Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
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`ESTTA Tracking number:
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`ESTTA725779
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`Filing date:
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`02/09/2016
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Proceeding
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`91220956
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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
`Sanjay Agarwal
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`SANJAY AGARWAL
`AEGIS VISION LIMITED
`BOSTON RD, BOUNDARY HOUSE
`LONDON W7 2QE,
`UNITED KINGDOM
`zlatinzlatev@yahoo.com
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`Opposition/Response to Motion
`
`Sanjay Agarwal
`
`zlatinzlatev@yahoo.com
`
`/Sanjay Agarwal/
`
`02/09/2016
`
`Attachments
`
`RESPONSE TO THE MOTION FINAL.pdf(1769033 bytes )
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`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Mark: UUNIQUE
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`Serial Number: 79/153,014
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`Opposition No. 91220956
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`UNIQUE PHOTO, INC.,
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`v.
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`SANJAY AGARWAL,
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`Opposer,
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`Applicant.
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`I. Response to the Motion to Compel
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`INTRODUCTION
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` I
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` have replied in full to all discovery requests of the opposer providing very detailed answers to all
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`of their requests for admissions, requests for documents and things and interrogatories. All
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`responses that I have provided are fully compliant with the procedural rules and reflect fully and
`comprehensively all facts of the case. The opposer’s allegations are based on their unwillingness
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`to accept that the facts that were ascertained during the discovery are not in their interests and will
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`lead to rejection of their opposition and registration of my applied-for trademark UUNIQUE.
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`Aiming to slow down the proceedings, the opposer is filing the present motion to compel without
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`having any substantive or procedural grounds to do so.
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`All my answers are coherent and complete and although most of the discovery requests were not
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`in any manner related to the facts of the case, I provided thorough and exhaustive answers as my
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`interest is in the prompt resolution of this case where the opposer has clearly no substantive rights
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`1
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`that can be opposed to my registration. All facts that were testified are correct and precise.
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`However, whereas some of the requests were related to my opinion with regard to the legal
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`qualification of these facts or their other interpretation, I tried to provide answers, making one
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`general remarks which was quoted deceptively and partially by the opposer.
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`I did not agree to delay the remaining dates of the trial since I believe that the facts of the case are
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`represented in sufficient details so that the case can be successfully resolved. As the opposer
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`comprehends that these facts are not in interest of the position that it holds in the proceeding, it is
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`trying to slow it as much as possible and thus postpone the decision. The assertion that the opposer
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`was trying to identify if my trademark can cause likelihood of confusion based on some
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`interrogatories addressed to me is not correct. I have no other information related to the goods that
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`I will be protecting with my trademark but the list of goods which the board already has. The
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`opposer is not satisfied with this response as it is evident, that there are no common goods between
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`those that I am trying to protect with my registration and those that were already registered with
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`the trademarks of the opposer. A comparison between these groups of goods can easily be done on
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`the basis of the materials that were already sent to the Board and it can even be seen, that the
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`products are no within the same class of products.
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`As I have provided all information that I have regarding this case, I do not see any grounds for the
`opposer’s motion and I would like to request that you reject it.
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`STATEMENT OF FACTS
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`The facts presented by the opposer are incomplete and exaggerated. I responded to the opposer’s
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`discovery requests fully and exhaustively, which included answers to many points which were too
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`burdensome, unreasonable or unrelated to the facts of the case. You could note that the overall
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`number of requests has been about eighty (80) whereas my requests were only six (6) and the
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`opposer refused to answer to them. After I received another request from the opposer where some
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`of the questions were modified or slightly changed, and where it was proposed that we change the
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`dates of the case in order to allow for longer discovery period. Further to that, the opposer has been
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`complaining of various deficiencies of the responses that I provided, none of which were grounded.
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`2
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`This second request has been clearly sent with regard to the worsened perspectives that the
`applicant has in the proceeding and the opposer’s willingness to slow down, suspend or in any
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`other way to extend the time of the present opposition.
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`Few examples of the opposer’s second discovery requests may demonstrate the opposer’s
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`unwillingness to use the discovery for genuine clarification of the facts of the case, but only for
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`postponement and complication of the proceedings. The opposer complained about my general
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`remark regarding the interpretation of the facts of the case that they requested me to do. In my
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`answer to them I reassured them that I have made all possible efforts in order to provide full and
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`comprehensive answers to all their interrogatories and requests for admissions and documents.
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`Although the greater part of them had been too burdensome or not related to the facts of the case,
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`I had not objected to them in the interest of providing as full and comprehensive information as
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`possible that would lead to prompt and fair decision which we expect at the end of the proceedings.
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`However I added that in the cases where the opposer is requesting me to provide opinion or any
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`other form of interpretation of certain facts (and not the facts themselves), they should be aware
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`that such interpretations do not have binding effect upon me. My opinion was that it is in the sole
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`discretion of the Board to make the relevant conclusions based on these facts and not myself. I also
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`added that any legal interpretations, even if they were included in the discovery responses, should
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`not be subject to the Federal Rules of Evidence as they do not represent facts of the respective case
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`and therefore any other party might at the times provided by the procedural laws, to submit new
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`legal interpretation of the case with which, at the end, the Board will not be obliged to conform. I
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`further added that on the contrary, if any such interpretation were related to the applicable law, the
`Board is free to take any positions that considers suitable regardless of any party’s legal opinion
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`thereof.
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`I also added that similar conclusion might be made in relation to other parts of the opposer’s
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`interrogatories and requests for admissions where they were seeking my opinion about future facts.
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`I advised them that the purport of the discovery proceeding is to ascertain and clarify past and
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`present facts that are relevant to the case and therefore, for similar reasons, I am neither bound with
`such opinions nor they represent any form of contract between the opposer’s client and myself and
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`they therefore can be changed at any time.
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`3
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`Whereas the correspondence between us is concerned, I replied to every e-mail to letter that I
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`received by the opposer. Although the opposer is represented by few professional lawyers who
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`claim to be specialists in the substantive and procedural laws regarding the opposition, I am
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`participating on my own and therefore I am unable to answer to all their letters and e-mails
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`instantaneously. However, I provided detailed answers to all of them within week or ten-day term
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`which in my opinion is sufficiently prompt, especially whereas the volume of the materials that are
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`discussed is taken into account.
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`The opposer’s allegation that I did not respond to their letters of 14 January is not true. My response
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`is attached to the present document. The opposer further claims that a settlement has been offered.
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`This is also not true, as the opposer during the whole course of the proceedings has never sought
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`to reach any settlement of the case. Whereas the settlement of the case would suppose mutual
`compromises made by both sides, the opposer’s proposal was that I abandon the registration and
`never use the word ‘unique’ in the course of the prospective business in the United States.
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`The last offer by the opposer seems to be based on the assumption that the opposer has exclusive
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`rights on the word UNIQUQ and any other words that simply contain the letter U for all possible
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`products and services that might exist. Based on such views, the opposer suggested that if I abandon
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`the application for UUNIQUE trademark, it will not challenge another trademark that I already
`registered in the United States – UU. However, the mark that I have already registered, neither
`contains the word UNIQUE nor includes any of the products protected by the opposer’s trademark.
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`On contrary, our proposals for settlement were reasonable and fair, taking into account the existing
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`substantive law on trademark rights and the interests of both parties. However, the opposer has
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`always been completely irresponsive to such offers, insisting that the only solution for a settlement
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`will be if I abandon my application and do not try to sell any of those products that I am currently
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`selling in the United Kingdom under UUNIQUE trademark regardless of the fact that the opposer
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`has no common or any other rights in relation to those products.
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`ARGUMENT
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`4
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`The rule which is quoted by the opposer and on which it bases its motion to compel relates to
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`limited number of cases which common element is that the other party does not provide responses
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`to the discovery requests. As it has been explained above, this is not the case in the present
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`opposition as I have provided full answers to all requests. Therefore it might be concluded that the
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`opposer has no procedural right in the present opposition as the conditions for motion to compel as
`stated in 37 C.P.R. § 2.120(e), are not satisfied.
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`Contrary to the opposer’s emotional qualifications regarding my responses, it might be seen that I
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`have provided answers to all of the requests meticulously and precisely. The opposer is not happy
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`with my answers not because they are not available. On the contrary, my answers clearly and
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`undoubtedly demonstrate that there are absolutely no conditions for likelihood of confusion. For
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`example, comparison between the products leads to the conclusion that there are no common or
`close products, or even no products within the same class, between my mark and the opposer’s
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`marks. Further to that I was obliged to provide information about my prospective distributors in
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`the United States. This is not possible as I have never sold any products in the United States and I
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`have no distributor there that is attempting to sell any such products. The opposer claims that this
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`information will show that the products will be sold through similar channels and this could cause
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`likelihood of confusion. This conclusion is wrong again as, apart from the fact that we do not
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`produce similar products, the requested information cannot lead to a conclusion that similar or
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`identical trade channels were to be used. At this point it might be further added that it is not only
`within the registration of the opposer’s trademarks where no similar products can be found – I have
`made a thorough research of the opposer’s website where they sell all their products and there were
`no similar products to those that I am trying to protect with my trademark that bear the opposer’s
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`trademark.
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`Thus it can be concluded that the opposer is not satisfied with my responses as they very clearly
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`and unquestionably demonstrate that there is no likelihood of confusion between my mark
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`UUNIQUE and their marks enlisted in the notice of opposition. However this does not entitle the
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`opposer to the motion to compel and therefore I would like to request you to reject it.
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`5
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`1. Alleged Disregard of Discovery Process
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`The opposer claims that I did not observe the procedural rules that regulate the discovery
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`proceedings. The main argument is that I have made one general qualification that relates only to
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`cases when I am requested to provide my interpretation of the facts or to make a legal conclusion
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`based on certain facts that the opposer supposedly wrongly believes that exist. However, as I have
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`mentioned above, my remark is made with regard to cases where the opposer is requesting me to
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`provide opinion or any other form of interpretation of certain facts (and not the facts themselves),
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`then the opposer should be aware that such interpretations do not have binding effect upon me. My
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`opinion was that it were not myself, but it is in the sole discretion of the Board to make the relevant
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`conclusions based on these facts. I also added that any legal interpretations, even if they were
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`included in the discovery responses, should not be subject to the Federal Rules of Evidence as they
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`do not represent facts of the respective case and therefore any other party might at the times
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`provided by the procedural laws, to submit new legal interpretation of the case with which, at the
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`end, the Board will not be obliged to conform. I further added that on the contrary, if any such
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`interpretation were related to the applicable law, the Board is free to take any positions that
`considers suitable regardless of any party’s legal opinion thereof.
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`I have provided certification that all facts that I described in my responses, to the best of my
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`knowledge, information and belief are complete and correct. Therefore I believe that there is
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`nothing to be added, amended or supplemented in any of the answers that I provided. They clarify
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`the factual status of the case sufficiently and there are no procedural grounds for the motion that
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`was submitted by the applicant.
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`The opposer states that I rejected to rectify the deficiencies in my respond and did not do that in a
`timely manner. Indeed I was not in an obligation to respond to the opposer’s additional requests as
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`those that I already sent were in compliance with the relevant procedural rules. However, as my
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`intention in this case has always been to assist to the other party and the Board so that all relevant
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`facts are represented clearly and undoubtedly, I sent a second response in a timely manner. The
`expressions ‘in due course’ and ‘in timely manner’ have identical meaning and therefore the
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`6
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`objections that the opposer raises against the fact that I used the former expression can be qualified
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`as otiose or place by mistake in the motion to compel.
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`2. General Objections against the Discovery Requests
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` I
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` did not provide initially any general objections against the opposer’s as I genuinely intended to
`provide answers to all questions of the case. Should any of the opposer’s items were not in
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`conformity with the procedural law, I do not consider this as a reason that might in any manner
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`affect in negative perspective my position on the case. I am confident that the facts of the case,
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`whereas my part is considered, are relatively plain and simple and I would not mind to represent
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`them before the Board in their entirety and completeness. However, it seems that the opposer tries
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`to hold me responsible for the lack of documents that were never produced by myself or of which
`I never had any information. In that respect, the opposer’s motion to compel can never be successful
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`as no procedural step can bring into the reality a non-existent document.
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`3. Allegations of Faulty Verification
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`The verification that I provided is in compliance with the procedural rules. However, I am ready to
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`reproduce it once more it if this is to be found appropriate.
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`4. Comments on some of my specific answers
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`The opposer’s comments and requests for amendments of my responses, apart from having the
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`above deficiencies, were not specific at all. The general impression is that they were sent simply to
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`complicate and delay the opposition. Few examples can clearly represent this.
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`The opposer criticised my respond to interrogatory No 5 stating that it must have been untrue. Such
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`conclusion can in no manner be inferred from the information that is available in the case and a
`closer look at the questions shows that the opposer asks for information related to any “each and
`other trademarks, in addition to UUNIQUE”, where I am planning to use or intend to use in the
`marketing of the goods or services in the United States any form of the word “unique.” It is not
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`7
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`clear why the opposer thinks that this answer is not true, whereas indeed I am not planning to use
`the word “unique” in any other trademark. Further to that, it is not clear why this information is
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`relevant to the case. The opposer does not have any specific intellectual rights over the word
`‘unique’ and as it can be seen, thousands other trademarks that are already registered in the United
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`States contain this word. Besides that, the opposition is raised against a specific mark and the
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`opposer is not able to prevent me from registering any future marks, including those, containing
`the word ‘unique’ in the present proceedings.
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`In my answer to your interrogatory No 10 I am explaining in details how any decisions related to
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`usage of UUNIQUE trademark in the United States will be taken. There are no persons that can be
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`further identified, besides me, in relation to any such prospective plans. Further to that, the
`opposer’s question is unclear and ambiguous and is not related to the facts that are relevant to the
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`pending opposition proceeding. I also objected against this interrogatory due to its vagueness as I
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`am not in a position to establish resolute decision to any such question. The opposer requires that
`I do some form of quantification of other people’s knowledge on certain topic. If the opposer would
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`like me to do that, it should state the applicable methods on which such quantification might be
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`feasible and the relevant conditions in which it is to be done. Also, the opposer should note the
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`scale on which the results of any such quantification is to be assessed. However, any such
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`procedure, apart from being too burdensome and expensive, will not in any manner contribute to
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`clarification of the facts of the case where likelihood of confusion between two trademarks in
`disputed and third party’s knowledge on such legal questions is in no way relevant to the case.
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`In the opposer’s comments to my answer to interrogatory No 14 the opposer is making some legal
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`conclusions with regard to the legal qualification of my answer. However, the purpose of the
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`discovery proceedings is different. The list that I provided has been constantly renewed and its
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`purpose was initially to identify all marks that are similar to the one that I have applied for
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`registration and which is subject to the present opposition. Whereas the distinctive word of the
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`mark and with regard to which this opposition is raised, it can be further used for demonstration of
`the strength of the opposer’s marks mentioned in the notice of opposition that contain the word
`‘unique’ and that are registered in the same classes where I have applied for. I do not keep any
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`additional information of the survey which has been made using the electronic search system of
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`8
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`the United States Patent and Trademark Office (USPTO). I have made the search trying to provide
`a list of all trademarks that included the words ‘unique’ and which were registered in the classes
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`that I applied for. I keep in the results of the search in a simple electronic document whose previous
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`versions were not stored at all. For this reason I can only present the last version which also includes
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`marks that were registered after my application. The survey showed that there are many other marks
`which contain the word ‘unique’ with products that are completely identical to those that I applied
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`for, but which were not opposed by the opposer and thus demonstrating that the strength of Unique
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`Photo mark is very low. However this result was not satisfactory for the opposer, but it in no manner
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`affects the importance or the relevance of my answer to this interrogatory and there is no further
`answer that can be provided. Therefore the opposer’s conclusion that I completely failed to honour
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`my discovery obligation is entirely wrong. On the contrary, I provided the most detailed and up to
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`date survey that not only demonstrates my constant efforts to evaluate fairly and objectively the
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`possibilities for likelihood of confusion regarding the mark that I have applied for, but also my
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`willingness to cooperate into resolving the pending opposition.
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`I have provided all information related to the trade show mentioned in the opposer’s motion. There
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`are no printed or any other materials that are available in relation to my participation there. I did
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`not have any meetings with potential distributors.
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`The onus of proof that the there is a likelihood of confusion is for the opposer. Therefore its
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`assertion that I have to provide evidence related to the trade channels that I am going to use is not
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`in line with the procedural rules. I am not obliged to have any preliminary information about my
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`prospective trade channels prior registration of my trademark.
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`5. Alleged silence with regard to the Extension of Time
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`As I have explained herein above, it is not myself, but the opposer who tries to hinder and delay
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`the discovery process and the whole opposition proceeding. The offers of the opposer for extension
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`of the time have not been accepted as they do not purport to facilitate the discovery or the opposition
`in general. I have replied to all of the opposer’s e-mails and letters timely, but clearly refused to
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`9
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`accept extension of the times of the proceeding or to abandon my application for registration of
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`UUNIQUE trademark, as the opposer proposed.
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`The opposer has never made a good-faith effort to resolve the alleged issues presented in the motion
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`prior seeking relief from the Board. I have provided extensive responses to all discovery requests,
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`including the additional responses that were sent on 25 January 2016. I have no further information
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`to add or any documents to provide that can in any matter be related to the proceeding.
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`Therefore I request the Board to reject the Motion.
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`II. Facts of the Case
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`In the case has been established that there are no common or related products to those that I have
`included in my application for registration of UUNIQUE trademark and the opposer’s trademark.
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`Further to that, the opposer states that they sell products that are identical with those in my
`application, but these products neither bear the opposer’s trademark nor are they included in their
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`registrations. The opposer sells thousands of products of various types through their website which
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`do not bear any of the trademarks owned by the opposer and only two of these products are identical
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`to those included in my application. However, there are hundreds of trademarks in the United States
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`that contain the word UNIQUE and that sell products that are much closely related to those sold by
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`the opposer or protected by the trademarks that the opposer enlisted in its notice of opposition.
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`III. Our Attempts to Resolve the Case Amicably
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` I
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` have made few attempts to resolve the case amicably, but the intention of the opposer expressed
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`during the telephone conversation with the Board that such settlement is possible, was false. The
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`opposer in all correspondence stated that they cannot make any compromise regarding the case and
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`the only option for amicable solution is if I abandon the registration or if I register the mark in
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`different classes (in which I am not interested at all). Enclosed are few e-mails that we have
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`exchanged with the opposer. I have even engaged a United States Attorney to negotiate fair and
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`reasonable terms for such settlement, but the requirements of the opposer seemed not be reasonable
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`10
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`and taking into consideration the applicable laws of the United States. Attached is the later that has
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`been sent by the attorney that attempted to assist into reaching a reasonable settlement with the
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`opposer.
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`The later offers for settlement of the opposer were ridiculous and threatening. I tried to propose
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`reasonable and fair terms which would account for interests of the both parties. In return, the
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`opposer suggested that I should abandon my application and they will not challenge a trademark
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`that I have already registered in the US, although they had no legal grounds for challenging of this
`mark. All of the opposer’s proposals for settlement aimed either to delay the procedure or to
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`threaten me so that I cancel my application for registration of UUNIQUE trademark in the United
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`States.
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`IV. Conclusion
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`There are neither procedural nor substantive grounds for the motion to compel. I have provided
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`two sets of detailed answers to the discovery requests of the opposer, whose only aims in the
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`proceedings is to delay them in order to evade the final decision. I have made many attempts for
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`amicable resolution of the case, but the opposer remained unresponsive to them. Therefore I
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`would like to request that the Board rejects the motion to compel filed by the opposer.
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`
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`Dated __9 Fabruary 2016________.
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`
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`___/Sanjay Agarwal/_________________
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`[Sanjay Agarwal]
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`
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`11
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`
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`CERTIFICATE OF SERVICE
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`The undersigned hereby certifies that on this 9th day of February 2016, a true copy of the
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`foregoing RESPONSE was served in the following manner: VIA overnight COURRIER at
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`the following addresses:
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`
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`DANIEL P LAINE
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`LERNER DAVID LITTENBERG KRUMHOLZ & MENTLIK
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`600 SOUTH AVENUE WEST
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`WESTFIELD, NJ 07090
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`UNITED STATES OF AMERICA
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`
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`Unique Photo Inc.
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`123 US Highway 46
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`Fairfield, NJ 07004
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`UNITED STATES OF AMERICA
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`
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`VIA EMAIL at the following addresses:
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`dlaine@ldlkm.com, bsales@ldlkm.com, litigation@ldlkm.com
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`12
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`From: "Shimomura, Kimberly" <kshimomura@hselaw.com>
`To: ZLATIN ZLATEV <zlatinzlatev@yahoo.com>
`Cc: Sanjay Agarwal <sanjay@aegis.uk.com>; Sumit Agarwal <Sumit@aegis.uk.com>; Raj Bahl
`<raj@aegis.uk.com>
`Sent: Tuesday, August 11, 2015 7:24 PM
`Subject: RE: Engagement Letter [HSELAW-WORKSITE.FID652891]
`
`
`Dear Zlatin,
`
`I spoke with counsel for Unique Photo today. As you know, the attorney is Daniel Laine, who
`graduated from law school in 2014 and was just admitted to practice in 2015. He is not experienced
`in law and certainly not in this field.
`
`I asked hi(cid:373) if his settle(cid:373)e(cid:374)t p(cid:396)oposal to you (cid:449)as his (cid:272)lie(cid:374)t’s a(cid:272)tual positio(cid:374) o(cid:396) if he (cid:449)as just taki(cid:374)g
`advantage of a pro se litigant. He said that it (cid:449)as his (cid:272)lie(cid:374)t’s legiti(cid:373)ate positio(cid:374) a(cid:374)d the(cid:396)efo(cid:396)e I
`responded to his proposal as follows:
` His settle(cid:373)e(cid:374)t (cid:396)e(cid:395)uest that (cid:449)e a(cid:271)a(cid:374)do(cid:374) Class 14 is i(cid:374)app(cid:396)op(cid:396)iate si(cid:374)(cid:272)e they did(cid:374)’t e(cid:448)e(cid:374)
`oppose that class. E(cid:448)e(cid:374) if U(cid:374)i(cid:395)ue Photo (cid:449)o(cid:374) this oppositio(cid:374), it (cid:449)ould(cid:374)’t (cid:271)e a(cid:271)le to stop us
`from registering the Class 14 goods;
` His proposal that we agree not to sell in the US or import or export to/from the US any
`products in classes 9 or 14 was absurd since it was not limited to any specific trademark, but
`simply a broad restraint on trade. He would never be entitled to this type of relief in this
`action or any other action in the US;
` His request that we not use UNIQUE alone could be incorporated into a broader settlement
`agreement.
`
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`I advised him that his position was weak due to the dilution in the field of UNIQUE marks and, under
`the law, a retailer is not permitted to stop use of its mark on all goods that may pass through the
`retailer.
`
`I said that if he is serious about settlement, I would advise Sanjay to resolve this matter by removing
`(cid:862)(cid:272)a(cid:373)e(cid:396)a (cid:272)ases(cid:863) f(cid:396)o(cid:373) the des(cid:272)(cid:396)iptio(cid:374) of the Class (cid:1013) goods, (cid:271)ut (cid:396)ight (cid:374)o(cid:449), I do(cid:374)’t see a(cid:374)y (cid:396)easo(cid:374) to
`offer more toward a resolution. He ad(cid:448)ised that he is(cid:374)’t pe(cid:396)(cid:373)itted to (cid:373)ake a(cid:374)y de(cid:272)isio(cid:374)s i(cid:374) this
`matter and must speak to the partner in charge. He said that he would have a response to me in one
`week. If I ha(cid:448)e(cid:374)’t hea(cid:396)d f(cid:396)o(cid:373) hi(cid:373) (cid:271)efo(cid:396)e August 1(cid:1012), I (cid:449)ill follo(cid:449) up (cid:449)ith hi(cid:373).
`
`
`Please let me know if you have any questions.
`
`
`Best,
`Kim
`
`
`
`
`
`
`Kimberly I. Shimomura
`Harter Secrest & Emery LLP, Attorneys and Counselors
`1600 Bausch & Lomb Place, Rochester, NY 14604-2711
`Firm 585.232.6500 Direct 585.231.1382
`Fax 585.232.2152 KShimomura@hselaw.com
`vCard
`www.hselaw.com
`
`

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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`UNIQUE PHOTO, INC.,
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`v.
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`SANJAY AGARWAL,
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`Opposer,
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`Applicant.
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`:
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`:
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`Mark: UUNIQUE
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`Serial Number: 79/153,014
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`Opposition No. 91220956
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`Additional Response to Interrogatories, Requests for Admissions and Requests for Documents
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`and Things
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`With regard to letter dated & January 2016, I would like to make the following clarifications and
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`to reconfirm the answers that I provided during the discovery in the opposition proceeding quoted
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`above.
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`Whereas the initial qualifications that I made are concerned, I would like to reassure you that I
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`have made all possible efforts in order to provide full and comprehensive answers to all your
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`interrogatories and requests for admissions and documents. Although the greater part of them
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`have been too burdensome or not related to the facts of the case, I did not object to them in the
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`interest of providing as full and comprehensive information as possible that would lead to prompt
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`and fair decision which we expect at the end of the proceedings. However in the cases where you
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`are requesting me to provide opinion or any other form of interpretation of certain facts, you
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`should be aware that such interpretations do not have binding effect upon me. They are not
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`subject to the Federal Rules of Evidence as they do not represent facts of the case and therefore
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`any other party might provide new ones with which the Board will not be obliged to conform. On
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`the contrary, if any such interpretation is related to the applicable law, he Board is free to take
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`any positions that considers suitable regardless of any party’s opinion. Similar conclusion might
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`be made in relation to other parts of your interrogatories and requests where you are seeking my
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`opinion about future facts. I would like to remind you that the purport of the discovery
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`proceeding is to ascertain and clarify past facts that are relevant to the case and therefore, for
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`similar reasons, I am neither bound with such opinions nor they represent any form of contract
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`between your client and myself and they can be changed at any time.
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`However, with regard to those replies that are related to past facts of the case, I am providing a
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`verification at the end of this document.
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`My respond to interrogatory No 5 should be interpreted with regards to your interrogatory where
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`you are asking us to identify each and other trademarks, in addition to UUNIQUE, where I am
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`planning to use or intend to use in the marketing of the goods or services in the United States
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`which include any form of the word “unique.” Therefore the fact that I am not planning to use the
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`word ‘unique’ in other trademarks does in no way prevent me from registering the mark
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`

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