throbber
Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`ESTTA734083
`03/17/2016
`
`ESTTA Tracking number:
`
`Filing date:
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
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`91223943
`
`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
`
`Signature
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`Date
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`Attachments
`
`Plaintiff
`Genomma Lab Internacional, S.A.B. de C.V.
`
`DANIEL C NEUSTADT
`HOLLAND & KNIGHT LLP
`800 17TH STREET NW, SUITE 1100
`WASHINGTON, DC 20006
`UNITED STATES
`dan.neustadt@hklaw.com
`
`Motion to Compel Discovery
`
`Daniel C. Neustadt
`
`dan.neustadt@hklaw.com, paul.kilmer@hklaw.com, laurie.milton@hklaw.com,
`ptdocketing@hklaw.com
`
`/Daniel C. Neustadt/
`
`03/17/2016
`
`Opposer's Motion to Compel - Opp. No. 91223943.pdf(139982 bytes )
`Exhibits A-G -- Motion to Compel -- Opp. No. 91223943.pdf(4245313 bytes )
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`

`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`____________________________________
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`:
`GENOMMA LAB INTERNACIONAL, :
` S.A.B. DE C.V.,
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`:
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`:
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`Opposer,
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`:
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`:
`v.
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`:
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`ALXIGNA INC.,
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`:
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`:
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`Applicant.
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`:
`____________________________________:
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`Opposition No. 91223943
`
`Application Serial No. 86591564
`
`
`
`OPPOSER’S MOTION TO COMPEL DISCOVERY
`AND
`MOTION TO DETERMINE THE SUFFICIENCY
`OF APPLICANT’S RESPONSES TO REQUESTS FOR ADMISSIONS
`AND
`MOTION TO SUSPEND PROCEEDINGS
`
`Genomma Lab Internacional, S.A.B. de C.V. (“Opposer”) hereby moves the
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`
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`Trademark Trial and Appeal Board to compel Alxigna Inc. (“Applicant”), via its
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`counsel, Matthew Swyers, to respond in full and without objection to Opposer’s
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`discovery requests in accordance with Trademark Rule 2.120(e). Opposer also
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`moves the Board to test the sufficiency of Applicant’s objections to requests for
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`admissions propounded by Opposer, in accordance with Trademark Rule 2.120(h).
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`Finally, Opposer requests that the Board suspend action in this proceeding with
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`respect to all matters not germane to this motion, and thereafter reset the trial
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`dates as appropriate, in accordance with Trademark Rule 2.120(e)(2) and
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`2.120(h)(2).
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`
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`Counsel for Opposer has made a good faith effort, by correspondence that has
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`been sent to and received by Applicant’s counsel, Matthew Swyers, to resolve with
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`Applicant the issues presented in these motions and has been unable to reach
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`agreement with Applicant.
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`

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`The following facts are relevant to these motions:
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`
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`I.
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`On December 15, 2015, Opposer’s counsel served on Applicant “Opposer’s
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`First Set of Interrogatories, Requests for Production of Documents, and Requests
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`for Admission” (the “Discovery Requests”), a copy of which is attached hereto as
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`Exhibit A.
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`
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`II. Applicant’s served its objections and responses to the Discovery Requests on
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`January 19, 2016 (the “Objections and Responses”), promising that it would
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`supplement its responses and produce discovery subject to the stated objections. A
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`copy of the Objections and Responses is attached hereto as Exhibit B.
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`
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`III. On January 20, 2016, Opposer’s counsel informed Matthew Swyers, counsel
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`for Applicant, that Opposer expected Applicant to fully supplement its discovery by
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`February 2, 2016, i.e., two weeks from the date the Objections and Responses had
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`been due. In that same correspondence, Opposer also requested that Applicant’s
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`counsel advise regarding the availability of Carlos Casas – signatory of the
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`Application – to sit for deposition. A copy of the January 20, 2016 correspondence is
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`attached hereto as Exhibit C.
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`
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`IV. Applicant’s counsel failed to respond to the January 20, 2016 correspondence.
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`V.
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`On February 9, 2016, Opposer’s counsel wrote counsel for Applicant, again
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`requesting that Applicant supplement its discovery responses, and asking when
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`Opposer might expect Applicant’s production. Opposer’s counsel also advised
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`counsel for Applicant that if Applicant continued to be unresponsive with respect to
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`its discovery obligations, Opposer would be forced to move the Board to compel
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`production. A copy of the February 9, 2016 correspondence is attached hereto as
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`Exhibit D.
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`VI. Applicant’s counsel failed to respond to the February 9, 2016 correspondence.
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`2
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`VII. On February 18, 2016, Opposer’s counsel wrote counsel for Applicant, again
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`seeking the promised supplemental production and again warning that, in the
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`absence of a response, Opposer would be forced to move the Board to compel
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`production. A copy of the February 18, 2016 correspondence is attached hereto as
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`Exhibit E.
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`
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`VIII. Applicant’s counsel
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`failed
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`to respond
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`to
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`the February 18, 2016
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`correspondence.
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`IX. On February 25, 2016, via email and by first class mail, Opposer’s counsel
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`wrote to Applicant, again requesting that counsel advise when Opposer might
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`expect Applicant’s supplemental responses and production, and again inquiring
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`regarding the availability of Carlos Casas to sit for deposition, and again advising
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`that in the absence of a reply, Opposer would be forced to move the Board to compel
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`production. Opposer’s counsel warned that the correspondence would be his last
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`with respect to this matter. A copy of the February 25, 2016 correspondence is
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`attached hereto as Exhibit F.
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`X.
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`Applicant’s counsel
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`failed
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`to respond
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`to
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`the February 25, 2016
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`correspondence.
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`XI. The discovery period in this proceeding is scheduled to close on May 29, 2016.
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`
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`A. Motion to Compel.
`In this opposition proceeding, the mark at issue is LAKESIA, which both
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`Applicant and Opposer have applied to register. Opposer’s application to register
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`the identical LAKESIA mark in connection with goods identical to those claimed by
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`Applicant was refused registration on the basis of an alleged likelihood of confusion
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`with Applicant’s earlier-filed use-based application. Opposer alleges, on information
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`on belief derived from thorough investigation, that Applicant had not made use of
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`the mark in U.S. commerce at the time of its Application. Opposer has formally
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`opposed registration on the following grounds: (1) the incorrect party is identified as
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`the Applicant; (2) lack of commercially bona fide use by the Applicant; (3) Applicant
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`does not offer the claimed goods; (4) the specimen relied upon the Applicant is not in
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`use; and (5) fraud on the USPTO in connection with each of the foregoing.
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`Under Rule 26(b)(1) of the Federal Rules of Civil Procedure, Opposer is
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`entitled to obtain discovery “regarding any nonprivileged matter that is relevant to
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`any party’s claim or defense and proportional to the needs of the case.” Applicant
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`has a duty to cooperate with Opposer and “to make a good faith effort to satisfy the
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`discovery needs of its adversary.” TBMP Section 408.01. Moreover, the Board
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`“looks with extreme disfavor on those who do not [cooperate in the discovery
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`process].” Id. Under Trademark Rule 2.120(e), “If a party… fails to answer… any
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`interrogatory, or fails to produce and permit the inspection and copying of any
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`document or thing, the party entitled to disclosure or seeking discovery may file a
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`motion to compel disclosure, … or an answer, or production and an opportunity to
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`inspect and copy.” 37 C.F.R. Section 2.120(e).
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`Opposer respectfully submits that its discovery requests are warranted and
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`appropriate under the Federal Rules and the rules of the Board, and thus, it is
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`entitled to the supplemental responses herein requested.
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`1. Interrogatories
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`Opposer served less than 20 interrogatories upon Applicant. Applicant
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`refused to provide a substantive response to a single one.
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`Counsel for Opposer has made a good faith effort, by correspondence that has
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`been sent to and received by Applicant’s counsel, Matthew Swyers, to resolve with
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`Applicant the issues presented with regard to Applicant’s responses to the
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`interrogatories and has been unable to reach agreement with Applicant.
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`
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`Applicant objected to two-thirds of the interrogatories as “overly broad and
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`burdensome.” (Applicant also objected to some on the additional grounds that they
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`were “compound.”) On these grounds, Opposer refused to provide, for example, the
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`mere date upon which Applicant first used Applicant’s Mark in the U.S.
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`(Interrogatory No. 2), the identity of a single product with which Applicant’s Mark
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`has been used (Interrogatory No. 3), the identity of a single officer or director of
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`Applicant (Interrogatory No. 17) – although Applicant insists they exist (Responses
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`to Requests for Admission Nos. 39-40, 44-45) – or even the individual or individuals
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`who answered the interrogatories (Interrogatory No. 18).
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`Applicant did not lodge any objections to the remaining six interrogatories;
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`nonetheless, Applicant still refused to provide any answers. By way of example,
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`without any grounds for objection, Applicant refused to identify “Carlos Casas,” the
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`signatory of the Application (on which he identifies himself as “Secretary of Board”)
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`(Interrogatory No. 12), even though, in response to Opposer’s Requests for
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`Admission, Applicant insists that Mr. Casas exists, holds the title Secretary of
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`Board, and was authorized to sign the Application on behalf of Applicant
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`(Responses to Requests for Admission Nos. 37-43).
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`
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`To each interrogatory, Applicant responded that it would supplement its
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`response “at a reasonable time prior to trial.” Applicant’s abject refusal to even
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`communicate with Opposer strongly suggests that it will not voluntarily do so.
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`Opposer therefore respectfully requests that the Board compel immediate and full
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`responses to its reasonable and proportionally drawn interrogatories.
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`2. Production of Documents
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`More than three months have passed since Opposer served its requests for
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`production of documents upon Applicant, of which there were less than 30. To date,
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`Applicant has not produced a single document.
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`Counsel for Opposer has made a good faith effort, by correspondence that has
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`been sent to and received by Applicant’s counsel, Matthew Swyers, to resolve with
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`Applicant the issues presented with regard to Applicant’s responses to Opposer’s
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`requests for production of documents and has been unable to reach agreement with
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`Applicant.
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`Applicant objected to every single request, except for the very first, on the
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`grounds that it was “overly broad and burdensome.” Applicant often justified such
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`responses on the thin basis that the relevant request contained the word “all,” even
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`where the request did not actually contain the word “all”. See Request No. 27 and
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`response thereto. For example, Applicant deemed Request No. 27 – which sought
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`documents identifying price information for products sold and intended to be sold
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`under Applicant’s Mark – to be overly broad and burdensome, even though,
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`according to Applicant, use of the Mark commenced less than a year ago.
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`Applicant’s baseless objections to Opposer’s reasonable and proportionally
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`drawn requests and its absolute unwillingness to so much as communicate with
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`Opposer regarding production reflects a complete abdication of its duty to cooperate
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`in the discovery process. Opposer therefore respectfully requests that the Board
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`compel immediate and full responses to its requests for production of documents.
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`B. Motion To Determine the Sufficiency of Applicant’s Responses to
`Opposer’s Requests For Admission.
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`Opposer served 48 requests for admission on Applicant. Save for an
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`admission that Applicant had submitted a specimen in support of its use-based
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`application, Applicant issued one-word denials to every request.
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`
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`Counsel for Opposer has made a good faith effort, by correspondence that has
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`been sent to and received by Applicant’s counsel, Matthew Swyers, to resolve with
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`Applicant the issues presented with regard to Applicant’s responses to Opposer’s
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`requests for admission and has been unable to reach agreement with Applicant.
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`Opposer’s notice of opposition in this proceeding contains four counts of
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`fraud. Allegations of misrepresentation are at the core of this action.
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`Applicant’s cursory responses to Opposer’s requests for admission strongly
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`suggest that neither Applicant nor its counsel, Matthew Swyers, have fulfilled its
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`obligation to conduct a thorough and thoughtful investigation of the facts at issue.
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`For example, Opposer requested that Applicant admit that, at the time Applicant
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`filed its Application, Applicant did not have production facilities located at 249 W.
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`Jackson Suite, Suite 314, Hayward, California, i.e., the address provided for
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`Applicant on the Application. (Request for Admission No. 32.) Opposer’s
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`investigation revealed the address to be that of a PostalAnnex. (Printouts of the
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`PostalAnnex website and the Google Maps Street View of the address at issue are
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`attached hereto as Exhibit G.) Nonetheless, Applicant, in its responses, maintained
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`that it has production facilities there.
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`
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`With respect to responses to requests for admission, the Federal Rules
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`require as follows:
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`If a matter is not admitted, the answer must specifically deny it or
`state in detail why the answering party cannot truthfully admit or
`deny it. A denial must fairly respond to the substance of the matter;
`and when good faith requires that a party qualify an answer or deny
`only a part of a matter, the answer must specify the part admitted and
`qualify or deny the rest.
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`Fed. R. Civ. P. 36(a)(4).
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`Applicant’s responses to Opposer’s requests for admission do not comply with
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`the requirements of Rule 36(a)(4). They do not specifically deny the requests and
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`they do not fairly respond to the substance of the matter.
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`
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`In response to this motion, the Federal Rules permit the Board to order that
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`the matters set forth in the requests be deemed admitted. Fed. R. Civ. P. 36(a)(6).
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`Alternatively, the Board may order that Applicant serve responses to the requests.
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`Accordingly, Opposer requests that the Board order that the matters set forth in
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`Opposer’s requests for admission be deemed admitted. In the alternative, Opposer
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`requests that the Board order Applicant to fulfill its duty to investigate the factual
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`matters at issue in this proceeding and respond in full to the requests for admission,
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`without objection.
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`7
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`C. Suspension of Proceeding.
`Trademark Rules require that proceedings herein should be suspended
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`pending the disposition of Opposer’s motion to compel:
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`When a party files a motion for an order to compel discovery, the case
`will be suspended by the Trademark Trial and Appeal Board with
`respect to all matters not germane to the motion, and no party should
`file any paper which is not germane to the motion….
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`Trademark Rule 2.120(e)(2), 37 C.F.R. Section 2.120(e)(2). A similar mandatory
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`suspension applies to a motion to test the sufficiency of objections to a request for
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`admission. Trademark Rule 2.120(h)(2), 37 C.F.R. Section 2.120(h)(2).
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`Upon resumption of proceedings, Opposer requests that the Board grant a
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`reasonable period of time for the parties to review materials to be produced in
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`response to the Board’s order, and reset the close of discovery date as well as all
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`subsequent dates accordingly.
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`D. Conclusion.
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`Opposer respectfully requests that the Board grant these motions and take
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`the following actions:
`a. order Applicant to provide complete written responses, without objection,
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`to Opposer’s Interrogatories within 30 days;
`b. order Applicant to produce the materials responsive to Opposer’s Requests
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`for Production of Documents, within 30 days, at the offices of Opposer’s
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`counsel, Holland & Knight LLP, 800 17th St., N.W., Suite 1100,
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`Washington, DC 20006;
`c. order that the matters set forth in Opposer’s Requests for Admission be
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`deemed admitted, or alternatively order Applicant to provide responses to
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`such requests for admission that fully respond to the substance of the
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`matters, without objection;
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`8
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`d. suspend action in this proceeding pending the disposition of the present
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`motions; and reset the trial dates in this proceeding, as appropriate.
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`Respectfully submitted,
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`GENOMMA LAB INTERNACIONAL,
`S.A.B. DE C.V.
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`
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`By: /Daniel C. Neustadt/
`Paul F. Kilmer
`Daniel C. Neustadt
`HOLLAND & KNIGHT LLP
`800 17th Street, N.W., Suite 1100
`Washington, D.C. 20006
`202.469.5163
`dan.neustadt@hklaw.com
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`Attorneys for Opposer
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`Date: March 17, 2016
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`9
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`CERTIFICATE OF SERVICE
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`The undersigned certifies that a true copy of the foregoing OPPOSER’S
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`
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`MOTION TO COMPEL DISCOVERY AND MOTION TO DETERMINE THE
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`SUFFICIENCY OF APPLICANT’S OBJECTIONS TO REQUESTS FOR
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`ADMISSIONS AND MOTION TO SUSPEND PROCEEDINGS was sent by UPS
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`to counsel for Applicant, Matthew H. Swyers, The Trademark Company PLLC, 344
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`Maple Avenue West, Suite 151, Vienna, VA 22180, on this 17th day of March, 2016.
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` /Daniel C. Neustadt/
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`Daniel C. Neustadt
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`10
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`EXHIBIT A
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`EXHIBIT A
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`GENOMMA LAB INTERNACIONAL,
`S.A.B. DE C.V.,
`
`Opposer,
`
`V.
`
`ALXIGNA INC.
`
`Applicant
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`Opposition No. 91223943
`
`Application Serial No. 86591564
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`:
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`‘
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`OPPOSER’S FIRST SET OF INTERROGATORIES,
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`REQUESTS FOR ADMISSION AND
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`REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS
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`Pursuant to Rules 33 and 34 of the Federal Rules of Civil Procedure and Rule
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`2.10 of the Trademark Rules of Practice, Genomma Lab lnternacional, S.A.B. de
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`C.V. (“Opposer”) through undersigned counsel, hereby propounds upon Alxigna Inc.
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`(“Applicant”) the following interrogatories, requests for production of documents
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`and things and requests for admission. Applicant shall provide its written reply to
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`these discovery requests within 35 days of the date of service hereof, and produce
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`the documents requested at 10:00 a.m. on January 21, 2016 Where the documents
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`are normally kept or at the offices of counsel for Applicant, Holland & Knight LLP,
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`Suite 1100, 800 17th St. N.W., Washington, D.C. 20006.
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`1.
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`INSTRUCTIONS AND DEFINITIONS
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`A.
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`These discovery requests require responses which are complete and
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`accurate as of the date when such responses are made.
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`B.
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`These discovery requests are continuing in character so as to require
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`Applicant to supplement its responses as to:
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`1.
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`2.
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`the identity of persons having knowledge of discoverable matters;
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`the identity of each person expected to be called as an expert witness
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`at trial, the subject matter on which the expert is expected to testify, and the
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`substance of the expert’s testimony. Fed.R.Civ.P. 26(e)(1).
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`C.
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`Applicant has a duty to amend a response if Applicant obtains
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`information indicating that the response was incorrect when made, or that the
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`response, though correct when made,
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`is in some material respect incomplete or
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`incorrect. Fed.R.CiV.P. 26(e)(2).
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`D.
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`As used herein, the following definitions apply:
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`1.
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`“Communication”.
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`The
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`term “communication(s)” means
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`the
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`information that has been transmitted (in the form of facts,
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`ideas, inquiries, or
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`otherwise), regardless of means utilized.
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`2.
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`“Document”. The term “document(s)” has the meaning ascribed to it in
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`Fed.R.CiV.P. 34(a), and includes, but is not limited to, every writing or record of
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`every type and description that is or has been in the possession, control, or custody
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`of Applicant or which Applicant has knowledge,
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`including without
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`limitation:
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`originals, masters and every copy of writings, including handwritings, and printed,
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`typed or other graphic or photographic matter including film or microfilm, video
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`tape, recordings (tape, disc or other), correspondence, communications, contracts,
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`2
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`agreements,
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`assignments,
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`licenses,
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`purchase
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`orders,
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`invoices,
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`statements,
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`memoranda, notes (in pencil,
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`ink, or
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`typewritten),
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`letters, notebooks,
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`reports,
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`photographs,
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`drawings,
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`tracings,
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`sketches,
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`charts,
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`catalogs,
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`brochures,
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`advertisements,
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`records of communications oral and otherwise,
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`instructions,
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`telegrams,
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`studies,
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`surveys, minutes,
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`reports
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`calendars,
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`inter-office
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`communications, price lists, bulletins, circulars, statements, manuals, summaries,
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`maps, charts, graphs,
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`invoices, canceled or voided checks, bills or statistical
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`material. A document bearing any notation not a part of the original text is to be
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`considered a separate document. A draft or non-identical copy is a separate
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`document within the meaning of this term.
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`3.
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`“Data”.
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`The term “data” shall mean any facts, documents or
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`communications, oral or otherwise, of which Applicant has knowledge, information
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`or belief.
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`4.
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`“ dentify” or “Specifig”.
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`As used herein, “identify” or “specify” when
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`used in reference to:
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`(a)
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`a person who is an individual shall mean to state his or her full
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`name, present or last known residence address (designating which), and present or
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`last known position or business
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`affiliation (designating which),
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`job title,
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`employment address, and business and residence telephone numbers;
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`(b)
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`a person who is a firm, partnership, corporation, proprietorship,
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`association, or other organization or entity shall mean to state its full name, present
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`or last known (designating which) address, telephone number, legal form of such
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`entity or organization, (including state and country of incorporation or organization)
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`and the identity of
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`its present and former officers, directors, controlling
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`shareholder(s)
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`and all
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`employees,
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`agents,
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`and staff members who have
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`responsibilities relating to use of trademarks;
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`(c)
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`data, shall mean to state:
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`in the case of a document, the title (if
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`any), the date, author(s), sender(s), recipient(s), the identity of the persons signing
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`it, type of document (i.e., a letter, memorandum, book, telegram, chart, etc.) or some
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`other means of identifying it,
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`its present
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`location or custodian and whether
`
`Applicant is in the possession of the original, master, or a copy of the document, and
`
`if not in possession of the original, master or copy to furnish the name and last
`
`known address of the custodian of the original, master or copy; in the case of an oral
`
`communication,
`
`the date, subject matter, communicator,
`
`the recipient of the
`
`communication, nature of communication, whether it was recorded, and the identity
`
`of any Witness thereto; and in the case of a fact, the source thereof.
`
`5.
`
`The words/phrases “identity”, “circumstances”, “detail(s)”, and “all
`
`information”, whether used alone or in connection with any other words, shall
`
`include, but are not limited to, identifying all facts, persons, places, dates, events,
`
`documents, physical items of any kind, time periods, geographical locations, data,
`
`communications of any kind, or any other information in any way related to,
`
`pertaining to, connected with or otherwise responsive to the interrogatory or
`
`document request such that all information shall be brought within the scope of the
`
`interrogatory or document request which may otherwise be deemed not
`
`to be
`
`covered by the interrogatory or document request.
`
`6.
`
`The words/phrases
`
`“respecting”,
`
`“relating”,
`
`“referring
`
`to”,
`
`or
`
`“regarding”, whether used alone or in connection with any other words, shall mean
`
`making a statement about,
`
`referring to, mentioning, discussing, describing,
`
`reflecting, dealing with, consisting of, comprising, recording or in any other way
`
`pertaining to the subject either in whole or in part directly or indirectly.
`4
`
`

`
`7.
`
`“Applicant”. The term “Applicant” shall mean Alxigna, Inc. and its
`
`employees, agents, representatives and all others acting with it or for it.
`
`8.
`
`“Opposer”.
`
`The
`
`term “Opposer”
`
`shall mean Genomma Lab
`
`Internacional, S.A.B. de C.V.
`
`and, where applicable,
`
`its officers, directors,
`
`employees, agents and representatives.
`
`9.
`
`“Person”. The term “person” shall include without limitation, any
`
`natural person or any business, business association, business entity, partnership,
`
`corporation,
`
`legal, or governmental entity. Whenever an interrogatory requests
`
`identification of persons, as to those individuals named in response to the
`
`interrogatory now in the employ of or associated with Applicant, state the title or
`
`position, duties and present
`
`residence and business addresses of each such
`
`individual. As to those “persons” who have previously been but are not now in the
`
`employ of or associated with Applicant, state the periods of employment or
`
`association with Applicant, the person’s title or positions during that period, and
`
`the last known residences and business address of such persons. As to all “persons”
`
`state their residence and business addresses.
`
`10.
`
`“And” and “Or”. The connectives “and” and “or” shall be construed
`
`broadly, both conjunctively and disjunctively,
`
`to bring within the scope of the
`
`discovery request all responses that might otherwise be construed to be outside of
`
`its scope.
`
`11.
`
`“Date”. The term “date” shall mean the exact day, month and year, if
`
`ascertainable, or if not, the best approximation, including the temporal relationship
`
`to other events.
`
`

`
`12.
`
`“Number”. The use of the singular form of any word includes the
`
`plural and vice Versa.
`
`13.
`
`“ pplicant’s Mark”.
`
`Unless
`
`otherwise
`
`specified,
`
`the phrase
`
`“Applicant’s Mark” refers to the trademark LAKESIA which is the subject of
`
`Applicant’s federal trademark application, Serial No. 86591564.
`
`14.
`
`“ pplicant’s Goods”.
`
`Unless otherwise
`
`specified,
`
`the phrase
`
`“Applicant’s Goods” refers to any and all products claimed in Applicant’s federal
`
`trademark application Serial No. 86591564 for the mark LAKESIA.
`
`15.
`
`“ pposer’s Marks”. Unless otherwise specified, the phrase “Opposer’s
`
`Mark” refers to the trademark LAKESIA as claimed by Opposer
`
`in federal
`
`trademark application Serial No. 86692758.
`
`16.
`
`“ pplication”. Unless otherwise specified, the term “Application” shall
`
`mean the U.S. Patent and Trademark Office trademark application for LAKESIA
`
`which is the subject of Applicant’s federal
`
`trademark application, Serial No.
`
`86591564, here opposed.
`
`

`
`II.
`
`INTERROGATORIES
`
`INTERROGATORY NO. 1
`
`Describe in detail App1icant’s selection of Applicant’s Mark,
`
`including,
`
`without limitation, the date of selection, the reasons for selecting App1icant’s Mark,
`
`and the meaning or impression intended to be conveyed by App1icant’s Mark.
`
`INTERROGATORY NO. 2
`
`State the date upon which Applicant first used Applicant’s Mark in the
`
`United States, and describe the circumstances of such first use.
`
`INTERROGATORY NO. 3
`
`Identify each product which Applicant has marketed or intends to market
`
`under or by reference to App1icant’s Mark and, where applicable, provide the dates
`
`indicating the periods of time during which such products have been offered under
`
`or by reference to App1icant’s Mark.
`
`INTERROGATORY NO. 4
`
`For each product in relation to which Applicant intends to use Applicant’s
`
`Mark in the future, describe in detail the status of Applicant’s plans to commence
`
`production and distribution of each such product.
`
`

`
`INTERROGATORY NO. 5
`
`Identify the channels of trade through which Applicant has marketed or
`
`intends to market each of the products identified in Applicant’s responses to
`
`Interrogatory Nos. 3 and 4, above, under or by reference to Applicant’s Mark.
`
`INTERROGATORY NO. 6
`
`Describe in detail the classes or types of purchasers to whom Applicant has
`
`marketed or intends to market each of the products identified in Applicant’s
`
`responses to Interrogatory Nos. 3 and 4, above, under or by reference to Applicant’s
`
`Mark.
`
`INTERROGATORY NO. 7
`
`Identify all types of media through which Applicant has advertised or intends
`
`to advertise each of the products identified in Applicant’s responses to Interrogatory
`
`Nos. 3 and 4, above, under or by reference to Applicant’s Mark.
`
`INTERROGATORY NO. 8
`
`For each of the products that Applicant has identified in Applicant’s
`
`responses to Interrogatory Nos. 3 and 4, above, and which Applicant has offered or
`
`intends to offer under or by reference to Applicant’s Mark:
`
`(a)
`
`State the price at which the product is offered;
`
`(b)
`
`Identify the states and territories Where such products have been sold.
`8
`
`

`
`INTERROGATORY NO. 9
`
`To the extent of Applicant’s knowledge, describe in detail each event in which
`
`a person was confused, mistaken or deceived as to the source of any products offered
`
`or to be offered under or by reference to Applicant’s Mark or Opposer’s Marks.
`
`INTERROGATORY NO. 10
`
`Identify the person or persons most knowledgeable about:
`
`(a) App1icant’s
`
`selection of Applicant’s Mark; (b) the marketing and advertising of goods offered or
`
`to be offered in the future under or by reference to Applicant’s Mark, and (c) the sale
`
`or intended future sale of products under or by reference to Applicant’s Mark.
`
`INTERROGATORY NO. 11
`
`Identify each person Whom Applicant has consulted, retained or intends to
`
`call as an expert Witness in the captioned proceeding, and describe the nature of
`
`each such person’s opinions and expected testimony, including the identification of
`
`all documents about which each such expert was consulted or is expected to testify.
`
`INTERROGATORY NO. 12
`
`Identify Carlos Casas,
`
`the signatory of the Application, and describe the
`
`nature of his relationship with Applicant and his role with respect
`
`to the
`
`Application and Applicant’s Mark and Applicant’s Goods.
`
`

`
`INTERROGATORY NO. 13
`
`Identify each person associated with the email address tint lexinteror , the
`
`
`email address submitted by Applicant
`
`for correspondence with respect
`
`to the
`
`Application, and describe the nature of their relationship with Applicant and their
`
`role with respect to the Application and the Applicant’s Mark and Applicant’s
`
`Goods.
`
`INTERROGATORY NO. 14
`
`Identify Ricardo Garces, the attorney whose biography was formerly posted
`
`on the LeXinter.org Website, and describe the nature of his relationship with
`
`Applicant and his role with respect to the Application and Applicant’s Mark and
`
`Applicant’s Goods.
`
`INTERROGATORY NO. 15
`
`Identify Ricardo Garces’s brother(s) and describe the nature of his/their
`
`relationship with Applicant and his/their role with respect to the Application and
`
`App1icant’s Mark and Applicant’s Goods.
`
`INTERROGATORY NO. 16
`
`Identify Ricardo Garces’s father and describe the nature of his relationship
`
`with Applicant and his role with respect to the Application and Applicant’s Mark
`
`and Applicant’s Goods.
`
`10
`
`

`
`INTERROGATORY NO. 17
`
`Identify each officer and director associated with Applicant and/or Applicant’s
`
`Mark and describe the nature of their relationship with Applicant and their role
`
`with respect to the Application and Applicant’s Mark and App1icant’s Goods.
`
`INTERROGATORY NO. 18
`
`For each and every Interrogatory above, identify the individual or individuals
`
`answering the Interrogatory, and each person who provided any information,
`
`including opinions, advice, reports, studies, or facts, on which your answer to any of
`
`the foregoing Interrogatories was based, specifying each Interrogatory to which he
`
`or she contributed information.
`
`11
`
`

`
`III. REQUESTS FOR ADMISSION
`
`Opposer hereby requests that Applicant admit the truth of the matters set
`
`forth below.
`
`In accordance with Fed. R. Civ. P. 36(a), each answer must admit the
`
`matter, or specifically deny the matter, or set forth in detail the reasons why
`
`Applicant cannot truthfully admit or deny the matter. Applicant may not give lack
`
`of information or knowledge as a reason for failure to admit or deny unless
`
`Applicant states that it has made reasonable inquiry and that the information
`
`known or readily obtainable by Applicant is insufficient to enable it to admit or
`
`deny.
`
`1.
`
`On and prior to March 27, 2015, Applicant had not made trademark
`
`use of Applicant’s Mark in commerce in or with the United States in the sale of
`
`Applicant’s Goods.
`
`2.
`
`On and prior to March 27, 2015, Applicant had not made trademark
`
`use of Applicant’s Mark in commerce in or with the United States in the offering for
`
`sale of Applicant’s Goods.
`
`3.
`
`On and prior to March 27, 2015, Applicant had not made trademark
`
`use of Applicant’s Mark in commerce in or with the United States in the
`
`distribution of Applicant’s Goods.
`
`4.
`
`On and prior to March 27, 2015, Applicant had not made

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