Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov
`
`ESTTA Tracking number:
`
`ESTTA999901
`
`Filing date:
`
`09/05/2019
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91242256
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Defendant
`I Love Sugar, Inc.
`
`PHILIP Y BRAGINSKY
`TARTER KRINSKY & DROGIN LLP
`1350 BROADWAY
`NEW YORK, NY 10018
`UNITED STATES
`tmdocket@tarterkrinsky.com, pbraginsky@tarterkrinsky.com
`212-216-8000
`
`Motion to Compel Discovery or Disclosure
`
`Philip Braginsky
`
`tmdocket@tarterkrinsky.com, pbraginsky@tarterkrinsky.com
`
`/Philip Braginsky/
`
`09/05/2019
`
`Attachments
`
`01906309.PDF(59268 bytes )
`
`
`
`ESTTA Tracking number:
`
`ESTTA999901
`
`Filing date:
`
`09/05/2019
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding
`
`91242256
`
`Party
`
`Correspondence
`Address
`
`Submission
`
`Filer's Name
`
`Filer's email
`
`Signature
`
`Date
`
`Defendant
`I Love Sugar, Inc.
`
`PHILIP Y BRAGINSKY
`TARTER KRINSKY & DROGIN LLP
`1350 BROADWAY
`NEW YORK, NY 10018
`UNITED STATES
`tmdocket@tarterkrinsky.com, pbraginsky@tarterkrinsky.com
`212-216-8000
`
`Motion to Compel Discovery or Disclosure
`
`Philip Braginsky
`
`tmdocket@tarterkrinsky.com, pbraginsky@tarterkrinsky.com
`
`/Philip Braginsky/
`
`09/05/2019
`
`Attachments
`
`01906309.PDF(59268 bytes )
`
`
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the Matter of Application Serial No. 87/704,766
`For the Mark: LICORICE MONSTER
`Filed:
`December 1, 2017
`Published: May 8, 2018
`
`
`-------------------------------------------------------X
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`
`
`MONSTER ENERGY COMPANY
`
`
`
`
`
`
`
`
`
`Opposer,
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`
`
`
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`Opposition No. 91242256
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`
`
`
`vs.
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` LOVE SUGAR, INC.
`
` I
`
`
`Applicant.
`
`
`
`-------------------------------------------------------X
`
`I LOVE SUGAR’S FIRST SET OF REQUESTS FOR THE
`PRODUCTION OF DOCUMENTS, ESI AND THINGS
`
`Pursuant to Rule 2.120(d) of the U.S. Patent and Trademark Office’s Trademark Rules of
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`Practice, 37 C.F.R. § 2.120(d), and Rule 34 of the Federal Rules of Civil Procedure (“FRCP”),
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`Applicant I LOVE SUGAR, INC. (“Applicant”), hereby requests that Opposer Monster Energy
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`Company (“Opposer”) respond to each request set forth below and produce all documents, ESI
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`and things at the offices of Tarter, Krinsky & Drogin LLP, 1350 Broadway, New York, N.Y.
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`10018, within 30 days of service hereof in accordance with FRCP 34 and Rule 2.120(a) of the
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`PTO’s Trademark Rules of Practice.
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`DEFINITIONS
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`Notwithstanding any definition set forth below, each word, term, or phrase used in these
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`Requests is intended to have the broadest meaning permitted under the Federal Rules of Civil
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`Procedure and the PTO’s Trademark Rules of Practice. As used in these Requests, the following
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`terms are to be interpreted in accordance with these definitions:
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`
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`1.
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`The term “document” or “documents” is used in its customary broad sense to
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`mean all non-identical copies of all documents within the scope of Rule 34, Federal Rules of
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`Civil Procedure, including, without limitation, reports and/or summaries of interviews; reports
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`and/or summaries of investigations; opinions or reports of consultants; opinions of counsel;
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`communications of any nature including internal company communications; memoranda;
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`notes; letters; e-mail; agreements; reports or summaries of negotiations; brochures;
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`pamphlets; advertisements; circulars; trade letters; press releases; drafts of documents and
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`revisions of drafts of documents and any written, printed, typed or other graphic matter of
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`any kind of nature; drawings; photographs; charts; electronically stored data; and all
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`mechanical and electronic sound recordings or transcripts thereof, in the possession and/or
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`control of Defendant or its employees or agents, or known to Defendant to exist, and shall
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`include all non-identical copies of documents by whatever means made and whether or not
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`claimed to be privileged or otherwise excludable from discovery. By way of illustration only
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`and not by way of limitation, any documents bearing on any sheet or side thereof any marks,
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`including, but not limited to, initials, stamped indicia, comment or notation of any character
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`and not a part of the original text or any reproduction thereof, is to be considered a separate
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`document.
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`2.
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`The term “relating to” is understood to have its broadest possible meaning, and
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`includes, but is not limited to, concerning, associated with, addressing, referring to, bearing upon,
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`supporting, contradicting, applicable to, pertaining to, involving, reflecting, undermining,
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`regarding, respecting, touching upon, describing, embodying, evidencing, stating, dealing with,
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`constituting, implying, implicating, refuting, or in any way logically or factually connected with
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`the matter discussed or identified.
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`
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`2
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`
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`3.
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`The term “Applicant” shall refer to I LOVE SUGAR, INC. and any present or
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`former owner, officer, director, employee, servant, agent, attorney or other representative
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`acting on behalf of it, and shall include any related entity, parent corporation, or wholly
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`owned or partially-owned subsidiary, predecessor, successor, or affiliate.
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`4.
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`The term “Opposer” shall refer to Monster Energy Company, and any present
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`or former owner, officer, director, employee, servant, agent, attorney or other representative
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`acting on its behalf, and shall include any related entity, parent corporation, or wholly owned
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`or partially-owned subsidiary, predecessor, successor, or affiliate.
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`5.
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`The terms “You” or “Your” shall mean Opposer.
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`6.
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`7.
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`The terms “all” and “each” shall be construed to include all and each.
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`The term “thing” shall mean all tangible objects of any type, composition,
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`construction, or nature.
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`8.
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`A document or thing “relating” or which “relates” to any given subject means
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`any document or thing that comprises, constitutes, contains, embodies, reflects, identifies,
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`states, refers to, deals with, or is in any way pertinent to that subject, including, without
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`limitation, documents concerning the preparation of other documents.
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`9.
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`The term “concerning” means relating to, referring to, describing, evidencing
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`or constituting.
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`10.
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`The term “and” shall be construed to include “or” and vice versa, and shall be
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`the logical equivalent of “and/or,” as necessary in order to bring within the scope of the
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`Document Requests all responses which might otherwise be construed as outside its scope.
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`
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`3
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`
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`11.
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`The use of the singular form of any word also includes the plural and vice
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`versa.
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`12.
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`The phrases “use in commerce,” “use in United States commerce,” “used in
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`commerce” and “used in United States commerce,” and similar phrases, shall mean and refer
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`to the definition provided under 15 U.S.C. § 1127.
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`13.
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`The term “person” shall include both natural persons and corporate or other
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`business entities, whether or not in the employ of Applicant, and the acts and knowledge of a
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`person are defined to include the acts and knowledge of that person’s directors, officers,
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`members, employees, representatives, agents and attorneys.
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`14.
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`The terms “trademark” or “mark” shall include trademarks, service marks,
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`collective marks, certification marks and trade names as defined in 15 U.S.C. § 1127.
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`15.
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`The term “date” means the exact day, month, and year, if ascertainable and, if
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`not, the best approximation thereof.
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`16.
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`The term “Applicant’s Mark” shall mean mark LICORICE MONSTER as
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`shown in U.S. Trademark Application Serial Number 87/704766.
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`17.
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`The term “Applicant’s Application” shall mean U.S. Trademark Application
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`Serial Number 87/704766.
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`18.
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`The term “Notice of Opposition” shall refer to the Notice of Opposition filed in
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`connection with Opposition No. 91242256.
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`
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`4
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`
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`19.
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`The term “Applicant’s Goods and Services” shall mean and refer to the goods
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`and services Applicant offers or sells, has offered or sold, or intends to offer or sell identified
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`in connection with Applicant’s Mark, including but not limited to Applicant’s goods in
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`International Class 25, namely, “[c]lothing, namely, t-shirts, tank tops, sweat shirts,
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`sweatpants, jackets, hats, caps being headwear, swimwear apparel, active wear apparel in the
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`nature of shirts, pants, jackets, and swimwear apparel” and in International Class 28, namely,
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`“[c]andies; confectionery made of sugar and sugar substitutes,” and Applicant’s services in
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`International Class 35, namely, “[r]etail store services featuring candy, bulk candy, novelty
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`candy, confectionery-based goods, chocolate, clothing, accessories and gift items,” as
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`identified in Applicant’s Application for Applicant’s Mark.
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`20.
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`The term “Opposer’s Marks” shall collectively refer to all of Opposer’s
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`trademarks alleged in Opposer’s Notice of Opposition.
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`21.
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`The term “Opposer’s Goods and Services” shall mean and refer to all of the
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`goods and services covered under Opposer’s Marks or as alleged in Opposer’s Notice of
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`Opposition.
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`22.
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`“Communications” means any verbal, written, electronic or other transmittal of
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`words, thoughts, ideas or images between or among persons or groups of persons, whether in
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`person, by letter, by telephone, by e-mail, by facsimile, or by any other means.
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`23.
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`The present tense includes the past and future tenses. The singular includes the
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`plural, and the plural includes the singular. “All” means “any and all,” “any” means “any and
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`all.” “Including” means “including but not limited to”. Words in the masculine, feminine or
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`neutral form shall include each of the other genders.
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`
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`5
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`
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`INSTRUCTIONS
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`1.
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`Produce all documents and things in Opposer’s possession, custody or control,
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`regardless of their location, including those documents and things that you have the effective
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`power to obtain. All documents should be produced in the manner in which they are presently
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`maintained, preserving document breaks and file structures, and including but not limited to draft
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`language, editorial comments and other embedded data or edits, as in the original, and with all
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`accompanying file labels from the files in which the business records were maintained.
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`2.
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`Each request calls for and requires production of the complete document, ESI,
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`or tangible thing in its entirety, including attachments, without abbreviation, redaction or
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`expurgation.
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`3.
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`If Opposer withholds any document, or any part of a document, under a claim
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`of attorney-client privilege, work product or other ground of non-production, provide a list
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`of such documents that provides the following information in sufficient detail to enable
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`Plaintiff to assess the applicability of such privilege or protection: (1) the nature of the
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`privilege being asserted with respect to each document; (2) the type or form of each
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`document (e.g., letter, memorandum, etc.); (3) the general subject matter of each document;
`
`(4) the date of each document; and (5) the author(s), addressee(s) and all recipients of each
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`document. For documents containing both privileged and non-privileged material, the non-
`
`privileged material must be disclosed to the fullest extent possible without thereby
`
`disclosing the privileged material. If a document is produced in redacted form, state with
`
`particularity the reason(s) it was not produced in full, and describe generally those portions
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`that are not being produced in sufficient detail to allow Plaintiff to assess the applicability
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`of any privilege or protection. The log containing the above information shall be produced
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`contemporaneously with the response to these requests.
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`
`
`6
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`
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`4.
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`In the event any document called for by these requests has been destroyed, lost,
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`discarded or otherwise disposed of, provide a written statement identifying in detail: (1) the
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`nature and content of each such document; (2) all author(s), recipient(s) and sender(s) of each
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`such document; (3) the date each such document was prepared or transmitted; and (4) the date
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`on which each such document was lost or disposed of and, if disposed of, the conditions of
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`and reason for such disposal, the person(s) authorizing such disposal, the person disposing of
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`the document and any person(s) currently in possession of copies of the document.
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`5.
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`If production of any requested document is objected to on the ground that it is
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`burdensome or oppressive, identify: (1) the reason why production poses a special burden; (2) the
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`approximate number of documents/pages that have been called for; and (3) the location(s) of the
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`document(s) that have been requested.
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`6.
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`These requests are submitted for the purpose of discovery and are not to be taken as
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`waiving any objections which may be made at trial to the introduction of evidence on subjects
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`covered by these requests or as an admission of the relevance or materiality at trial of any of the
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`matters responsive hereto.
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`8.
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`If, in responding to these requests, Opposer encounters any ambiguity in
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`construing the requests or any definition or instruction, set forth the matter deemed ambiguous
`
`and the construction chosen or used in responding to such request.
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`9.
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`Where an objection is made to a request, state all grounds upon which Opposer’s
`
`objection is based. If Opposer objects to any request in part, respond to the extent that Opposer
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`does not claim the request to be objectionable.
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`10.
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`These requests shall be deemed continuing so as to require further and
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`supplemental production in accordance with Rule 26(e) of the Federal Rules of Civil Procedure
`
`if Opposer obtains or discovers additional information or responsive documents prior to the
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`
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`7
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`
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`time of trial.
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`REQUESTS FOR PRODUCTION OF DOCUMENTS AND THINGS
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`1.
`
`2.
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`All documents relating to Opposer’s selection and adoption of Opposer’s Marks.
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`All documents relating to trademark searches, investigations or analysis conducted
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`by or on behalf of Opposer in connection with the selection or adoption of Opposer’s Marks.
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`3.
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`All documents referring or relating to Applicant’s Application including documents
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`relating to Opposer first becoming aware of Applicant’s Mark.
`
`4.
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`All documents relating to third party uses of “Monster” as a trademark or
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`component of a trademark.
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`5.
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`All documents reviewed or relied on by Opposer that form the basis for Opposer’s
`
`allegations in its Notice of Opposition.
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`6.
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`7.
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`Opposer’s organizational charts.
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`All documents identified in Opposer’s responses to Applicant’s First Set of
`
`Interrogatories, served concurrently herewith.
`
`Dated: September 5, 2019
`
`TARTER KRINSKY & DROGIN LLP
`Attorneys for Applicant
`
`By:
`
`/Philip Braginsky/
`Philip Braginsky
`1350 Broadway, 11th Floor
`New York, New York 10018
`Ph. (212) 216-8000
`Fax (212) 216-8001
`pbraginsky@tarterkrinsky.com
`
`
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`8
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`
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`CERTITIFICATE OF SERVICE
`
`I hereby certify that a true and complete copy of the foregoing I LOVE SUGAR’S FIRST
`SET OF REQUESTS FOR THE PRODUCTION OF DOCUMENTS, ESI AND THINGS has been
`served on September 05, 2019 via email to:
`
`
`
`
`
`
`
`
`
`
`
`Ari.Feinstein, Esq.
`Steven Nataupsky, Esq.
`Matthew Bellinger, Esq.
`Jonathon A. Menkes, Esq.
`Knobbe, Martens, Olson & Bear LLP
`2040 Main Street, 14th Floor
`Irvine, CA 92614
`UNITED STATES
`Ari.Feinstein@knobbe.com
`steven.nataupsky@knobbe.com
`Jonathan.Menkes@knobbe.com
`Matt.Bellinger@knobbe.com
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`By: /Amie Campbell/
`
`
`9
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`
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