
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`delay to the dates on the trial schedule to allow Applicant the time necessary to provide answers.
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`(I d.) However, Applicant ignored the offer and instead chose to declare that Opposer is "not in a
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`position to impose deadlines." (I d. Exh. E.)
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`On January 14, in a second attempt to broach the topic of the trial schedule and amicably
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`facilitate the procurement of complete discovery responses, Opposer sent Applicant an e-mail
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`with an offer to agree to an extension of time, particularly because Applicant had failed to fulfill
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`its discovery obligations.
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`(Id. Exh. F.) To simplify the process, Opposer attached a joint
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`stipulation with the e-mail for signature by the Applicant. (I d.) To the extent Applicant sent
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`correspondence after January 14th, he failed to even acknowledge that Opposer had offered to
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`agree to seek an extension of time. (I d. Exh. J.) Simply put, Applicant has continually evaded
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`11
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`Opposer's requests in what amounts to a greatly reduced chance for successful completion of
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`Opposition No.: 91220956
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`discovery.
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`IV.
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`SUBMISSION REQUIREMENTS
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`As required under 37 C.P.R. § 2.120(e), a copy of the interrogatories and requests for
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`production and a copy of Applicant's answers are included in Exhibits A, B, and J of the Laine
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`declaration, respectively. A list and brief description of documents that were not produced for
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`inspection is included in Exhibit C of same.
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`Further, as described above and in the Laine declaration at paragraph 10, Opposer has
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`made a good-faith effort to resolve the issues presented in the motion pursuant to TBMP
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`§ 408.01(c) prior to seeking relief from the Board. (Laine Decl. ｾ＠10.) Applicant has failed to
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`provide complete responses to Opposer's discovery requests. (I d. Exhs. A, C.) Applicant has
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`also failed to acknowledge Opposer's efforts to have the parties agree to seek an extension of the
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`trial period for the purposes of fulfilling discovery obligations. (Id. Exhs. C, F.)
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`In another approach to obtain a resolution to the dispute, Opposer sent a letter that
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`included new terms for settlement. (Id. Exh. H.) In this letter, Opposer indicated that it would
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`forego any challenge to the UU mark owned by Applicant (Reg. No. 4,766,488) if Applicant
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`would agree to abandon his UUNIQUE application. Applicant has failed to acknowledge or
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`respond to this settlement offer. (I d.)
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`V. CONCLUSION
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`Nothing can be clearer than Applicant's own words to describe the predicament of
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`Opposer, as Applicant has stated that "I reserve my right to change my opinion regarding any
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`answer at any time. . . . No liability will be accepted based on any of the answers." (Laine
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`Decl. Exh. C.) With regard to Applicant's failure to provide proper answers, Applicant stated
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`Opposition No.: 91220956
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`that "should you wish to challenge this position, you should pursue other procedural steps."
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`(Laine Decl. Exh. J.) For the reasons stated herein, Opposer respectfully requests that the Board
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`grant its Motion to Compel and order Applicant to provide additional information for its
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`deficient Interrogatory responses Nos. 5, 7, 10, 11, 14, 15, 17-20, and 26 and to produce all
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`documents responsive to Opposer's Requests for Production of Documents and Things Nos. 1, 6,
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`7, 20, 22, and 29. Opposer also respectfully requests that the Board compel Applicant to provide
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`all of its responses to Opposer's requests without improper qualification and to further provide a
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`verification statement without qualification.
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`Accordingly, Opposer requests that this opposition be suspended and that the Board issue
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`an Order compelling Applicant to supplement its prior responses to interrogatories and to fully
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`respond to Opposer's document requests pursuant to TBMP § 523 and 37 C.F.R. § 2.120(e).
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`Dated: January 28, 2016
`
`LERNER, DAVID, LITTENBERG,
`KRUMHOLZ & MENTLIK, LLP
`ｾＢｦＮｕｊｬｲｊｋ･ｲ＠Unique Photo, Inc.
`
`. Laine
`1el
`600 South A venue West
`Westfield, NJ 07090-1497
`Tel:
`908.654.5000
`Fax:
`908.654.7866
`E-mail: dlaine@lemerdavid.com
`litigation@lemerdavid.com
`
`43 78598 _l.docx
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`13
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`

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`CERTIFICATE OF SERVICE
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`I hereby certify that a true copy of the within OPPOSER'S MOTION TO COMPEL
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`DISCOVERY PURSUANT TO 37 CFR § 2.120(e) AND BRIEF IN SUPPORT OF MOTION
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`was served upon the following applicant of record this 28th day of January, 2016, by overnight
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`courier and addressed as follows:
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`VIA FEDERAL EXPRESS (+44.o.208.434.3sol)
`AND VIA E-MAIL
`Attn: Sanjay Agarwal
`Aegis Vision Limited
`Boundary House, Boston Road
`London, UK W7 2QE
`E-mail: sanjay@aegis.uk.com
`
`UPHOTO 10.20-064
`Opposition No.: 91220956
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`

`
`TRADEMARK
`UPHOTO 10.20-064
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`UNIQUE PHOTO, INC.,
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`v.
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`Opposer,
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`Mark: UUNIQUE
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`Serial Number: 79/153,014
`
`SANJAY AGARWAL,
`
`Opposition No. 91220956
`
`Applicant.
`
`X
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`DECLARATION OF DANIEL P. LAINE IN SUPPORT
`OF OPPOSER'S MOTION TO COMPEL DISCOVERY
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`I, DANIEL P. LAINE, hereby declare and state as follows:
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`1.
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`I am an associate at the law firm of Lerner, David, Littenberg, Krumholz &
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`Mentlik, LLP, counsel for Opposer Unique Photo, Inc., in the above-identified opposition
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`proceeding. I am of legal age, competent to testify, and have personal knowledge of the facts set
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`forth herein. I make this declaration to identify and provide exhibits referenced in Opposer's
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`motion to compel discovery and to declare that I have made a good-faith effort to resolve the
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`issues presented in the motion.
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`2.
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`On December 1, 2015, Opposer served Opposer's Interrogatories Nos. 1-27,
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`Requests for Production of Documents and Things Nos. 1-30 and Requests for Admission 1-10
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`to Applicant. Attached hereto as Exhibit A is a true and correct copy of Opposer's
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`Interrogatories Nos. 1-27, Requests for Production of Documents and Things Nos. 1-30 and
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`Requests for Admission 1-10 to Applicant.
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`3.
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`On December 29, 2015, Applicant responded to such interrogatories, requests for
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`production, and requests for admission. Attached hereto as Exhibit B is a true and correct copy
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`

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`Opposition No.: 91220956
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`of Applicant's Answer to Opposer's Interrogatories Nos. 1-27, Requests for Production of
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`Documents and Things Nos. 1-30 and Requests for Admission 1-10 to Applicant.
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`4.
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`In a letter dated and sent to Applicant on January 7, 2016, via e-mail as an
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`attachment, Opposer detailed deficiencies it perceived with respect to Applicant's responses to
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`Opposer's discovery requests. Attached hereto as Exhibit C is a true and correct copy of the
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`letter and the e-mail that included the letter as an attachment. Attached hereto as Exhibit Dis a
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`true and correct copy of the delivery receipt for the e-mail.
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`5.
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`In an e-mail dated and sent on January 11, 2016, Applicant responded to
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`Opposer's letter of January 7, 2016. Attached hereto as Exhibit Eisa true and correct copy of
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`the e-mail sent from Applicant on January 11, 2016.
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`6.
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`In an e-mail dated and sent to Applicant on January 14, 2016, Opposer made an
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`offer to Applicant to agree to a request for an extension of time from the Board for the remainder
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`of the proceedings. An unsigned joint-stipulation to this effect was attached to the e-mail for
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`Applicant's signature. Attached hereto as Exhibit F is a true and correct copy of the e-mail and
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`joint-stipulation attached to the e-mail. Attached hereto as Exhibit G is a true and correct copy
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`of the delivery receipt for the e-mail.
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`7.
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`In a letter dated and sent to Applicant on January 14, 2016, via e-mail as an
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`attachment, Opposer offered new terms of settlement to Applicant. Attached hereto as Exhibit H
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`is a true and correct copy of the letter and the e-mail that included the letter as an attachment.
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`Attached hereto as Exhibit I is a true and correct copy of the delivery receipt for the e-mail.
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`8.
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`In a letter dated and sent on January 25, 2016, via e-mail as an attachment,
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`Applicant responded a second time to Opposer's letter of January 7, 2016. Attached hereto as
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`2
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`

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`Opposition No.: 91220956
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`Exhibit J is a true and correct copy of the letter and the e-mail that included the letter as an
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`attachment.
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`9.
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`On April30, 2015, Applicant served his Answer to Notice of Opposition.
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`Attached hereto as Exhibit K is a true and correct copy of the Answer to Notice of Opposition.
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`10.
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`I, Daniel P. Laine, have made a good-faith effort by correspondence to resolve
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`with the other party the issues presented in the motion, and have been unable to reach agreement.
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`I declare under penalty of perjury that the foregoing statements are true and correct.
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`Executed
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`3
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`

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`EXHIBIT A
`
`EXHIBIT A
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`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`TRADEMARK
`UPHOTO 10.20-064
`
`UNIQUE PHOTO, INC.,
`
`Marlc UUNIQUE
`
`Opposer,
`
`Serial Number: 79/153,014
`
`Opposition No. 91220956
`
`v.
`
`SANJAY AGARWAL,
`
`Applicant.
`---------------------------------
`
`X
`
`Filing Date: February 24, 2015
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`OPPOSER'S INTERROGATORIES NOS. 1-27, REQUESTS FOR
`PRODUCTION OF DOCUMENTS AND THINGS NOS. 1-30 AND REQUESTS FOR
`ADMISSION 1-10 TO APPLICANT
`
`Pursuant to 37 C.P.R. §§ 2.116 and 2.120 and Fed. R. Civ. P. 33, 34 and 36, Opposer
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`Unique Photo, Inc. (hereinafter "Opposer") submits the following Interrogatories, Requests For
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`Production of Documents and Things and Requests for Admission to Applicant, Sanjay Agarwal
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`(hereinafter "Applicant"), and requests that specific and full answers to the Interrogatories, under
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`oath, production of the requested documents and things for inspection and copying and Requests
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`for Admission, be provided to Opposer at the offices of Lerner, David, Littenberg, Krumholz &
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`Mentlik, LLP, 600 South Avenue West, Westfield, New Jersey 07090, within thirty (30) days
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`after service.
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`

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`Opposition No.: 91220956
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`DEFINITIONS AND INSTRUCTIONS
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`A.
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`These Interrogatories, Requests for Production of Documents and
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`Requests for Admission seek answers as of the date answered, but are also continuing so that any
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`additional information relating to answers to these Interrogatories, Requests for Production of
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`Documents and Requests for Admission which the Applicant acquires or which becomes known
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`to Applicant, up to and including the time for hearing, shall be furnished to Opposer promptly
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`after such information is acquired or becomes known, pursuant at least Fed. R. Civ. P. 26(e)(l)
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`and (2).
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`B.
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`As used herein, the term "document" is used in its customary broad sense
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`and includes, without limitation, all printed, recorded, filed, reproduced, electronic, or written
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`material or physical thing whatsoever.
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`C.
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`As used herein, "person" means any natural person, corporation,
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`association, firm, partnership, or other business or legal entity.
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`D.
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`As used herein, to "identify," or give the "identity" of, with respect to
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`persons, means to give, to the extent known, the person's full name, present or last known
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`address, and present or last known place of employment. Once a person has been identified in
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`accordance with this paragraph, only the name of that person need be listed in response to
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`subsequent discovery requesting the identification of that person.
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`E.
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`As used herein, to "identify," or give the "identity" of, with respect to
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`documents, means to give, to the extent known, the type of document, the general subject matter,
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`2
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`

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`Opposition No.: 91220956
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`the date of the document, and the author(s) and recipien