Trademark Trial and Appeal Board Electronic Filing System. https://estta.uspto.gov
`
`ESTTA Tracking number:
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`ESTTA1208251
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`Filing date:
`
`05/10/2022
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Proceeding no.
`
`91272414
`
`Party
`
`Correspondence
`address
`
`Submission
`
`Filer's name
`
`Filer's email
`
`Signature
`
`Date
`
`Plaintiff
`Lyft, Inc.
`
`ALYSSA M WORSHAM
`WILSON SONSINI GOODRICH & ROSATI
`650 PAGE MILL ROAD
`PALO ALTO, CA 94304-1050
`UNITED STATES
`Primary email: trademarks@wsgr.com
`650-493-9300
`
`Other Motions/Submissions
`
`Alyssa M. Worsham
`
`trademarks@wsgr.com
`
`/Alyssa M. Worsham/
`
`05/10/2022
`
`Attachments
`
`Standard Protective Order.pdf(515242 bytes )
`
`

`

`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Lyft, Inc.,
`
`v.
`
`Opposer,
`
`Prestige Health Solutions, LLC,
`
`Applicant.
`
`)
`)
`)
`)
`)
`)
`)
`)
`)
`
`Opposition No. 91272414 (Parent case)
`Opposition No. 91272499
`
`STANDARD PROTECTIVE ORDER
`
`Pursuant to Trademark Trial and Appeal Board Rule 2.116(g), this Standard Protective
`Order (“Order”) is entered into between Applicant Prestige Health Solutions, LLC and Opposer
`Lyft, Inc. (the “parties”).
`
`Information disclosed by any party or non-party witness during this proceeding may be
`considered (1) Confidential or (2) Confidential – For Attorneys’ Eyes Only (trade secret/
`commercially sensitive) by a party or witness. To preserve the confidentiality of the information
`so disclosed, the parties are hereby bound by the terms of this Order. As used in this Order, the
`term “information” covers documentary material, electronically stored information (“ESI”),
`testimony, and any other information provided during the course of this Board proceeding.
`
`This Order shall govern any information produced in this Board proceeding and
`designated pursuant to this Order, including all designated discovery depositions, all designated
`testimony depositions and declarations and affidavits, all designated deposition exhibits and
`testimony exhibits, interrogatory answers, admissions, documents and other discovery and
`testimony materials, whether produced informally, as part of mandatory disclosures, or in
`response to interrogatories, requests for admissions, requests for production of documents or
`other methods of discovery.
`
`This Order shall also govern any designated information produced or provided in this
`Board proceeding pursuant to required disclosures under any applicable federal procedural rule
`or Board rule and any supplementary disclosures thereto.
`
`This Order shall apply to the parties and to any nonparty from whom discovery or
`testimony may be sought in connection with this proceeding and who desires the protection of
`this Order.
`
`I.
`
`CLASSES OF PROTECTED INFORMATION
`
`The Rules of Practice in Trademark Cases provide that all inter parties proceeding files,
`as well as the involved registration and application files, are open to public inspection. The terms
`
`

`

`of this Order are not to be used to undermine public access to such files. When appropriate,
`however, a party or witness, on its own or through its attorney, may seek to protect the
`confidentiality of information by employing one of the following designations.
`
`A.
`
`Confidential
`
`Material to be shielded by the Board from public access.
`
`B.
`
`Confidential – Attorneys’ Eyes Only (Trade Secret/Commercially Sensitive)
`
`Material to be shielded by the Board from public access, restricted from any access by the
`parties, and available for review by outside counsel for the parties and, subject to the provisions
`of Sections IV and V, by independent experts or consultants for the parties. Such material may
`include the following types of information: (1) sensitive technical information, including current
`research, development and manufacturing information; (2) sensitive business information,
`including highly sensitive financial or marketing information; (3) competitive technical
`information, including technical analyses or comparisons of competitor’s products or services;
`(4) competitive business information, including non-public financial and marketing analyses,
`media scheduling, comparisons of competitor’s products or services, and strategic
`product/service expansion plans; (5) personal health or medical information; (6) an individual’s
`personal credit, banking or other financial information; or (7) any other commercially sensitive
`information the disclosure of which to non-qualified persons subject to this Order the producing
`party reasonably and in good faith believes would likely cause harm.
`
`II.
`
`INFORMATION NOT TO BE DESIGNATED AS PROTECTED.
`
`Information may not be designated as subject to any form of protection if it: (a) is, or
`becomes, public knowledge, as shown by publicly available writings, other than through
`violation of the terms of this Order; (b) is acquired by a non-designating party or non-party
`witness from a third party lawfully possessing such information and having no obligation to the
`owner of the information; (c) was lawfully possessed by a non-designating party or non-party
`witness prior to the opening of discovery in this proceeding, and for which there is written
`evidence of the lawful possession; (d) is disclosed by a non-designating party or non-party
`witness legally compelled to disclose the information; or (e) is disclosed by a non-designating
`party with the approval of the designating party.
`
`III.
`
`ACCESS TO PROTECTED INFORMATION.
`
`Administrative Trademark Judges, Board attorneys, and other employees of the Board are
`bound to honor the parties' designations of information as protected, except as otherwise required
`by law, but are not required to sign forms acknowledging the terms and existence of this Order.
`Court reporters, stenographers, video technicians or others who may be employed by the parties
`or their attorneys to perform services incidental to this proceeding will be bound only to the
`extent that the parties or their attorneys make it a condition of employment or obtain agreements
`from such individuals, in accordance with the provisions of Section IV.
`
`-2-
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`

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`™ Parties are defined as including individuals, officers of corporations, partners of
`partnerships, members of limited liability companies/corporations, and management
`employees of any type of business organization.
`™ Attorneys for parties are defined as including in-house counsel and outside counsel,
`including support staff operating under counsel's direction, such as paralegals or legal
`assistants, secretaries, and any other employees or independent contractors operating
`under counsel's instruction.
`Independent experts or consultants include individuals retained by a party for purposes
`related to prosecution or defense of the proceeding but who are not current or former
`employees, officers, members, directors, or partners of any party, affiliates of any party,
`or the attorneys of any party or its affiliates, or competitors to any party, or employees or
`consultants of such competitors with respect to the subject matter of the proceeding.
`™ Non-party witnesses include any individuals to be deposed during discovery or trial,
`whether willingly or under subpoena issued by a court of competent jurisdiction over the
`witness
`
`™
`
`Parties and their attorneys shall have access to information designated as confidential,
`subject to any agreed exceptions.
`
`Outside counsel, but not in-house counsel, shall have access to information designated
`as Confidential – Attorneys’ Eyes Only (trade secret/commercially sensitive).
`
`Independent experts or consultants, non-party witnesses, and any other
`individual not otherwise specifically covered by the terms of this order may be afforded access
`to confidential information in accordance with the terms that follow in Section IV.
`Further, independent experts or consultants may have access to Confidential – Attorneys’
`Eyes Only (trade secret/commercially sensitive) information if such access is agreed to by the
`parties or ordered by the Board, in accordance with the terms that follow in Sections IV and V.
`
`IV.
`
`DISCLOSURE TO ANY INDIVIDUAL.
`
`Prior to disclosure of protected information by any party or its attorney to any individual
`not already provided access to such information by the terms of this Order, the individual shall
`be informed of the existence of this Order and provided with a copy to read. The individual will
`then be required to certify in writing that the order has been read and understood and that the
`terms shall be binding on the individual. No individual shall receive any protected information
`until the party or attorney proposing to disclose the information has received the signed
`certification from the individual. A form for such certification is attached to this Order. See
`Exhibit A. The party or attorney receiving the completed form shall retain the original.
`
`V.
`
`DISCLOSURE TO INDEPENDENT EXPERTS OR CONSULTANTS.
`
`In addition to meeting the requirements of Section IV, any party or attorney proposing to
`share disclosed information with an independent expert or consultant must also notify the party
`who designated the information as protected. Notification must be personally served or
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`-3-
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`

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`forwarded by certified mail, return receipt requested, or by email, and shall provide notice of the
`name, address, occupation and professional background of the expert or independent consultant.
`
`The party or its attorney receiving the notice shall have ten (10) business days to object to
`disclosure to the expert or independent consultant. If objection is made, then the parties must
`negotiate the issue in good faith before raising the issue before the Board. If the parties are
`unable to settle their dispute, then it shall be the obligation of the party or attorney proposing
`disclosure to bring the matter before the Board with an explanation of the need for disclosure and
`a report on the efforts the parties have made to settle their dispute. The party objecting to
`disclosure will be expected to respond with its arguments against disclosure or its objections will
`be deemed waived.
`
`VI.
`
`RESPONSES TO WRITTEN DISCOVERY.
`
`Responses to interrogatories under Federal Rule 33 and requests for admissions under
`Federal Rule 36 (whether in a paper or electronic form) and which the responding party
`reasonably believes to contain protected information shall be prominently stamped or marked
`with the appropriate designation from Section I. Any inadvertent disclosure without appropriate
`designation shall be remedied as soon as the disclosing party learns of its error, by informing all
`adverse parties, in writing, of the error. The parties should inform the Board only if necessary
`because of the filing of protected information not in accordance with the provisions of
`Section XII.
`
`VII.
`
`PRODUCTION OF DOCUMENTS.
`
`If a party responds to requests for production under Federal Rule 34 by making copies
`and forwarding the copies to the inquiring party, including ESI, then the copies shall be
`prominently stamped or marked, as necessary, with the appropriate designation from Section I. If
`the responding party makes documents available for inspection and copying by the inquiring
`party, all documents shall be considered protected during the course of inspection. After the
`inquiring party informs the responding party what documents are to be copied, the responding
`party will be responsible for prominently stamping or marking the copies with the appropriate
`designation from Section I.
`
`VIII. DEPOSITIONS.
`
`Protected documents produced during an oral discovery deposition or a discovery
`deposition upon written questions, or offered into evidence during an oral testimony deposition,
`a testimony deposition upon written questions, or testimony submitted by affidavit or
`declaration, shall be noted appropriately as such by the producing or offering party at the outset
`of any discussion of the document or information contained in the document. In addition, the
`documents must be prominently stamped or marked with the appropriate designation.
`
`During discussion of any non-documentary protected information, the interested party
`shall make oral note on the record of the protected nature of the information.
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`-4-
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`

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`The transcript of any deposition (whether for discovery or testimony purposes) and all
`exhibits or attachments shall be considered protected for 30 days following the date of service of
`the transcript by the party that took the deposition. During that 30-day period, either party may
`designate the portions of the transcript, and any specific exhibits or attachments, that are to be
`treated as protected, by electing the appropriate designation from Section I. Appropriate
`stampings or markings should be made during this time, if not already done so. If no such
`designations are made, then the entire transcript and exhibits will be considered unprotected.
`
`IX.
`
`FILING NOTICES OF RELIANCE.
`
`When a party or its attorney files a notice of reliance during the party's testimony period,
`the party or attorney is bound to honor designations made by the adverse party or attorney, or
`non-party witness, who disclosed the information, so as to maintain the protected status of the
`information.
`
`X.
`
`BRIEFS.
`
`When filing briefs, memoranda, affidavits and/or declarations in support of a motion, or
`briefs at final hearing, the portions of these filings that discuss protected information, whether
`information of the filing party, or any adverse party, or any non-party witness, should be
`redacted. The rule of reasonableness for redaction is discussed in Section XII of this Order.
`
`XI.
`
`HANDLING OF PROTECTED INFORMATION.
`
`Disclosure of information protected under the terms of this Order is intended only to
`facilitate the prosecution or defense of this Board proceeding. The recipient of any protected
`information disclosed in accordance with the terms of this Order is obligated to maintain the
`confidentiality of the information and shall exercise reasonable care in handling, storing, using,
`disseminating, retaining, returning, and destroying the information.
`
`XII. REDACTION; FILING MATERIAL WITH THE BOARD.
`
`When a party or attorney must file protected information with the Board, or a motion or
`final brief that discusses such information, the protected information or portion of the
`motion/brief discussing the same should be redacted from the remainder. A rule of
`reasonableness should dictate how redaction is effected.
`
`Redaction can entail merely covering or omitting a portion of a page of material when it
`is copied or printed in anticipation of filing but can also entail the more extreme measure of
`simply filing the entire page under seal as one that contains primarily confidential material. If
`only a sentence or short paragraph of a page of material is confidential, covering that material
`when the page is copied, or omitting the material, would be appropriate.
`
`In contrast, if most of the material on the page is confidential, then filing the entire page
`under seal would be more reasonable, even if some small quantity of non-confidential material is
`then withheld from the public record. Likewise, when a multi-page document is in issue,
`reasonableness would dictate that redaction of the portions or pages containing confidential
`
`-5-
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`

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`material be effected when only some small number of pages contain such material. In contrast, if
`almost every page of the document contains some confidential material, it may be more
`reasonable to simply submit the entire document under seal. Occasions when a whole
`document or motion/brief must be submitted under seal should be very rare.
`
`Protected information, and pleadings, briefs or memoranda that reproduce, discuss or
`paraphrase such information, shall be filed with the Board under seal. If filed by mail, the
`envelopes or containers shall be prominently stamped or marked with a legend in substantially
`the following form:
`
`CONFIDENTIAL
`
`This envelope contains documents or information that are subject to a protective
`order or agreement. The confidentiality of the material is to be maintained and
`the envelope is not to be opened, or the contents revealed to any individual,
`except by order of the Board.
`
`If filed electronically by employing the Board’s Electronic System for Trademark Trial
`and Appeals (“ESTTA”), the filing party should comply with the redaction guidelines set forth
`above and click the “confidential filing” option prior to transmitting the documents
`electronically. In all situations, a redacted copy must also be filed for public view.
`
`XIII. ACCEPTANCE OF INFORMATION; INADVERTENT DISCLOSURE.
`
`Acceptance by a party or its attorney of information disclosed under designation as
`protected shall not constitute an admission that the information is, in fact, entitled to protection.
`Inadvertent disclosure of information which the disclosing party intended to designate as
`protected shall not constitute waiver of any right to claim the information as protected upon
`discovery of the error. In the event a party inadvertently files a document containing protected
`information, such party should immediately inform the Board and the Board will mark such
`document as confidential and will require the party to resubmit a redacted, publicly available
`copy of such document.
`
`If, through inadvertence, a producing party provides any “CONFIDENTIAL” or
`“CONFIDENTIAL - ATTORNEYS’ EYES ONLY” discovery material during a Board
`proceeding without marking the information as “CONFIDENTIAL” or “CONFIDENTIAL -
`ATTORNEYS’ EYES ONLY,” the producing party may subsequently inform the receiving party
`in writing of the “CONFIDENTIAL” or “CONFIDENTIAL - ATTORNEYS’ EYES ONLY”
`nature of the disclosed information, and the receiving party shall treat the disclosed information
`in accordance with this Order after receipt of such written notice and make reasonable efforts to
`retrieve any such material that has been disclosed to persons not authorized to receive the
`material under the terms hereof. A party objecting to any such “CONFIDENTIAL” or
`“ATTORNEYS’ EYES ONLY” designation shall follow the procedures set forth in Section XIV
`below. Prior disclosure of material later designated as “CONFIDENTIAL” or “ATTORNEYS’
`EYES ONLY” shall not constitute a violation of this Order.
`
`If a disclosing party through inadvertence produces or provides discovery material that it
`believes is subject to a claim of attorney-client privilege, work product immunity, or any other
`
`-6-
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`

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`privilege, the disclosing party may give written notice to the receiving party that the discovery
`material is deemed privileged and that return of the material is requested. Upon such written
`notice, the receiving party shall immediately gather the original and all copies of the material of
`which the receiving party is aware and shall immediately return the original and all such copies
`to the disclosing party.
`
`XIV. CHALLENGES TO DESIGNATIONS OF INFORMATION AS PROTECTED.
`
`If the parties or their attorneys disagree as to whether certain information should be
`protected, they are obligated to negotiate in good faith regarding the designation by the
`disclosing party. If the parties are unable to resolve their differences, the party challenging the
`designation may make a motion before the Board seeking a determination of the status of the
`information.
`
`A challenge to the designation of information as protected must be made substantially
`contemporaneous with the designation, or as soon as practicable after the basis for challenge is
`known. When a challenge is made long after a designation of information as protected, the
`challenging party will be expected to show why it could not have made the challenge at an
`earlier time. The party designating information as protected will, when its designation is timely
`challenged, bear the ultimate burden of proving that the information should be protected.
`
`XV. CONSEQUENCES OF UNCHALLENGED OVERDESIGATIONS.
`
`In the event the Board determines that a party has improperly overdesignated information
`as protected, and a party has not contested the overdesignation, the Board, on its own initiative,
`may (1) disregard the overdesignation for those matters which are improperly designated; (2)
`issue an order to show cause why the submission should not be made open to public view; (3)
`require a party to reduce redactions by redesignating as non-confidential the overdesignated
`information and resubmit a properly designated redacted copy for public view; or (4) not
`consider the improperly designated matter in rendering its decision. In the case of an order to
`show cause, or request for resubmission of a filing with proper redaction (i.e., proper designation
`of confidential matter for public access), if no response is received, the Board will redesignate
`the confidentially filed material as non-confidential and make it available for public view.
`
`XVI. BOARD'S JURISDICTION; HANDLING OF MATERIALS AFTER
`TERMINATION.
`
`The Board's jurisdiction over the parties and their attorneys ends when this proceeding is
`terminated. A proceeding is terminated only after a final order is entered and either all appellate
`proceedings have been resolved or the time for filing an appeal has passed without filing of any
`appeal.
`
`Within 30 days after the final termination of this proceeding, each party and their
`attorneys, as well as any other persons subject to the terms of this agreement, shall return to each
`disclosing party (1) all materials and documents, including ESI, containing protected
`information, (2) all copies, summaries, and abstracts thereof, and (3) all other materials,
`memoranda or documents embodying data concerning said material, including all copies
`
`-7-
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`

`

`provided pursuant to Sections IV and V of this Order. In the alternative, the disclosing party or
`its attorney may make a written request that such materials be destroyed rather than returned.
`Additionally, parties to this agreement are precluded from disclosing orally or in writing any
`protected information provided during the course of a Board proceeding once this Board
`proceeding is terminated.
`
`XVII. OTHER RIGHTS OF THE PARTIES AND ATTORNEYS.
`
`This Order shall not preclude the parties or their attorneys from making any applicable
`claims of privilege during discovery or at trial. Nor shall this Order preclude the filing of any
`motion with the Board for relief from a particular provision of this Order or for additional
`protections not provided by this Order.
`
`By Agreement of the Following:
`
`For and on behalf of PRESTIGE HEALTH
`SOLUTIONS, LLC
`
`For and on behalf of LYFT, INC.
`
`By:
`
`Name:
`
`Title:
`
`By:
`
`Name:
`
`Title:
`
`-8-
`
`

`

`EXHIBIT A
`
`CERTIFICATE OF COMPLIANCE
`
`Protected information, in whole or in part, and the information contained therein which
`has been produced by the parties to this Board proceeding pursuant to the attached Standard
`Protective Order has been disclosed to me. By signing this Certificate of Compliance, I
`acknowledge and agree that I have read, understand, and am subject to the provisions of the
`Order and will not disclose such protected information in whole or in part or in any form or the
`information contained therein to any person, corporation, partnership, firm, governmental agency
`or association other than those persons who are authorized under the Standard Protective Order
`to have access to such information.
`
`________________________________
`Date
`
`________________________________
`Signature
`
`________________________________
`Name (print)
`
`-9-
`
`

`

`CERTIFICATE OF SERVICE BY MAIL
`
`I, Kathleen Brunner, declare:
`
`I am employed in Santa Clara County, State of California. I am over the age of 18 years
`
`and not a party to the within action. My business address is Wilson Sonsini Goodrich &
`
`Rosati, 650 Page Mill Road, Palo Alto, California 94304-1050.
`
`On this date, I served STANDARD PROTECTIVE ORDER by forwarding the
`
`document(s) by electronic transmission on this date to the Internet email address listed below:
`
`Monica M. Moussighi
`Moussighi Law
`monica@moussighilaw.com
`
`I declare under penalty of perjury under the laws of the State of California that the
`
`foregoing is true and correct. Executed at Port Angeles, Washington on May 10, 2022.
`
`Kathleen Brunner
`
`
`
`