Estta970830 05/01/2019 in the United States

Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA970830 Filing date: 05/01/2019

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91241586 Party Defendant Copper Cane LLC Correspondence SCOTT W PETERSEN Address HOLLAND & KNIGHT LLP 131 SOUTH DEARBORN STREET, 30TH FLOOR CHICAGO, IL 60603-5517 UNITED STATES [email protected], [email protected], dav- [email protected], [email protected], [email protected] 312-578-6689

Submission Opposition/Response to Motion Filer's Name Daniel C. Neustadt Filer's email [email protected], [email protected], dav- [email protected], [email protected], ptdocket- [email protected], [email protected] Signature /Daniel C. Neustadt/ Date 05/01/2019 Attachments Opp No 91241586 -- Memorandum of Law in Oppoistion to Opposer Motion to Compel Discovery w decl and exh.pdf(4853229 bytes )

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

MEMORANDUM OF LAW IN OPPOSITION TO OPPOSER’S MOTION TO COMPEL DISCOVERY

This limited proceeding concerns – only – whether Applicant Copper Cane LLC’s

(“Applicant”) intent-to-use application to register the mark WILLAMETTER JOURNAL

(“Applicant’s Mark”), for wine made of grapes sourced entirely from the Willamette Valley,

may be registered, and whether Opposer Willamette Valley Vineyard Inc.’s (“Opposer”)

registrations for the marks WILLAMETTE and WILLAMETTE VALLEY VINEYARDS

(“Opposer’s Alleged Marks”), both also for wine, must be cancelled. Specifically, Opposer’s non-likelihood of consumer confusion opposition grounds are confined to the discrete matter of geographic origin; specifically, whether WILLAMETTER JOURNAL identifies a place other than the origin of Applicant’s wine, or whether, when used with wine, WILLAMETTER

JOURNAL is primarily geographically deceptively misdescriptive. The scope of discovery should be accordingly limited.

“[T]he scope of relevance in Board proceedings is narrow” – a maxim Opposer espouses

in its correspondence, but ignores in practice.1 See Fed. R. Civ. P. 26; TBMP § 402 (2018).2 In its motion to compel, Opposer generally seeks (i) all documents concerning Applicant’s general use of “Willamette” and “Willamette Valley” – not Applicant’s WILLAMETTER JOURNAL mark – and (ii) all documents and communications concerning the appellation or AVA of

Applicant’s wine – something that is not disputed.3 As set forth below, when considered in the context of these proceedings, the discovery Opposer seeks is neither relevant nor proportional but rather an inappropriate fishing expedition.

BACKGROUND

A. Applicant, WILLAMETTER JOURNAL Wine Made from Willamette Valley Grapes, and the Instant Proceeding.

Applicant, Copper Cane, is a California-based winery founded by Joe Wagner. Its offerings include the top-selling Oregon-sourced pinot noir, sold under the mark ELOUAN, and

WILLAMETTER JOURNAL pinot noir, which is sourced exclusively from grapes grown in the

Willamette Valley.

This administrative proceeding concerns Opposer’s opposition to Applicant’s intent-to- use application to register the mark WILLAMETTER JOURNAL for “wine.” Opposer’s basis for its claims are (i) there is a likelihood of consumer confusion between Applicant’s Mark and

Opposer’s Alleged Marks; (ii) Applicant’s Mark comprises a geographical indication which, when used on or in connection with wine, identifies a place other than the origin of the goods, and (iii) that Applicant’s Mark, when used with wine, is primarily geographically deceptively

1 Declaration of Daniel C. Neustadt (“Neustadt Decl.”), Ex. 10 at 3. 2 “Parties may not engage in ‘fishing expeditions’ and must act reasonably in framing discovery requests. The parties are expected to take into account the principles of proportionality with regard to discovery. The scope of discovery in Board proceedings is generally narrower than in court proceedings, especially those involving infringement and/or where both parties have made extensive use of the marks.” TBMP § 402 (2018) (internal citations omitted) (emphasis added).

misdescriptive. Opposer has not alleged that Applicant’s Mark consists of deceptive matter

generally, nor has Opposer alleged that use of Applicant’s Mark in connection with the applied- for goods would be violative of or non-compliant with any governmental regulations or statutes or otherwise unlawful. Nor has Opposer alleged that it owns certification mark rights in

WILLAMETTE or WILLAMETTE VALLEY.

This proceeding also concerns Applicant’s counterclaims to cancel Opposer’s

Registration Nos. 4070687 and 2813201, for the marks WILLAMETTE and WILLAMETTE

VALLEY VINEYARDS, respectively, both for “wine.”

B. Opposer’s Public Campaign Against Applicant

Opposer has waged a scorched-earth campaign against Applicant, of which the instant

proceeding is only one front. In connection with this campaign, Opposer and its counsel – who

serve as general counsel for both Opposer and the Oregon Winegrower’s Association (“OWA”)

– have enlisted Oregon’s delegation to Congress, Oregon state representatives (at least one of

whom, David Gomberg, holds shares in Opposer), the OWA (of which Opposer is a member)

and the Oregon wine media.4 The coalition has petitioned the Oregon attorney general’s office and lodged complaints against Applicant to the federal Alcohol and Tobacco Tax and Trade

Bureau (“TTB”) and the Oregon Liquor Control Commission (“OLCC”) to reverse the federal approval of Opposer’s wine labels and revoke Applicant’s Oregon state license.

Opposer has also mobilized its OWA allies to purchase certain Oregon grapes – refused by Applicant due to smoke taint – and sell wine from them under the mark SOLIDARITY,

3 Opposer also seeks to compel discovery regarding the observations, perceptions, or impressions as to whether the grapes from which Applicant’s wine is sourced are grown in the Willamette Valley, a matter about which Opposer has not made a good faith effort to meet and confer. D.I. 19 (“Mot.”) at 15; infra. at 18. 4 See Neustadt Decl., Ex. 1 at 7 (listing Willamette Valley Vineyards under “Current OWA Professional Members”; Neustadt Decl., Ex. 2 (“Through OWA’s retainer with [counsel for Opposer], members have access to legal guidance and regulatory compliance updates on topical issues facing wineries and growers.”); see also Neustadt

complete with gratuitous media blitz, notwithstanding the fact that a small California-based

winemaker already owned registered rights to the identical mark (Reg. No. 4305759).5 Opposer has even gone so far as lobbying the Oregon state legislature to impose requirements and penalties upon winemakers – such as Applicant – who deign to purchase grapes from Oregon growers, but make their wine out of state. The new law sought by Opposer is referred to as

“purity” legislation, and has been opposed by many other Oregon winemakers and growers.6

C. Applicant’s Response to Opposer’s “Background”

Applicant submits that Opposer’s “Background” statement (Mot. at 1-4) should be viewed as exactly that: background, most of which – while reflective of a significant dispute between the parties – is irrelevant to the instant proceeding, save for its instructiveness with respect to Opposer’s incentives for its disproportionately broad discovery requests.

To the limited extent, though, that any of the “background” gloss provided by Opposer may carry some pertinence to this Opposition and specifically to Opposer’s Motion to Compel, and to avoid allowing Opposer to continue to use its refuted claims in further media campaigns,

Applicant takes this opportunity to correct certain misrepresentations.

First, contrary to Opposer’s false representation, it is decidedly not a “fact that neither

Applicant nor its California-produced wine comes from the Willamette Valley.”7 While

Applicant admits that Applicant is located and vints its wine outside of the Willamette Valley,

Decl., Ex. 3 at 3-4 (identifying a partner of Davis Wright Tremaine LLP (Opposer’s counsel) as OWA General Counsel “for all advocacy and legislative matters.”). 5 The registration is owned by Justice Grace Revival, LLC (“Justice Grace Revival”). Neustadt Decl., Exs. 4-5; see also Neustadt Decl., Ex. 6 at 1 (“[a] tiny Sonoma County producer of idiosyncratic natural wines has the trademark to ‘Solidarity’”). 6 See Neustadt Decl., Exs. 7-8. 7 Mot. at 2 (emphasis added).

facts concerning the origin of Applicant’s wine remain hotly disputed.8 Applicant has sworn under penalty of perjury that the grapes from which Applicant’s wine is derived are entirely grown within the boundaries of the Willamette Valley AVA, and has provided Opposer documentary evidence in support of its declaration.9 See In re Miracle Tuesday, LLC, 695 F.3d

1339, 1344 (Fed. Cir. 2012) (“if the goods contain a main component or ingredient from the

place identified in the mark, that connection can be sufficient to find that the goods originate

from that place”) (internal citations omitted); see also Corporacion Habanos S.A. v. Anncas Inc.,

88 USPQ2d 1785, 1791 (TTAB 2008) (“[A] product may be found to originate from a place,

even though the product is manufactured elsewhere.”) Opposer in turn concedes that, apart from

inferences it has drawn from WILLAMETTER JOURNAL wine labels with respect to certain

regulations, Opposer lacks any evidence that would support its allegation that “WILLAMETTER

JOURNAL wine is not made with at least 95 percent grapes grown in the Willamette Valley

AVA.”10

Moreover, what evidence Opposer does possess plainly undermines Opposer’s purported

basis for “questioning” the Willamette Valley origin of Applicant’s wine. For example, Opposer

relies upon a Notice of Proposed Certificate Revocation issued by the OLCC in support of its

assertion that Applicant’s WILLAMETTER JOURNAL wine is “not from the Willamette

Valley.”11 Yet the Notice, which endeavors to catalog every conceivable purported violation,

makes no mention of any violation of the Oregon state requirement that at least 95 percent of the

grapes from which a Willamette Valley-appellated wine is derived be grown within the

8 Klein Decl., Ex. 1 at 3 (“[Opposer’s CEO] Bernau questioned whether [Applicant’s disputed wines] were based exclusively on fruit sourced from the Oregon AVAs. [Applicant’s CEO] Wagner claimed they were. Neither side has proven their contention.”) (emphasis added). 9 Neustadt Decl., Ex. 9 at 8-9 (Applicant’s Response to Interrogatory No. 9). 10 Neustadt Decl., Ex. 10 at 5 (“WVV is unaware of any documents within its possession, custody, or control that would support or refute WVV’s allegation that the WILLAMETTER JOURNAL wine is not made with at least 95 percent grapes grown in the Willamette Valley AVA.”).

boundaries of the Willamette Valley AVA. The OLCC does assert that Applicant’s

WILLAMETTER JOURNAL wine does “not meet[] the requirements for claiming an

appellation of origin in the Willamette Valley AVA,” but it clearly identifies the basis for such

assertion, namely that “[the wine] was not finished in the State of Oregon,” not that the wine

originated outside the Willamette Valley. Similarly, the “use-up” authorization from the Alcohol

and Tobacco Tax and Trade Bureau (“TTB”) cited by Opposer in its Motion is directed toward

clarification as to where Applicant’s wine is “produced or made,” but it requires no corrective

measures with respect to where the wine comes from, i.e., where its grapes are grown – the

Willamette Valley. As the foregoing demonstrates, it is decidedly not a “fact” that Applicant’s wine does originate from the Willamette Valley, and Opposer lacks any evidence to support an allegation to the contrary.

Second, there is no “substantial outcry” with respect to Applicant’s use of its

WILLAMETTER JOURNAL mark that would provide support for “Opposer’s theory” of deceptiveness.12 To the extent there has been any “outcry”, it has been concocted and

perpetuated by Opposer and its supporters, including the OWA and Oregon State Representative

(and Opposer stakeholder) David Gomberg.13 Opposer’s outcry provides no support for

Opposer’s allegations of potential deception in the minds of consumers.

11 Mot. at 3-4; Klein Decl., Ex. 4. 12 See Mot. at 4 (“Opposer’s theory is hardly far-fetched. In the time since this Opposition commenced, Applicant’s use of WILLAMETTER JOURNAL on the label of wine that is not from the Willamette Valley has resulted in a substantial outcry.”) As detailed above, there is no basis for the assertion – deliberately and repeatedly misrepresented by Opposer as fact – that Applicant’s WILLAMETTER JOURNAL wine “is not from the Willamette Valley.” 13 See Klein Decl., Ex. 1 (“The last several months has seen an ongoing skirmish between California wine producer Copper Cane and the Oregon Winegrowers Association (OWA). The OWA is the Oregon wine industry’s member- supported advocacy group.”). The article upon which Opposer relies to create the impression of an independent, third-party “substantial outcry” by Oregon wine industry professionals not only concerns an association to which Opposer belongs and for which Opposer’s counsel serves as general counsel, but it is also authored by the owner of a winery located in the Dundee Hills AVA, which itself is entirely contained within the Willamette Valley AVA. See Klein Decl., Ex. 1 (“Joseph V Micallef, Contributor. I have been writing and speaking about wines and spirits for 20 years. Along the way I became a winemaker, Oregon Pinot Noir”); see also Neustadt Decl., Ex. 11 (“Joe is

Opposer’s reliance on the OWA media blitz is particularly striking given its insistence, in

its resistance to Applicant’s requests for discovery, set forth five days after filing the instant

Motion, that it is “currently unaware of any published … commentary about the wine sold under

Applicant’s Mark that [Opposer] intends to rely on in support of its claims that was authored … on [Opposer’s] behalf, or posted or published at [Opposer’s] direction.”14 Further, Opposer has

expressly disclaimed any “inten[t] to rely upon the public statements and efforts of Rep.

Gomberg in support of WVV’s deceptiveness claims;” yet the articles it relies on here to support

its deceptiveness claims expressly refer to the efforts of “various members of Oregon’s

legislative assembly,” an obvious reference to Gomberg. In view of such representations,

Opposer’s reliance on and misrepresentation of a purported “substantial outcry” reflecting

potential consumer deception is particularly galling.

Third, although not relevant to the instant proceeding or motion (except as an example of the inaccuracies advanced by Opposer and its campaign) the TTB did not “require” Applicant to surrender its WILLAMETTER JOURNAL certificate of label approval.15 The TTB requested

that Applicant voluntarily surrender the certificate (to which request Applicant chose to comply),

also a winemaker and owns Antioch Cellars, a boutique winery in Oregon specializing in Pinot Noir”); Neustadt Decl., Ex. 12 at 10 (indicating that Antioch Cellars is located in the Dundee Hills AVA).

Moreover, the article contains numerous factual inaccuracies. For example, Mr. Micallef writes that Applicant sells “around a million bottles a year” of its “Willametter brand” wine. The actual number of bottles sold is in the tens of thousands (at most), and the wine has not been on sale long enough to warrant annual figures regardless. See Klein Decl., Ex. 3 (use-up COLA for 16,440 bottles, for “the depletion of product and labels that are currently in existence”). Mr. Micallef also writes that the TTB found that Applicant violated federal labeling laws and that TTB required Applicant to surrender the previously issued certificates of label approval for its WILLAMETTER JOURNAL wine. The TTB made no such finding and issued no such requirement. The TTB requested that Applicant voluntarily surrender the certificate of approval WILLAMETTER JOURNAL label, and Applicant chose to comply. 14 Neustadt Decl., Ex. 13 at 2. 15 Mot. at 3 (“the TTB has required Applicant to surrender its certificate of label approval”).

and thereafter the TTB issued two new certificates of approval for wine labels bearing

Applicant’s Mark.16

Fourth, while the OLCC did issue a Notice of Proposed Certificate Revocation to

Applicant, Opposer is well aware that the OLCC and Applicant are actively discussing a

mutually agreeable settlement, as reflected by Opposer’s own document production.17

ARGUMENT

I. Discovery of All Documents Concerning Applicant’s Use of “Willamette” and “Willamette Valley” to Label, Advertise, or Promote Applicant’s Wine is Neither Relevant Nor Proportionate to this Proceeding

Opposer has moved to compel responses to requests seeking “All documents concerning”: (i) use of “Willamette” or “Willamette Valley” to label, advertise, or promote your wine (RFP 13); (ii) whether use of “Willamette” or “Willamette Valley” to label, advertise, or promote your wine would be false, misleading, or deceptive (RFP 14) and (iii) whether use of

“Willamette” or “Willamette Valley” to label, advertise, or promote your wine would violate any

Government Regulation pertaining to alcoholic beverages (RFP 15).

The term “concerning” was broadly defined to mean “consisting of, referring to, relating to, reflecting, or being in any way logically or factually connected with the matter discussed.”18

Thus, Opposer’s requests appears to seek discovery of all documents consisting of, referring to, relating to, reflecting, or being in any way logically or factually connected to Applicant’s use of

“Willamette” and “Willamette Valley” to label, advertise or promote Applicant’s Wine.

Opposer asserts that the requests are relevant and proper with respect to: its claim that the primary significance of WILLAMETTER JOURNAL in the minds of wine consumers is a

16 Klein Decl., Ex. 3; Neustadt Decl., Ex. 20. 17 See Neustadt Decl., Ex. 14, Wagner’s Oregon Wine War Continues (produced by Opposer) at WVV_001877 (quoting Applicant’s counsel: “We are sitting down with the OLCC to reach a mutually agreeable settlement, similar to what happened with the TTB.”).

known geographic location, namely Willamette Valley; the likelihood of a goods/place

association between Applicant’s wine and the Willamette Valley in the minds of wine

consumers; and whether any misrepresentation inherent in the mark with respect to the goods

would materially affect purchaser’s decisions to buy Applicant’s wine.19 Applicant disagrees.

A. Applicant’s general use of “Willamette” and “Willamette Valley” has no bearing on Opposer’s claims

“The Lanham Act bars registration of marks that are primarily geographically deceptively

misdescriptive, not marks that are accompanied by deceptive packaging material.”

Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 729 F. Supp. 2d 246, 254 (D.D.C.

2010) (emphasis in original).20 In this regard, any use by Applicant of “Willamette” or

“Willamette Valley” to label, advertise, or promote its wine, or whether such use would be false,

misleading, or deceptive, is irrelevant to the determination of Opposer’s claims.

Opposer generally asserts that any use by Applicant of “Willamette” and “Willamette

Valley” in connection with its wine is relevant to Opposer’s allegations of “falsity and

deception.”21 But the only conceivable alleged falsity of any relevance to the parties’ claims and

defenses concerns the origin of Applicant’s wine, which origin is to be determined on the basis

of objective evidence – e.g., where the grapes are grown or where the wine is fully finished – not

Applicant’s general use of “Willamette” and “Willamette Valley.”22 As to deception, Opposer’s

18 Klein Decl., Ex. 5 at 3. 19 Mot. at 6-15. 20 The proposition carries even more force with respect to a mark, such as Applicant’s, that is the subject of an application based on intent to use. See World Suites, Inc., v. Virginia Investors, LLC, 2002 WL 31121388, at *4 (TTAB Sept. 24, 2002) (non-precedential) (finding “no decisional or other authority” for proposition that the Board, in an intra partes proceeding concerning an intent-to-use application, “may look beyond the mark itself (as it appears in the application drawing…) to the manner in which the mark is used in the marketplace” in making a determination with respect to whether the primary significance of a mark is geographic). 21 Mot. at 16. 22 While, under Oregon regulations, the “Willamette Valley” appellation may only be used where more than 95% of the grapes from which the wine is sourced are grown in the Willamette Valley, the applicable requirements to establish origin under the Lanham Act are not nearly so severe. All that is required is a “sufficient nexus” of contacts

deceptiveness claims concern only the geographic origin of the goods, and the requested

discovery is not relevant to that analysis.

With respect to the first element of its Section 2(e)(3) claim, the primary significance of

Applicant’s Mark, to the extent such determination depends upon whether “Willamette” or

“Willamette Valley” is a well-known geographic place in the minds of consumers, Opposer – a

Willamette Valley pioneer dating back more than three decades – has ready access to sufficient materials to plead its case. See TBMP § 402.02 (2018) (“Even if the discovery sought by a party is relevant, it will be limited, or not permitted, where, inter alia, it is … obtainable from some

other source that is more convenient.”). Moreover, whether Applicant considers “Willamette” or

“Willamette Valley” to be a well-known geographic place is irrelevant to the determination of

what lies in the minds of consumers. See In re South Park, Inc., 82 USPQ2D 1507, 1513 (TTAB

2007) (“applicant’s ‘intent’ in adopting its mark is not relevant or probative of the issue at hand,

i.e., whether consumers will regard YBOR as a primarily geographic term.”).23 And to the extent

the determination of the primary significance of WILLAMETTER JOURNAL depends upon

whether consumers primarily associate the mark with the Willamette Valley, any

accompanimental use of “Willamette” or “Willamette Valley” is irrelevant. See Guantanamera

Cigar Co. v. Corporacion Habanos, S.A., 729 F. Supp. 2d at 254 (accompanying matter is

irrelevant to the determination of geographic deceptiveness).

As to the second element, whether there exists a goods/place association in the minds of

consumers between the Willamette Valley and wine, Applicant has offered to stipulate that such

a goods/place association exists negating any need for supporting documents.24 Opposer

between the use of the subject mark and the place. See, e.g., In Re Fire Island Brewing Co. LLC, No. 77696805, 2011 WL 4871865, at *8 (TTAB Sept. 23, 2011) (non-precedential). 23 See Neustadt Decl., Ex. 15 at 1-2 (March 29, 2019). 24 Neustadt Decl., Ex. 16 at 3.

refused.25 Regardless, whether such association exists in the minds of consumers cannot be

conjured from Applicant’s use of “Willamette” and “Willamette Valley” or what effect

Applicant believes such use may have.

As to the third element, the geographic origin of Applicant’s wine, the determination

depends – as discussed above – on objective, empirical facts.26 The words Applicant may or may not use or have used to label, market or promote its wine has absolutely no effect on its origin.

Lastly, with respect to the fourth element, materiality, Opposer relies upon the Board’s

2012 decision in Guantanamera Cigars for the proposition that evidence concerning the value of a branding association between goods and place is relevant to materiality.27 The reliance though is misplaced. None of the subject discovery requests are directed toward documents concerning any effort to develop an association between Applicant’s wine and the Willamette Valley.

Request No. 14 concerns whether use of “Willamette” or “Willamette Valley” would be “false, misleading, or deceptive,” not whether it would spur an association between the region and

Applicant’s wine.

To the extent that Opposer relies upon Guantamaera Cigars to compel responses

concerning Applicant’s use of “Willamette” or “Willamette Valley” to promote its wine, such reliance is entirely misplaced. The Guantanamera decision relied upon by Opposer came on remand from a D.C. district court decision, vacating the Board’s prior decision because it had

“erred as a matter of law in applying the materiality requirement.” Guantanamera Cigar Co. v.

Corporacion Habanos, S.A., 729 F. Supp. 2d 246, 254 (D.D.C. 2010). Specifically, the district court held that a mark owner’s “subjective intent provides little, if any, insight into the minds of

25 Neustadt Decl., Ex. 15 at 7 (“We appreciate Copper Cane’s willingness to stipulate to a goods-place association. However, we disagree that a stipulation resolves the need for the discovery requested….”). 26 Page 9, supra. 27 Mot. at 9 (citing Corporacion Habanos, S.A. v. Guantanamera Cigars Co., 102 USPQ2d 1085 (TTAB 2012)).

consumers” on which the determination of materiality rightly depends. Id. The court further

criticized the Board’s reliance on “extraneous and out-dated marketing material” to determine

whether the subject mark was geographically deceptive. Id.28

Accordingly, the Board on remand (in the decision relied upon by Opposer) expressly

avoided basing its finding of materiality on applicant’s intent, explicitly stating, “in light of the

district court’s instruction on the subject, we have not, in the remand of this case, relied on

applicant’s false claim that its goods include ‘Genuine Cuban Tobacco.’” Corporacion Habanos,

S.A. v. Guantanamera Cigars Co., 102 USPQ2d 1085, n.17. Therefore, this line of cases

reinforces the proposition that materiality depends, not on the subjective intent of applicant, but

rather upon “the minds of consumers” and the value they place on the association between the

pertinent goods and place.29

B. Compliance with wine labeling regulations is irrelevant to registrability, the sole issue of this proceeding

Turning to the relevance of whether use of “Willamette” and “Willamette Valley” in

connection with Applicant’s wine would violate any government regulations concerning

alcoholic beverages, Opposer asserts four purported justifications for the its motion to compel

production. First, Opposer asserts that federal and state rules and regulations are “instructive on

whether use of the mark is false or material.”30 As an initial matter, the requested discovery does

not concern the use of Applicant’s Mark – WILLAMETTER JOURNAL – it is directed to use of

28 The district court’s holding is particularly applicable to labels (now “out-dated”) used under Applicant’s surrendered certificate of label approvals, as well as those labels (soon to be “out-dated”) used under Applicant’s WILLAMETTER JOURNAL “use-up” certificate, which expires this month. 29 Opposer also relies upon two Second Circuit cases from the 1990s and a First Circuit case from the turn of the century to support its contention that intent is relevant to materiality. While such precedent may be cited for whatever persuasive weight it might carry, the Board’s 2012 Guantanamera decision remains controlling precedent. See TBMP § 101.03 (2018). 30 Mot. at 11 (emphasis added).

“Willamette” and “Willamette Valley.” More pressingly, this proceeding does not concern the use of Applicant’s Mark.

“We deal here only with the issue of registrability and what may be registered in the

PTO.” Institut National Des Appellations D’Origine v. Vintners Int’l Co., 958 F.2d 1574, 22

USPQ2d 1190, 1197 (Fed. Cir. 1992). Further, as stated by the Federal Circuit, “It is not our concern or that of the PTO what [applicant] must do to comply with the BATF [now TTB] labelling requirements.” Id.; see also Luxco, Inc. v. Consejo Regulador Del Tequila, A.C., 121

USPQ2D 1477 (TTAB 2017) (non-precedential) (“The TTB has no authority to make determinations as to trademark registrability under the Trademark Act.”) (citing The Scotch

Whisky Ass’n v. S. Comfort Corp., 176 USPQ 494, 495 (TTAB 1973), for the proposition that the

TTB “has no authority to concern itself with proprietary rights in brand names”); cf. The Am.

Meat Inst. v. Horace W. Longacre, Inc., 211 USPQ 712, 722 (TTAB 1981) (registrability of an opposed mark is determined by the provisions of the Lanham Act, not by the criteria enumerated in another agency’s label approval regulations).

While determinations by other agencies may at times be “instructive,” the relevance to

Opposer’s geographic deceptiveness claims, of whether Applicant’s use of “Willamette” or

“Willamette Valley” would violate government regulations pertaining to alcoholic beverages, is limited – if not absent altogether – to matters concerning the geographic origin of Applicant’s wine. In that respect, Opposer’s request is objectionable because duplicative of numerous other requests, including Request No. 21 and Interrogatory No. 17 (discussed below, in Section II).

To the extent that Opposer relies upon Board precedent to assert any broader relevance of governmental regulations to this case, such reliance is misplaced. For example, unlike the opposer in Stabilisierungsfonds fur Wein – where the Board found the subject mark’s misspelling

of a certification mark for wine to misrepresent compliance with the applicable regulations

governing wine from the region – Opposer here has not asserted rights in any certification marks.

Stabilisierungsfonds fur Wein v. Peter Meyer Winery GmbH, 9 USPQ2d 1073, 1076 (TTAB

1988) (finding likelihood of confusion under Section 2(d) and deceptiveness under Section 2(a) on basis that misspelling of certification mark would falsely suggest compliance with certification standards). Rather, Opposer has asserted deceptiveness only with respect to geographic origin. The scope of TTB and OLCC regulations far exceed that discrete issue.

Opposer’s second justification for compelling its government-regulations discovery is that production would be probative of an “intent to mislead,” and therefore to materiality.31 As

discussed at length above, Board precedent dictates that an applicant’s intent is irrelevant to the

determination of materiality.32 Moreover, Opposer remains licensed by the OLCC to sell

WILLAMETTER JOURNAL wine in Oregon, and the TTB, following its investigation of

Applicant’s wine, issued two new certificates of approval for labels bearing Applicant’s Mark.

The “intent to mislead” and “extreme conduct” of which Opposer accuses Applicant is actually

the licensed sale of wine under federally approved WILLAMETTER JOURNAL labels.33

As its third purported justification for the governmental regulations discovery, Opposer

asserts that production “may also give rise to additional grounds for refusal based on ‘unlawful

use.’”34 However, the 30-year old Board decision cited by Opposer provides no support for

31 Mot. at 12. 32 See pages 11-12, supra. (discussing Guantanamera Cigars decisions) 33 Opposer’s CEO characterizes the TTB as “very thorough, reconciling grape contracts, grape sources and varietal composition, weigh tags, winery computer-recorded additives identified in the varietal composition or ingredient fields, cellar work orders, ingredient POs and invoices, tank and barrel transfers, and finished packaged volumes compared to the label, packaging and advertising claims.” Neustadt Decl., Ex. 17 at 2. Opposer’s accusation of “extreme conduct” – based on Applicant’s lawful sale of wine bearing TTB-approved labels – is reflective of the merits of Opposer’s claims and the tenor of its discourse. 34 Mot. at 12.

Opposer’s fishing expedition as applied to the actual pertinent facts. The non-truncated holding from the decision reads:

As we stated in the case of Santinine Societa v. P.A.B. Produits, 209 USPQ 958 (TTAB 1981), the better practicein trying to determine whether use of a mark is lawful under one or more of the myriad regulatory acts is to ld ho a use in commerce unlawful only when the issue of compliance has previously been determined (with a finding of non-compliance) by a court or government agency having competent jurisdiction under the statute involved, or where there has been a per se violation of a statute regulating the sale of a party’s goods.

In the present case, there has been no final determination of on-compliancen by any competent court or agency regarding Kellogg’s initial shipments of its “NUTRI-GRAIN” cereal. New Generation has not contended that such a determination has been made.

Kellogg Co. v. New Generation Foods, Inc., 6 USPQ2d 2045, 2047 (TTAB 1988). Similarly, here, there has been “no final determination of non-compliance by any competent court or agency” regarding Applicant’s use of WILLAMETTER JOURNAL wine to sell Applicant’s wine. To the contrary, the TTB has issued a total of three certificates of approval for wine labels bearing Applicant’s Mark: one certificate for its initial sale; one use-up certificate, issued after investigation of Applicant’s wine and thorough review of Applicant’s labels, for use with tens of thousands of bottles of wine (see fn. 27); and a final certificate for unlimited use. Similarly, while the OLCC issued a Notice of Proposed Certificate Revocation, the notice was not a final determination, but rather a precursor to a hearing, following which the parties have engaged and remain in active discussions toward resolution.35

As its last purported justification for discovery, Opposer complains that Applicant has not articulated any “meritorious” overbreadth or undue burden objections.36 The complaint itself is meritless. First, Applicant has articulated multiple overbreadth objections, as detailed in the

parties’ correspondence and this opposition. Second, a party is under no obligation to complain of an undue burden when the discovery requested bears no relevance to the parties’ claims and defenses. Moreover, even if the discovery here demanded by Opposer were relevant, and even if the production were not burdensome, Opposer’s discovery demands would still be objectionable because the requested materials are obtainable by less burdensome means. TBMP § 402.02

(2018) (“Even if the discovery sought by a party is relevant, it will be limited, or not permitted, where, inter alia, it is unreasonably cumulative or duplicative; or is unduly burdensome or obtainable from some other source that is more convenient, less burdensome, or less expensive; or ‘where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information.’”) (internal citation and quotation omitted) (emphasis added). Opposer and its counsel have waged a campaign against Applicant and its production of wine from grapes grown in Oregon for years. It possesses copies of the certificates of label approval for each of Applicant’s Oregon-based wines, the earlier of which reflect use of

“Willamette” and “Willamette Valley,” and including the use-up certificate issued by the TTB.37

It also has in its custody, and has attached to its motion, OLCC’s Proposed Notice of Certificate

Revocation concerning the use of Willamette on Applicant’s wine.38 The requested discovery is just one more effort by Opposer to harass Applicant. On these bases, too, Opposer’s motion to compel should be denied.

35 See Klein Decl., Ex. 4; Neustadt Decl., Ex. 14 at WVV_001877 (reporting that Applicant is “sitting down with the OLCC to reach a mutually agreeable settlement, similar to what happened with the TTB”). 36 Mot. at 13. 37 Klein Decl., Ex. 3. 38 Klein Decl., Ex. 4.

II. Discovery Seeking All Documents or Communications Concerning the Appellation or AVA of Applicant’s WILLAMETTER JOURNAL Wine is Neither Relevant Nor Proportionate to this Proceeding

Opposer has moved to compel responses to the following:39

REQUEST NO. 21: All Documents concerning how to describe or identify the geographic origin or appellation of wine labelled with Applicant’s Mark.

INTERROGATORY NO. 17: Identify all communications regarding the geographic origin, appellation and/or AVA of wine labelled with Applicant’s Mark.

Applicant maintains that the requested discovery is relevant only to the extent it concerns

the geographic origin of Applicant’s wine.

As Opposer is aware, there are strict regulations – especially in Oregon – concerning the

appellation of origin or AVA that may be used on a wine label. Most of these regulations fall far

outside the scope of this proceeding. The only regulations that pertain to the registrability of

Applicant’s Mark are those that concern geographic origin. Accordingly, Applicant has agreed to

produce all discovery responsive to these requests, to the extent that they concern the geographic

origin of the wine labelled with Applicant’s Mark.40

Opposer’s broader discovery requests are unfounded. Opposer maintains that discovery is relevant “to show whether Applicant’s attempt to imply or refer to the Willamette Valley is false and/or whether consumers are or are likely to be misled.”41 First, as discussed at length above

(see Section 1.A), how Applicant describes its wine and any “attempt to imply or refer to the

Willamette Valley” is irrelevant to the determination of the primary significance of Applicant’s

Mark, the existence of a goods/place association, or materiality, as the determination of each

39 Mot. at 13. 40 Neustadt Decl., Ex. 18 at 17 (Response to Request No. 21); Neustadt Decl., Ex. 9 at 12-13 (Response to Interrogatory No. 17). 41 Mot. at 14.

depends upon consumer perception.42 The requested discovery is even less “relevant to show whether Applicant’s attempt to imply or refer to the Willamette Valley is false,” which is understood to concern whether or not the origin of Applicant’s wine is the Willamette Valley.43

The answer to that question depends upon objective evidence, not Applicant’s descriptions or identifications or communications.

Accordingly, Opposer’s motion to compel responses from Applicant to the subject request and interrogatory beyond those that concern the geographic origin of Applicant’s wine should be denied.

III. Discovery Seeking All Documents Concerning the Observations, Perceptions, or Impressions as to the Content of Applicant’s Wine is Neither Relevant Nor Proportionate to this Proceeding

Opposer’s RFP No. 36 seeks all documents concerning “any observations, perceptions, impressions, or inquiries of any person” as to whether or how much of Applicant’s wine is derived from grapes grown in the Willamette Valley AVA. Applicant has agreed to produce representative documents concerning such inquiries.44 Opposer asserts that “Applicant has failed to come forward with any cohesive rationale to explain the fine distinction” between inquiries, on the one hand, and observations, perceptions, or impressions, on the other.45 But Opposer never asked.

In response to Applicant’s agreement to produce representative documents concerning inquiries, and to its objections with respect to relevance, privilege, and duplicative-ness, Opposer sought to meet and confer on RFP No. 36 only as to the limitation to “representative

42 Ibid. 43 Ibid. 44 Klein Decl., Ex. 7 at 9 (Response to Request No 36). 45 Mot. at 15.

documents.”46 Opposer never engaged in a good faith effort to meet and confer concerning its now-asserted entitlement to documents concerning observations, perceptions, or impressions. In view of Opposer’s failure to engage in a good faith effort to meet and confer concerning discovery responsive to RFP No. 36, its motion to compel discovery to the request should be denied. See, e.g., Hot Tamale Mama . . . and More, LLC v. SF Investments, Inc., 110 USPQ2d

1080, 1082 (TTAB 2014) (exchange between counsel that does not raise issue underlying motion to compel “fail[s] to satisfy the good faith effort obligation” under 37 C.F.R. § 2.120(f)(1).

Moreover, in view of the passage of the time and the voluminous correspondence between the parties,47 Applicant submits that Opposer has waived its rights to the requested discovery, and urges that denial be with prejudice. See TBMP § 523.04 (2018) (“If a party that served a request for discovery receives a response thereto that it believes to be inadequate, but fails to file a motion to challenge the sufficiency of the response, it may not thereafter be heard to complain about the sufficiency thereof.”)

Had Opposer engaged in a good faith effort to meet and confer on this issue, Applicant would have informed Opposer that the distinction between inquiries, on the one hand, and observations, perceptions and impressions, on the other, is that the former are directed toward objective answers and facts, while the latter concern subjective reactions. Because the requested discovery concerns the origin of Applicant’s wine, only inquiries are relevant. Observations, perceptions and impressions do not determine the origin of wine.

Moreover, Applicant readily agreed, in response to Opposer’s RFP No. 40, to produce non-privileged, responsive, representative documents concerning any instances of actual or possible confusion, mistake deception or association of any kind between Applicant and

46 Neustadt Decl., Ex. 19 at 5. 47 See Neustadt Decl. at 1, Exs. 10, 13, 15-16, 19, 21-22.

Opposer.48 Such response would appear to subsume any relevant documents concerning observations, perceptions or impressions concerning the grapes of which Applicant’s wine is comprised. Accordingly, for these additional reasons, Opposer’s motion to compel a more expansive response to RFP No. 36 should be denied.

CONCLUSION

In view of the foregoing, Applicant respectfully requests that the Board deny Opposer’s

Motion to Compel in its entirety, with prejudice.

Respectfully submitted,

COPPER CANE LLC

Date: May 1, 2019 By: /Daniel C. Neustadt/ Daniel C. Neustadt HOLLAND & KNIGHT LLP 800 17th Street N.W., Suite 1100 Washington, DC 20006 Phone: 202.469.5163 E-mail: [email protected]

Scott W. Petersen R. David Donoghue Steven Jedlinski HOLLAND & KNIGHT LLP 131 S Dearborn St. Fl. 30 Chicago, Il 60603-5517 Phone: 312.578.6689 E-mail: [email protected] Phone: 312.578.6553 E-mail: [email protected] Phone: 312.715.5818 E-mail: [email protected]

Counsel for Applicant and Counterclaim Petitioner

48 Neustadt Decl., Ex. 18 at 29 (Response to Request No. 40).

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the forgoing MEMORANDUM OF LAW IN OPPOSITION TO OPPOSER’S MOTION TO COMPEL DISCOVERY has on this 1st day of May, 2019 been served on counsel for Opposer by e-mail sent to: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected].

/Daniel C. Neustadt/ Daniel C. Neustadt

I, DANIEL C. NEUSTADT, being of full age, hereby declare:

1. I am an attorney-at-law duly licensed to practice before the courts of the State of

New York and the District of Columbia, and an associate of Holland & Knight LLP, counsel for

Copper Cane LLC (“Applicant”). I submit this declaration in support of Applicant’s

Memorandum of Law in Opposition to Opposer’s Motion to Compel Discovery.

2. Prior to the filing of Opposer’s motion, counsel for Applicant corresponded with

counsel for Opposer regarding the disputes raised in Opposer’s motion (save for the issue

concerning Opposer’s RFP No. 36 raised in Section III of Opposer’s motion) by letters dated

February 5, February 15, February 26, and March 11;1 by emails dated March 7, March 13,

March 14, and April 2; and by telephone on March 22, 2019. After conferring in good faith

(except as to the issue raised in Section III of Opposer’s motion), the parties were unable to

resolve their disagreement.

1 Although not specifically referenced in Applicant’s Opposition brief, for purposes of completeness, attached hereto as Exhibit 21-22, respectively, are true and correct copies of letters sent between Opposer’s counsel and Applicant’s counsel, dated February 15, 2019 and (initially) dated February 26, 2019, respectively.

3. Attached as Exhibit 1 is a true and correct copy of a screenshot of the Oregon

Winegrowers Association webpage “Current OWA Professional Members,” taken April 29,

2019, at https://www.oregonwinegrowers.org/page/joinowa.

4. Attached as Exhibit 2 is a true and correct copy of a screenshot of the Oregon

Winegrowers Association webpage “Legal Support,” taken April 29, 2019, at https://www.oregonwinegrowers.org/page/dwthome.

5. Attached as Exhibit 3 is a true and correct copy of a screenshot of the Oregon

Winegrowers Association webpage “Oregon Winegrowers Association Staff,” taken April 29,

2019, at https://www.oregonwinegrowers.org/page/owa_staff?.

6. Attached as Exhibit 4 is a true and correct copy of materials downloaded from the

U.S. Patent and Trademark Office’s (“USPTO”) Trademark Status and Document Retrieval

(“TSDR”) database showing the current status of Registration No. 4305759.

7. Attached as Exhibit 5 is the Registration Certificate for Registration No. 4305759, downloaded from the USPTO’s TSDR database.

8. Attached as Exhibit 6 is a true and correct copy of an article titled “Solidarity

Shattered in Wine Dispute,” authored by W. Blake Gray, with a dateline of March 1, 2019, on

Wine-Searcher.com, and printed April 26, 2019, from https://www.wine-searcher.com/m/2019/

03/solidarity-shattered-in-wine-dispute.

9. Attached as Exhibit 7 is a true and correct copy of an article titled “Rogue Valley wineries speak out about the potential effects of Senate Bill 111,” authored by Devin Gooden, with a dateline of April 22, 2019, at KOBI-TV NBC5, and printed April 26, 2019, from https://kobi5.com/news/top-stories/rogue-valley-wineries-speak-out-about-the-potential-effects- of-senate-bill-111-100637/.

10. Attached as Exhibit 8 is a true and correct copy of an article titled “Willamette

Valley wine purity bills move forward,” authored by Pete Danko in the Portland Business

Journal with a dateline of April 4, 2019, and printed April 26, 2019 from https://www.bizjournals.com/portland/news/2019/04/04/willamette-valley-wine-purity-bills- move-forward.html.

11. Attached as Exhibit 9 is a true and correct copy of excerpts from Copper Cane’s

Objections and Responses to WVV’s First Set of Interrogatories, served on January 11, 2019.

12. Attached as Exhibit 10 is a true and correct copy of a letter sent by counsel for

Opposer to me on April 8, 2019.

13. Attached as Exhibit 11 is a true and correct copy of a screenshot of the webpage

“Personal Bio,” at josephvmicallef.com, taken April 29, 2019, at http://josephvmicallef.com/ gallery/.

14. Attached as Exhibit 12 is a true and correct copy of a screenshot of the webpage

“Antioch Cellars” from Vivino.com, taken April 29, 2019, at https://www.vivino.com/ wineries/antioch-cellars.

15. Attached as Exhibit 13 is a true and correct copy of a letter sent by counsel for

Opposer to me on April 17, 2019.

16. Attached as Exhibit 14 is a true and correct copy of an article produced by

Opposer bearing bates numbers WVV_001876-78, titled “Wagner’s Oregon Wine War

Continues,” authored by Liza B. Zimmerman, with a dateline of December 8, 2018, and printed

February 17, 2019, from https://www.wine-searcher.com/m/2018/12/wagner-s-oregon-wine-war- continues.

17. Attached as Exhibit 15 is a true and correct copy of e-mail correspondence

between counsel for Applicant and counsel for Opposer sent between February 14, 2019, and

April 2, 2019, with redactions of discussions and characterizations of protected discovery.

18. Attached as Exhibit 16 is a true and correct copy of a letter I sent to counsel for

Opposer on March 11, 2019.

19. Attached as Exhibit 17 is a true and correct copy of an article titled “Jim Bernau

Responds,” published by the Oregon Wine Press with a dateline of December 1, 2018, and

printed February 14, 2019, from https://www.oregonwinepress.com/jim-bernau-responds.

20. Attached as Exhibit 18 is a true and correct copy of Copper Cane’s Objections

and Responses to WVV’s First Set of Requests for Production, served on January 11, 2019.

21. Attached as Exhibit 19 is a true and correct copy of a letter from counsel for

Opposer to Stephen J. Jeffries, counsel for Applicant, dated February 5, 2019.

22. Attached as Exhibit 20 is a true and true and correct copy of the Department of

Treasury, Application for and Certification/Exemption of Label/Bottle Approval for the brand

The Willametter, filed by Copper Cane LLC, issued on November 20, 2018, and without expiration date.

I declare under penalty of perjury that the foregoing is true and correct.

Executed in Washington, D.C. on May 1, 2019.

/Daniel C. Neustadt/ Daniel C. Neustadt

Exhibit 1

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CURRENT OWA PROFESSIONAL MEMBERS The Oregon Winegrowers Association is a voluntary membership-based organization that provides legislative and regulatory advocacy and lobbying for the Oregon wine grape and wine industry. The OWA provides a unified voice on key industry issues before state and federal government agencies, legislative bodies and related associations. We work to develop a positive and favorable environment for Oregon’s wineries and wine grape growers. Below you will find a list of our current OWA members. For questions about your Membership, please contact [email protected].

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12th & Maple Wine Company 2Hawk Vineyard and Winery 51Weeks Winemaking A Blooming Hill Vineyard Abacela Winery ADEA Wine Company Adelsheim Vineyard Airlie Winery Alexana Winery Alloro Vineyard Analemma Wines LLC Anderson Family Vineyard Ankeny Winery LTD Anne Amie Vineyards Antica Terra Antiquum Farm Apolloni Vineyards Aramenta Cellar at Ribbon Ridge Arbre Vert Vineyard Argyle Winery Ash Creek Vineyards

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Atticus Wine August Cellars Aurora Colony Vineyards, LLC Ayoub Wines Ayres Vineyard & Winery Bar-Gem Vineyards Battle Creek Cellars Bella Vida Vineyard Belle Colline Vineyard Belle Pente Vineyard & Winery Bells Up Winery Benza Vineyards Bergstrom Wines Bethel Heights Vineyard Big Table Farm Inc Bjornson Vineyard Blakeslee Vineyard Estate Inc Blue Heron Vineyards, LLC Bluebird Hill Cellars Bois Joli Vineyard Bradley Vineyards Bradshaw Vineyards Brandborg Vineyard & Wienry Bravuro Cellars Brick House Wine Co Brigadoon Vineyards Brittan Vineyards Brooks Winery Bryn Mawr Vineyards Calamity Hill Vineyard Cana's Feast Winery Carlton Winemakers Studio Cathedral Ridge Winery Celestina Vineyard Chehalem Crossing Family Estate Vineyards, LLC Christopher Bridge Cellars Cochran Vineyard LLC Coeur de Terre Vineyard Colene Clemens Vineyards Columbia View Orchards, LLC. Cooper Ridge Vineyard Coria Estate Wines Corollary Wines Coventina Vineyards, Cowhorn Vineyard & Garden Crannell Farms Crawford Beck Vineyard Cristom Vineyards Croft Vineyards LLC Crooked Barn Vineyards Cubanisimo Vineyards

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Daisy Creek Vineyard Dana Campbell Vineyards DANCIN Vineyards Dauntless Wine CÃ¸mpany David Hill Vineyards Deerhaven Vineyards, LLC Deerwood Vineyard Delfino Vineyards & Winery DiGiacomo Vineyards Dion Vineyards Division Winemaking Company Domaine Divio Domaine Drouhin Domaine Margelle Domaine Roy & fils Domaine Serene Domaine Verdant Dominio IV Dovydenas Wine LLC Dragon's Vineyard and Wine Company Duck Pond Cellars Dukes Family Vineyards, LLC Dunning Vineyards Durant Vineyards Eagles Nest Reserve LLC East Side Vineyards Echo Ridge Cellars EdenVale Winery Edgefield Winery Edgevale Vineyards EIEIO & Co. Elizabeth Chambers Cellar Elk Cove Vineyards Elk Creek Farm Eminent Domaine Eola Hills Vineyard Eola Hills Wine Cellars Erath Winery Evans Timber LLC Faith, Hope and Charity Vineyards Fayetta Vineyard Ferguson Vineyard Ferraro Family Vineyards Finely Bend Vineyard Finnigan Hill Finnigan Hill Fitzpatrick Vineyards LLC Flaneur Wines Folin Cellars, Ltd. Foon Estate Vineyard Forest Edge Vineyard

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Foris Vineyards Winery, LLC Fullerton Wines, Inc. Furioso Vineyard Gelardi Vineyard Ghost Hill Cellars, LLC Gold Vineyard Goschie Farms Inc. Greenwood Vineyard Guild Winemakers Hamacher Wines, Inc. Hampton Vineyards LLC Hanson Vineyards Harper Voit Wines Hawks View Winery Hayworth Estate Wines Helvetia Vineyards & Winery HIghgrove Estate Hiyu Wine Farm Holmes Gap Vineyard Hood Crest Winery Hoy Family Vineyard Hundred Suns Wine LLC Idiot's Grace Illahe Vineyards iOTA Cellars/Pelos Sandberg Vineyard Iris Vineyards Irvine & Roberts Family Vineyards J.K. Carriere Jackson Family Enterprises Jean Ray Vineyards Jesse Estate Vineyards JMD Vineyard Johan Vineyards K & M Wines Kalita Vineyard Keeler Estate Kimball Joy LLC King Estate Winery Kittyhawk Vines Koosah Farm Kremer Consulting Kriselle Cellars Kuenzi Family Vineyard La Chouette Vineyard La Dolce Vita Vineyards Lange Winery LLC LAVINEA Left Coast Cellars,m LLC Lewman Vineyard Lingua Franca Lundeen

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Mahonia Vineyards and Nursery Malliris Estate Vineyards Mary's Peak Vineyard Matteri Vineyards McClellan Estate Vineyard McCleskey Cellars Meraviglioso Winery Merveille Vineyards Methven Family Vineyards and Winery MonksGate Vineyard & Wines Montinore Estate Mt Defiance Wine Company Mt. Hood Winery, Inc. Native Flora Naumes Crush and Fermentation Nemarniki Vineyard Nysa Vineyard Oak Flat Vineyards Octave One Love Cellars, LLC Open Claim Vineyards Oswego Hills Winery Paige Wines Palmer Creek Vineyards Paradox Vineyard Perkins Harter Peter F Adams Petes Mountain Vineyard Pfeiffer Vineyards Inc Pheasant Hill Vineyard Piluso Vineyard and Winery Plagmann Farms Inc Plaisance Ranch Plumhill vineyards Ponzi Vineyards Purple Hands Winery Quady North Quail Run Vineyards, LLC Qui Plantavit Curabit LLC Quintet Cellars Rain Dance Vineyards Rainbow Ridge Vineyard RainSong Vineyard RAJA LLC Ralph E Luchterhand Raptor Ridge Winery Redhawk Winery Remy Wines, LLC River's Edge Winery Rocky Knoll ROCO Winery

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Roshni Vineyard Saginaw Vineyard LLC Sarver Winery, LLC Sass Winery Scenic Valley Farms Seven Hills Vineyard Shea Wine Cellars Shumaker Vineyards, LLC Siltstone Wines Silvan Ridge Winery Simple Machine Sineann SJR Vineyard Sokol Blosser Winery Soter Vineyards South Stage Cellars Southern Oregon Wine Institute Spangler Vineyards & Winery LLC St. Innocent Winery Stafford Vineyard Stag Hollow Wines Stangeland Winery Stave & Stone WInery Stella Maris Vineyard Stewart Vineyard Stirling Wine Grapes Inc Stoller Wine Group Stonefield Vineyards Stoney Vine LLC Stormy Morning Vineyard LLC Sunnyside Vineyard Inc. Temperance Hill Vineyard THV Corp Terrapin Cellars Terrarossa Vineyard The Capra Company The Grapeyard Three Carriages Vineyard Toluca Lane Vineyard Trella Vineyards Treos Wines Triple H Vineyard Triple Oak Vineyard Trium Wines Troon Vineyards Tukwilla Vineyard Twill Cellars Two Mules Vineyards Twomey Cellars Tyee Wine Cellars Umpqua Vineyards Union Wine Company

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Exhibit 4

Generated on: This page was generated by TSDR on 2019-04-29 16:07:51 EDT Mark: SOLIDARITY

US Serial Number: 85246108 Application Filing Feb. 18, 2011 Date: US Registration 4305759 Registration Date: Mar. 19, 2013 Number: Filed as TEAS Yes Currently TEAS Yes Plus: Plus: Register: Principal Mark Type: Trademark Status: A Sections 8 and 15 combined declaration has been accepted and acknowledged. Status Date: Apr. 04, 2018 Publication Date: Jun. 28, 2011 Notice of Aug. 23, 2011 Allowance Date:

Mark Information

Mark Literal SOLIDARITY Elements: Standard Character Yes. The mark consists of standard characters without claim to any particular font style, size, or color. Claim: Mark Drawing 4 - STANDARD CHARACTER MARK Type: Goods and Services

Note: The following symbols indicate that the registrant/owner has amended the goods/services: Brackets [..] indicate deleted goods/services; Double parenthesis ((..)) identify any goods/services not claimed in a Section 15 affidavit of incontestability; and Asterisks *..* identify additional (new) wording in the goods/services.

For: Wine International 033 - Primary Class U.S Class(es): 047, 049 Class(es): Class Status: ACTIVE Basis: 1(a) First Use: Jan. 30, 2013 Use in Commerce: Jan. 30, 2013 Basis Information (Case Level)

Filed Use: No Currently Use: Yes Amended Use: No Filed ITU: Yes Currently ITU: No Amended ITU: No Filed 44D: No Currently 44D: No Amended 44D: No Filed 44E: No Currently 44E: No Amended 44E: No Filed 66A: No Currently 66A: No Filed No Basis: No Currently No Basis: No Current Owner(s) Information

Owner Name: Justice Grace Revival, LLC. Owner Address: 441 A 14th Street San Francisco, CALIFORNIA 94103 UNITED STATES Legal Entity Type: LIMITED LIABILITY COMPANY State or Country CALIFORNIA Where Organized: Attorney/Correspondence Information

Attorney of Record - None Correspondent Correspondent JUSTICE GRACE REVIVAL, LLC. Name/Address: 441 A 14TH STREET SAN FRANCISCO, CALIFORNIA 94103 UNITED STATES Domestic Representative - Not Found Prosecution History

Proceeding Date Description Number Apr. 04, 2018 NOTICE OF ACCEPTANCE OF SEC. 8 & 15 - E-MAILED Apr. 04, 2018 REGISTERED - SEC. 8 (6-YR) ACCEPTED & SEC. 15 ACK. 70132 Apr. 04, 2018 CASE ASSIGNED TO POST REGISTRATION PARALEGAL 70132 Mar. 26, 2018 TEAS SECTION 8 & 15 RECEIVED Mar. 26, 2018 TEAS CHANGE OF CORRESPONDENCE RECEIVED Mar. 19, 2018 COURTESY REMINDER - SEC. 8 (6-YR) E-MAILED Mar. 19, 2013 REGISTERED-PRINCIPAL REGISTER Feb. 14, 2013 NOTICE OF ACCEPTANCE OF STATEMENT OF USE E-MAILED Feb. 13, 2013 LAW OFFICE REGISTRATION REVIEW COMPLETED 73296 Feb. 08, 2013 ALLOWED PRINCIPAL REGISTER - SOU ACCEPTED Feb. 08, 2013 STATEMENT OF USE PROCESSING COMPLETE 76538 Feb. 05, 2013 USE AMENDMENT FILED 76538 Feb. 05, 2013 TEAS STATEMENT OF USE RECEIVED Jun. 28, 2012 NOTICE OF APPROVAL OF EXTENSION REQUEST E-MAILED Jun. 27, 2012 EXTENSION 2 GRANTED 76538 Jun. 04, 2012 EXTENSION 2 FILED 76538 Jun. 26, 2012 CASE ASSIGNED TO INTENT TO USE PARALEGAL 76538 Jun. 04, 2012 TEAS EXTENSION RECEIVED Aug. 30, 2011 NOTICE OF APPROVAL OF EXTENSION REQUEST E-MAILED Aug. 26, 2011 EXTENSION 1 GRANTED 98765 Aug. 26, 2011 EXTENSION 1 FILED 98765 Aug. 26, 2011 TEAS EXTENSION RECEIVED Aug. 23, 2011 NOA E-MAILED - SOU REQUIRED FROM APPLICANT Jun. 28, 2011 OFFICIAL GAZETTE PUBLICATION CONFIRMATION E-MAILED Jun. 28, 2011 PUBLISHED FOR OPPOSITION May 23, 2011 LAW OFFICE PUBLICATION REVIEW COMPLETED 73296 May 20, 2011 ASSIGNED TO LIE 73296 May 20, 2011 APPROVED FOR PUB - PRINCIPAL REGISTER May 20, 2011 ASSIGNED TO EXAMINER 78325 Feb. 23, 2011 NEW APPLICATION OFFICE SUPPLIED DATA ENTERED IN TRAM Feb. 22, 2011 NEW APPLICATION ENTERED IN TRAM Maintenance Filings or Post Registration Information

Affidavit of Section 8 - Accepted Continued Use: Affidavit of Section 15 - Accepted Incontestability: TM Staff and Location Information

TM Staff Information - None File Location Current Location: TMO LAW OFFICE 111 Date in Location: Apr. 04, 2018

Exhibit 5

Exhibit 6

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Exhibit 9

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

APPLICANT AND COUNTERCLAIM PETITIONER COPPER CANE’S OBJECTIONS AND RESPONSES TO OPPOSER AND COUNTERCLAIM DEFENDANT WILLAMETTE VALLEY VINEYARDS’ FIRST SET OF INTERROGATORIES

The following responses and objections are made to the best of Applicant and Counterclaim

Petitioner Copper Cane LLC’s (“Applicant” or “Copper Cane”) present knowledge, information and belief and are based on records and information reasonably available to Applicant as of the date of this response. Applicant expressly reserves the right to supplement without prejudice the following responses and objections, and to change any and all responses therein as additional facts are ascertained, analyses are made, legal research is completed, contentions are made, or as a result of the Board’s legal determination on issues. Expert discovery has not yet begun. Applicant may supplement its responses to incorporate expert opinion and testimony when expert discovery is obtained. Applicant therefore reserves the right, at any time, to revise, amend, correct, supplement, modify or clarify its objections and responses made pursuant thereto, although it does not undertake

to do so except to the extent required by the Trademark Board Manual of Procedure or the Federal

Rules of Civil Procedure, or by Order of the Board.

Applicant’s responses and objections are made without waiving or intending to waive, but on the contrary preserving and intending to preserve: all questions as to competency, relevance, materiality, privilege, and admissibility as evidence for any purpose of the responses or subject matter thereof, in any subsequent proceeding or trial in this action or any other action; the right to object on any ground to the use of said responses and objections, or the subject matter thereof, in any subsequent proceeding or trial in this action or any other action; and the right to object on any ground at any time to other interrogatories, depositions, requests for production, requests for admission, or other discovery procedures involving or relating to the subject matter of these interrogatories.

By stating that it will provide information or produce documents in response to any particular interrogatory, Applicant makes no representation that any documents or information exists.

GENERAL OBJECTIONS

Applicant makes the following objections with respect to the Interrogatories, and incorporates by reference said objections into each response as if set forth fully therein:

1. Applicant objects to all definitions, instructions and Interrogatories to the extent that they are overly broad, unduly burdensome, oppressive, and/or designed solely to harass Applicant.

2. Applicant objects to all definitions, instructions and Interrogatories to the extent they seek information not in the possession, custody or control of Applicant.

3. Applicant objects to the Interrogatories to the extent that they seek information protected from disclosure by the attorney-client privilege, the work product doctrine, or that is otherwise not discoverable within the meaning of Fed. R. Civ. P. 26(b). Any disclosure Applicant

makes of such information is inadvertent and does not constitute a waiver of the applicable privilege or immunity as to such information, documents, and things.

4. Applicant objects to the Interrogatories to the extent that they are not reasonably calculated to lead to the discovery of admissible evidence.

5. Applicant objects to the Instructions and Definitions to the extent they are inconsistent with or more burdensome than the Trademark Board Manual of Procedure, the Federal

Rules of Civil Procedure, or Orders of the Board.

6. Applicant objects to the definition of “Applicant,” “You,” “Your,” “Applicant’s

Mark,” and “Opposer’s Marks” as ambiguous or overbroad.

7. Applicant objects to all definitions, instructions and Interrogatories as premature to the extent they seek or may rely upon expert opinions and/or testimony, which has not yet occurred.

8. Applicant objects to each and every Interrogatory to the extent that it calls for a legal conclusion. Any responses by Applicant must not be construed as providing a legal conclusion regarding the meaning or application of any terms or phrases used in the interrogatories.

9. Applicant objects to all definitions, instructions and Interrogatories to the extent that they seek to define terms and/or characterize the evidence in this matter. To the extent Applicant adopts any terms used in the definitions, instructions and Interrogatories, such adoption is specifically limited to the objections and/or responses made pursuant thereto.

10. Nothing herein shall be construed as an admission by Applicant with respect to the admissibility of any characterization contained in these Interrogatories. Applicant’s willingness to provide information in response to these Interrogatories is not a concession that the subject matter of the particular interrogatory is discoverable, relevant to this action, or admissible as evidence in any way.

11. Applicant objects to Interrogatories calling for information or documents concerning

Petitioner’s marketing plans, business plans, customers, competitors, licensees, sources of supply, the channels of trade for or retail outlets through which its products and/or services are sold, pricing or sales information, or advertising expenditures as requiring confidential business information and/or trade secrets, the disclosure of which will damage Applicant. Applicant will supply such confidential information and/or trade secrets only in accordance with the terms and conditions of the Agreed

Protective Order.

RESPONSES TO INTERROGATORIES

INTERROGATORY NO. 1:

Describe in detail the facts and circumstances concerning your conception of Applicant’s Mark.

Response to Interrogatory No. 1:

In addition to its general objections, Applicant objects to this Interrogatory to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable.

Subject to the foregoing specific and general objections, Applicant states that Joe Wagner conceived of Applicant’s Mark for use in connection with a Total Wine & More private label wine vinted from grapes grown in Oregon.

INTERROGATORY NO. 2:

Identify all persons who participated in your conception of Applicant’s Mark.

Response to Interrogatory No. 2:

In addition to its general objections, Applicant objects to this Interrogatory as overly broad because it seeks the identification of “all” participants in the Applicant’s conception of Applicant’s

Mark.

Subject to the foregoing specific and general objections, Applicant identifies Joe Wagner as the only person who participated in Applicant’s conception of Applicant’s Mark.

INTERROGATORY NO. 3:

Describe in detail Your efforts to clear Applicant’s Mark for use and registration.

Response to Interrogatory No. 3:

Subject to the foregoing general and specific objections, Applicant states that counsel for

Applicant conducted a Patent and Trademark Office records search on January 10, 2018 prior to filing an application to federally register Applicant’s Mark.

INTERROGATORY NO. 4:

Identify all federal and state trademark applications filed by you for Applicant’s Mark.

Response to Interrogatory No. 4:

In addition to its general objections, Applicant objects to this Interrogatory to the extent that it seeks information already available to Opposer, available from public federal and/or state agency records, or otherwise in the public domain and accessible to both parties.

Subject to the foregoing specific and general objection, Applicant identifies the following:

U.S. Application Serial No. 87750448.

INTERROGATORY NO. 5:

Identify all federal and state label approval applications filed by you for any wine label bearing Applicant’s Mark.

Response to Interrogatory No. 5:

In addition to its general objections, Applicant objects to this Interrogatory as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that federal and state approval applications for wine labels are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Opposer’s Marks. Applicant also objects to this Interrogatory to the extent that it seeks information already available to Opposer, available from public federal and/or state agency records, or otherwise in the public domain and accessible to both parties. Applicant further objects to this

Interrogatory to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable.

Subject to the foregoing specific and general objection, Applicant identifies the following:

TTB ID 18036001000343

TTB ID 18312001000837.

INTERROGATORY NO. 6:

Describe in detail the facts and circumstances concerning any decision to select or change the font color used for the word “Willamette” on any wine label bearing Applicant’s Mark.

Response to Interrogatory No. 6:

In addition to its general objections, Applicant objects to this Interrogatory as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, in that the facts and circumstances concerning any decision to select or change the font color used for the word “Willamette” on any wine label bearing Applicant’s Mark are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Opposer’s Marks. See, e.g., TMEP § 1203.02(f)(ii)(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)).

INTERROGATORY NO. 7:

Identify all geographic locations where the wine labelled with Applicant’s Mark was Fully Finished.

Response to Interrogatory No. 7:

Applicant’s Mark was Fully Finished is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15

U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks.

Subject to the foregoing specific and general objections, Applicant states that is wine labelled with Applicant’s Mark is Fully Finished in Rutherford, California.

INTERROGATORY NO. 8:

Identify all Finishing Techniques used in the production of wine labelled with Applicant’s Mark and all locations where such Finishing Techniques were used.

Response to Interrogatory No. 8:

Mark and the locations where such Finishing Techniques were used are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Opposer’s Marks. Applicant also objects to this Interrogatory as it is composed of multiple subparts, each of which should be properly categorized as an individual interrogatory. Applicant further objects to this Interrogatory to the extent it is cumulative with or duplicative of Interrogatory No. 7.

INTERROGATORY NO. 9:

Identify the percentage of the volume of the wine labelled with Applicant’s Mark derived from grapes grown within the Boundaries of the Willamette Valley AVA.

Response to Interrogatory No. 9:

Subject to its general objections, Applicant identifies the percentage of the volume of the wine labelled with Applicant’s Mark derived from grapes grown with the Boundaries of the

Willamette Valley AVA to be 100%.

INTERROGATORY NO. 10:

Identify the percentage of the volume of the wine labelled with Applicant’s Mark derived from grapes of the pinot noir variety.

Response to Interrogatory No. 10:

In addition to its general objections, Applicant objects to this Interrogatory as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, in that the percentage of the volume of the wine labelled with Applicant’s Mark derived from grapes of the pinot noir variety is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. §

1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks.

INTERROGATORY NO. 11:

Identify the percentage of the volume of the wine labelled with Applicant’s Mark derived from grapes of the pinot noir variety grown within the Boundaries of the Willamette Valley AVA.

Response to Interrogatory No. 11:

derived from grapes of the pinot noir variety is irrelevant to the determination of whether Applicant’s

Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15

U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant further objects to this

Interrogatory to the extent it is cumulative with or duplicative of Interrogatories No. 9 and 10.

INTERROGATORY NO. 12:

Identify the percentage of the volume of the wine labelled with Applicant’s Mark derived from grapes harvested in 2017.

Response to Interrogatory No. 12:

In addition to its general objections, Applicant objects to this Interrogatory as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, in that the percentage of the volume of the wine labelled with Applicant’s Mark derived from grapes harvested in 2017 is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. §

1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks.

INTERROGATORY NO. 13:

Identify the volume and geographic source of any grapes grown outside the Boundaries of the Willamette Valley AVA used to derive the wine labelled with Applicant’s Mark.

Response to Interrogatory No. 13

In addition to its general objections, Applicant objects to this Interrogatory as it is composed of multiple subparts, each of which should be properly categorized as an individual interrogatory.

Applicant further objects to this Interrogatory to the extent it is cumulative with or duplicative of

Interrogatory No. 9.

Subject to the foregoing specific and general objections, Applicant identifies the percentage of the volume of grapes grown outside the Boundaries of the Willamette Valley AVA used to derive the wine labelled with Applicant’s Mark to be zero.

INTERROGATORY NO. 14:

Identify the volume and harvest year of any grapes not harvested in 2017 used to derive the wine labelled with Applicant’s Mark.

Response to Interrogatory No. 14:

In addition to its general objections, Applicant objects to this Interrogatory as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, in that the volume and harvest year of any grapes not harvested in 2017 used to derive the wine labelled with Applicant’s Mark are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15

U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant also objects to this Interrogatory as it is composed of multiple subparts, each of which should be properly categorized as an individual interrogatory. Applicant further objects to this Interrogatory to the extent it is cumulative with or duplicative of Interrogatory No. 12.

INTERROGATORY NO. 15:

State the retail sale price(s) of the wine labelled with Applicant’s Mark.

Response to Interrogatory No. 15:

Subject to its general objections, Applicant states the current retail sale price at Total Wine &

More® for a 750 ml bottle of the wine labelled with Applicant’s Mark to be $29.99.

INTERROGATORY NO. 16:

Identify all persons responsible for the advertising and marketing of the wine labelled with Applicant’s Mark.

Response to Interrogatory No. 16:

In addition to its general objections, Applicant objects to this Interrogatory as it is composed of multiple subparts, each of which should be properly categorized as an individual interrogatory.

Subject to the foregoing specific and general objections, Applicant states that Total Wine &

More® is responsible for advertising and marketing the wine labelled with Applicant’s Mark.

INTERROGATORY NO. 17:

Identify all communications regarding the geographic origin, appellation and/or AVA of wine labelled with Applicant’s Mark.

Response to Interrogatory No. 17:

In addition to its general objections, Applicant objects to this Interrogatory as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that the appellation and/or AVA of wine labelled with Applicant’s Mark is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Opposer’s Marks. Applicant further objects to this Interrogatory as overly broad and unduly burdensome because it seeks “all communications” without sufficient qualification. Applicant also

objects to this Interrogatory as it is composed of multiple subparts, each of which should be properly categorized as an individual interrogatory. Applicant further objects to this Interrogatory to the extent it is cumulative with or duplicative of Interrogatory No. 9. Applicant also objects to this Interrogatory to the extent that it seeks information protected from disclosure by the attorney-client privilege and/or the work product doctrine, or that is otherwise not discoverable.

Subject to the foregoing specific and general objections, Applicant will produce any non- privileged, responsive communications concerning the geographic origin of wine labelled with

Applicant’s Mark.

INTERROGATORY NO. 18:

Identify all websites displaying Applicant’s Mark that are owned, operated, or controlled by Applicant.

Response to Interrogatory No. 18:

In addition to its general objections, Applicant objects to this Interrogatory as it is composed of multiple subparts, each of which should be properly categorized as an individual interrogatory.

Subject to the foregoing specific and general objections, Applicant states that there are no websites displaying Applicant’s Mark that are owned, operated, or controlled by Applicant.

INTERROGATORY NO. 19:

Describe all channels of trade in the United States through which wine labelled with Applicant’s Mark has been sold.

Response to Interrogatory No. 19:

In addition to its general objections, Applicant objects to this Interrogatory on the ground that it seeks proprietary and/or confidential information.

As to Objections: Respectfully submitted,

Date: January 11, 2019 By: /Stephen J. Jeffries/ Stephen J. Jeffries HOLLAND & KNIGHT LLP 800 17th Street N.W., Suite 1100 Washington, DC 20006 Phone: 202.419.2404 E-mail: [email protected]

Scott W. Petersen HOLLAND & KNIGHT LLP 131 S Dearborn St. Fl 30 Chicago, Il 60603-5517 Phone: 312.578.6689 E-mail: [email protected]

R. David Donoghue HOLLAND & KNIGHT LLP 131 S Dearborn St. Fl 30 Chicago, Il 60603-5517 Phone: 312.578.6553 E-mail: [email protected]

Daniel C. Neustadt HOLLAND & KNIGHT LLP 800 17th Street N.W., Suite 1100 Washington, DC 20006 Phone: 202.469.5163 E-mail: [email protected]

Counsel for Applicant and Counterclaim Petitioner

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the forgoing APPLICANT AND COUNTERCLAIM PETITIONER COPPER CANE’S OBJECTIONS AND RESPONSES TO OPPOSER AND COUNTERCLAIM DEFENDANT WILLAMETTE VALLEY VINEYARDS’ FIRST SET OF INTERROGATORIES has on this 11 day of January, 2019 been served on counsel for Opposer and Counterclaim Defendant by e-mail sent to: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected].

/Stephen J. Jeffries/ Stephen J. Jeffries

Exhibit 10

Suite 2400 1300 SW Fifth Avenue Portland, OR 97201-5610

Steven E. Klein 503.778.5283 tel 503.778.5299 fax

[email protected]

April 8, 2019

Via Email [email protected]

Daniel C. Neustadt Holland & Knight LLP 800 17th Street N.W., Suite 1100 Washington, D.C. 20006

Re: Willamette Valley Vineyards, Inc. v. Copper Cane LLC, Opp. No. 91241586

Dear Daniel:

We are in receipt of your eleven page letter regarding Copper Cane LLC’s (“Copper Cane”) questions and concerns regarding Willamette Valley Vineyard’s (“WVV”) objections and responses to Copper Cane’s first set of interrogatories and requests for production. We write to respond.

I. General Matters.

We disagree that WVV’s objections to Copper Cane’s discovery constitute “boilerplate” or are otherwise improper. WVV’s objections are measured and specifically tailored to each request, several of which appear to have been tendered by Copper Cane solely for purposes of engaging in a fishing expedition. (See, e.g., RFP Nos. 24-25 and Interrogatory Nos. 29-31.) Also, the fact that a word may have one or more dictionary definitions (most words do) does not mean use of a word in the context of a particular request cannot render the request properly subject to objection as vague and/or ambiguous. Further, if WVV believed a more limited set of documents or information was properly subject to discovery in response to a particular request, WVV specifically identified the documents or information it would provide in its response.

To the extent your letter raises concerns about responses or objections to specific requests, we address them below.

II. Objections and Responses to Copper Cane’s Requests for Production.

RFP No. 1. This request is blatantly overbroad and lacking any mooring to the touchstones of relevance and proportionality. Notwithstanding these obvious defects, WVV identified three

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specific and appropriately tailored categories of documents that WVV would produce in response. Your letter tenders three alternative categories, which we address as follows:

Proposed Category No. 1. All documents that concern any potential or actual confusion or deception involving Applicant’s Mark.

Response: It is not clear what broader category Copper Cane seeks by its reference to “potential” confusion, but if it helps clarify matters, WVV will produce any non- privileged documents evidencing potential or actual instances of confusion involving Applicant’s Mark. As to “deception,” your letter fails to specify whether Copper Cane is referring to Section 2(d) deception or geographic deception under Sections 2(a) and 2(e)(3). To the extent it is the former, we confirm that WVV will produce non-privileged documents evidencing potential or actual instances of Section 2(d) consumer deception involving Applicant’s Mark. To the extent it is the latter, this category would appear to be duplicative of RFP No. 14. As stated in WVV’s response to that RFP, “Opposer will produce non-privileged documents reflecting or evidencing instances of confusion, mistake or deception among purchasers or prospective purchasers of wine sold under or in connection with Applicant’s Mark as to where such wine is finished, cellared, treated or produced.”

Proposed Category No. 2. All documents and correspondence related to any pertinent press or online postings, including internal correspondence and correspondence with third parties (and documents evidencing related communications), and, in the case of press or postings made public by WVV or at its direction, drafts, notes and, and other preparatory documents.

Response: It is WVV’s position that press and online postings concerning Applicant’s Mark are generally not relevant or probative of the claims and defenses in this matter. There are, however, some press articles where Copper Cane’s personnel make an admission against interest and, to the extent there are online postings by consumers that suggest actual confusion or deception, those would certainly be relevant. Accordingly, WVV agreed to produce representative examples of press and online postings concerning Applicant’s Marks. We fail, however, to see the relevance of the documents or correspondence “related” to any pertinent press or online posting, let alone how any purported relevance would justify the time, effort and expense to search for and review all such materials under the proportionality standard applicable to Board proceedings.

Proposed Category No. 3. All pertinent correspondence in Opposer’s custody, control, or possession, whether with Applicant, internal, or with third parties, and documents evidencing related communications.

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Response: As Copper Cane is fond of noting, the scope of relevance in Board proceedings is narrow. Further, “[t]he right to discovery is not unlimited. Even if the discovery sought by a party is relevant, it will be limited, or not permitted, where, inter alia, it is unreasonably cumulative or duplicative; or is unduly burdensome or obtainable from some other source that is more convenient, less burdensome, or less expensive; or ‘where harm to the person from whom discovery is sought outweighs the need of the person seeking discovery of the information.’” TBMP § 402.02. We fail to see how this amorphous category of “pertinent correspondence” is either relevant or proportional to the actual claims and defenses in this Board proceeding. Your letter contains no explanation that justifies that discovery of such materials is either relevant or proportional.

To the extent Copper Cane believes there are other, specific and narrowly drawn categories of documents that are both responsive to RFP No. 1 and relevant and proportional to the issues in this matter, we suggest that Copper Cane identify what those categories would be and their relevance, and we will happy to consider the matter further.

RFP No. 2. We fail to see how documents concerning the trademark applications and registrations WVV has filed for marks that are not the subject of this action are relevant. Copper Cane has not identified any basis for relevance, nor has it shown how discovery of “[a]ll [d]ocuments concerning [WVV’s] efforts to secure and/or maintain federal or state trademark registration for alleged marks containing or comprised of the designation ‘Willamette’ in connection with wine or wine-related goods and/or services” is either relevant or proportional. As for your reference to WVV’s submission in support of Application Serial No. 78235368, we disagree with your characterization of the statements made by WVV therein and note, in any event, that the registration that issued from Application Serial No. 78235368 went abandoned in 2015, and is not the subject of this action.

RFP. No. 3. This request seeks “[d]ocuments sufficient to show all manner of use by you of alleged marks containing or comprised of the designation ‘Willamette’ in connection with wine or wine-related goods and/or services.” (Emphasis added.) WVV responded that it would produce “non-privileged specimens sufficient to illustrate the different ways Opposer has used the marks WILLAMETTE and/or WILLAMETTE VALLEY VINEYARDS in connection with wine.” Your letter now purports to cite Copper Cane’s various counterclaims as the basis to assert that Copper Cane is entitled to any evidence of “WVV’s use of any terms comprised of or containing ‘Willamette’ generally, whether as a mark or otherwise, and in connection with not only wine, but also wine-related goods and services.” (Emphasis added.) As a threshold matter, RFP No. 3 is specifically limited to use “of alleged marks” not any use. Further, the only use of WILLAMETTE-formative marks by WVV that is relevant to the claims and defenses in this

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matter are uses in connection with the goods recited in WVV’s asserted registrations. Those goods are limited to wine and Copper Cane has not come forward with any rationale regarding how discovery concerning use of any other mark, or of the asserted marks with any other goods or services, is relevant or proportional. See TBMP § 414(11).

RFP Nos. 4 through 10. WVV has identified the third parties actually known to Opposer to have at one time made unauthorized use of “Willamette” or “Willamette Valley” as a trademark for wine in response to Interrogatory Nos. 7 and 8. WVV has also agreed to produce representative examples of its correspondence with those parties regarding their unauthorized use. To the extent WVV has any non-privileged written consent, coexistence, and/or license agreements that were subsequently reached with any of those parties, WVV will produce those as well.

However, WVV is not obligated to provide discovery regarding any unauthorized third-party use or registration that WVV does not have actual knowledge of or that is not relevant or proportional. TBMP § 414(9). Nor has Copper Cane made any showing that all documents evidencing or pertaining to unauthorized third-party uses known to and identified by WVV in its responses is relevant or proportional to the issues involved in this case.

As for RFP Nos. 9 and 10 regarding style guides pertaining to WVV’s asserted marks, WVV disagrees that discovery of all style guides or instructions for use, let alone of drafts, correspondence, and “related materials,” are relevant or proportional. However, in a good faith effort to address Copper Cane’s concerns, WVV will produce copies of any non-privileged, final style guide WVV locates after a reasonable search of the documents within its possession, custody, or control.

RFP Nos. 11 and 12. Your letter asserts that these requests, which seek documents sufficient to show when WVV “first became aware” that the Willamette Valley is an appellation or AVA, are relevant to “any bad faith adoption of WVV’s alleged marks,” which, in turn, is allegedly relevant to Copper Cane’s defenses. Admittedly, we are unfamiliar with any “bad faith adoption” legal theory that is, or might be for the basis of, any available defense, let alone how the date WVV first became aware of the Willamette Valley’s status as an appellation or AVA would be relevant to the same. If Copper Cane would like to enlighten us further on this purported theory, we would be happy to consider the matter further.

RFP No. 13. Your letter references the fact that Copper Cane denies the allegation that “Willamette” and “Willamette Valley” has geographic significance. Your letter does not, however, explain how the discovery sought by RFP. No. 13 is either relevant or proportional to that issue, or any other issue in this opposition.

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RFP No. 18. As noted in our objection, the phrase “identified or referenced in response” is vague and ambiguous. In any event, we refer you to WVV’s stated response, which reads, in pertinent part “Opposer will produce non-privileged documents responsive to this Request located after a reasonable search of the documents within Opposer’s possession, custody and control.”

RFP No. 20. We disagree that trademark clearance search reports are relevant to or probative of issues in this matter. While a clearance search might be probative of whether an applicant, as junior user, had knowledge of an Opposer’s senior mark prior to adoption, here, WVV is the senior user and registrant. If Copper Cane has authority that supports its claim that clearance search reports are relevant in this matter, we would be happy to consider them.

RFP No. 21. WVV has agreed to produce any non-privileged agreements to license use of its WILLAMETTE or WILLAMETTE VALLEY VINEYARDS marks for wine. We disagree that the additional discovery of all letters or agreements between WVV or any other party pertaining to use of the term “Willamette” by any person for any purpose is either relevant or proportional to the claims and defenses. Your letter likewise provides no support for the conclusory assertion that any such non-trademark use is somehow probative of the “strength” of the mark or of its geographic significance or that discovery of the same is proportional to the issues in the case. To the extent Copper Cane has a rationale or authority to support its assertion, we would be happy to consider them.

RFP No. 22. Notwithstanding your letter’s assertion to the contrary, a discovery request seeking “[a]ll documents that support or refute” an allegation is, in fact, properly subject to objection. See ESI Audiotechnick GmbH v. Chang Soo Lim, 2017 WL 2572832, at *2 n.5 (TTAB May 12, 2017). Further, WVV has already identified the WILLAMETTER JOURNAL labels and federal and state regulations that form the basis of WVV’s allegation in the Second Amended Notice of Opposition (11 TTABVUE ¶ 30) that “[o]n information and belief, Applicant’s wine does not originate in the Willamette Valley AVA because, among other things, it is not made with at least 95 percent grapes grown in the Willamette Valley AVA and is not fully finished within Oregon.” Indeed, that basis is detailed in paragraphs 14-44 of the Second Amended Notice. Other than the WILLAMETTER JOURNAL labels and relevant federal and state regulations cited in the Second Amended Notice, and the limited number of incomplete and inconclusive documents Copper Cane has produced to date in discovery, WVV is unaware of any documents within its possession, custody, or control that would support of refute WVV’s allegation that the WILLAMETTER JOURNAL wine is not made with at least 95 percent grapes grown in the Willamette Valley AVA.

RFP No. 23. Copper Cane’s assertion that “terms ‘vineyard’ and ‘vineyards’ are commonly used to identify a place where wine is produced” is a subjective opinion. Among other things,

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whether a particular document “supports” or “refutes” WVV’s denial of Copper Cane’s opinion as to how such terms are commonly used requires an evaluation of facts and/or evidence that would inevitably lead to an invasion of attorney work-product. WVV has identified the factual basis for its denial that WVV intends to rely on at trial in WVV’s response to Interrogatory No. 33, and has agreed in response to RFP No. 23 to produce any documents it may rely on to support its denial. WVV stands by its objections to providing further discovery in response to the request.

RFP Nos. 24 and 25. Copper Cane has not explained how discovery regarding WVV’s communications with Representative David Gomberg or, for that matter, his statements regarding the alleged deceptiveness of Copper Cane’s mark, is either relevant or proportional to the claims or defenses in this Board proceeding. WVV stands by its objections.

RFP No. 26. This request purports to call for discovery of all documents created, reviewed, or relied on for purposes of this proceeding by any person WVV intends to call as an expert witness during this proceeding. Federal Rule of Civil Procedure 26(a)(2) governs when disclosures of materials created, reviewed, or relied on by designated experts must be made. Federal Rule of Civil Procedure 26(b)(4) bars discovery of the opinions of, and any draft report or disclosures prepared, reviewed, or relied on by, a potential expert prior to the time disclosures are due, except under exceptional circumstances not present here. To the extent any responsive documents exist, they either constitute protected work-product, or their identification as responsive would disclose protected work-product. WVV stands by its objections.

III. Objections and Responses to Copper Cane’s Interrogatories.

Interrogatory Nos. 3 and 4. Please refer to discussion of RFP Nos. 11 and 12 above.

Interrogatory Nos. 7 and 8. Copper Cane asserts that the identification of any party that has used the term “Willamette” and “Willamette Valley” in connection with wine since April 1, 1989, is purportedly relevant to its counterclaims that WVV’s marks are generic. The only use of those terms that could even be arguably relevant to those counterclaims would be third-party use as a generic term for wine. As a general matter, WVV is unaware of any third-party use of either “Willamette” or “Willamette Valley” as a generic term for wine. Given the fact that “Willamette Valley Vineyards” is both WVV’s corporate name and WVV’s core trademark, undertaking a search and review of the documents within WVV’s possession, custody, or control for theoretical references to third-party generic use of “Willamette” or “Willamette Valley” in connection with wine is neither proportionate nor likely to lead to the discovery of probative evidence.

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Copper Cane also asserts that discovery of third-party use of “Willamette” and “Willamette Valley” is relevant to whether the terms refer to a generally known geographic location. Consistent with the U.S. Patent & Trademark Office’s practice and Board precedent, WVV intends to rely on dictionary, gazetteer, statutory, and other reference and regulatory materials to establish this element of its claims. See, e.g., WVV’s Response to Interrogatory No. 9. We do not believe that discovery of WVV’s knowledge of third-party use of “Willamette” and “Willamette Valley” as a generally known geographic location is either relevant or proportional to the claims and defenses in this matter, and Copper Cane has not identify any basis for requiring disclosure of the same.

Finally, as your letter noted, WVV has identified known third party uses of “Willamette” and “Willamette Valley” as part of a trademark for wine. With regard to your letter’s suggestion that U.S. Reg. No. 3954059 should be included in WVV’s response, we note that the drawing depicted in that registration shows an entire wine label and that, as used on the label, the phrase “Willamette Valley” functions as an AVA/appellation of origin, not a trademark. In fact, the phrase “Willamette Valley” is expressly disclaimed. Thus, it is WVV’s position that the phrase “Willamette Valley” is not being used as a trademark on that label. The fact that WVV’s counsel has represented the owner of U.S. Reg. No. 3954059 is irrelevant. Any knowledge gained or positions taken by counsel on behalf of other clients are not imputed to WVV.

Interrogatory No. 9. The allegations of paragraphs 16 and 18 of WVV’s Second Amended Notice of Opposition provide background regarding the significance of the TTB’s American Viticultural Area regulatory overlay and the selection and designation process for the same. To prevail on its claims in this matter, WVV is not required to show that wines from the Willamette Valley AVA have a specific character, quality, function, composition, or use or that the wine sold by Copper Cane under the applied-for mark misdescribes that character, quality, function, composition or use. WVV need only show that Copper Cane’s mark consists or of comprises a geographical indication which, when used on wine, identifies a place other than the origin of the goods, 15 U.S.C. § 1052(a), or consists of a mark which when used on or in connection with the goods of the applicant is primarily geographically deceptively misdescriptive of them, 15 U.S.C. § 1052(e)(3).

As for your letter’s assertion that WVV’s response does not provide evidence of how consumers would view the association between wine and the Willamette Valley to be an important or material one, we disagree and note that the last paragraph of WVV’s response cites multiple examples.

Interrogatory No. 32. The basis for WVV’s allegation in its Second Amended Notice of Opposition that “[o]n information and belief, Applicant’s wine does not originate in the Willamette Valley AVA because, among other things, it is not made with at least 95 percent

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grapes grown in the Willamette Valley AVA and is not fully finished within Oregon,” is set forth in WVV’s response to Interrogatory No. 9. As stated in WVV’s response, WVV based its allegation on Copper Cane’s then-operative Certificate of Label Approval, labels, and federal and state regulations pertaining to the labelling of wine.

Interrogatory Nos. 10 and 11. WVV’s response to Interrogatory No. 9, which is incorporated by reference in WVV’s responses to Interrogatory Nos. 10 and 11, summarizes the facts and circumstances that are sufficient to support WVV’s contention that Copper Cane’s use of a mark that constitutes a false geographic indication and/or is geographically deceptively misdescriptive would be material to consumer’s purchasing decision. WVV is not required to separately repeat its answer simply because Copper Cane served additional requests that are duplicative, overlapping, and/or overbroad.

Interrogatory No. 12. WVV has identified the instance of actual confusion it is currently aware of. To the extent further instances come to WVV’s attention, it will certainly supplement its response.

Interrogatory Nos. 17-19. Please refer to our discussion regarding Interrogatory No. 9, above.

Interrogatory No. 25. We would note that this interrogatory only seeks identification of “facts and circumstances” sufficient to support WVV’s allegation that its WILLAMETTE Mark has been in continuous use in commerce in connection with wine since at least as early as February 13, 2004. Although WVV believes its response provides sufficient support for its allegation, WVV will nevertheless review its response and supplement with additional facts and details.

Interrogatory No. 28. This interrogatory purports to seek identification of all statements by Jim Bernau to third parties concerning the geographic area in which the grapes used “to vint” Copper Cane’s wine are grown. As a threshold matter, WVV objected to the interrogatory on the basis that the phrase “to vint” is undefined and unclear. Your letter fails to explain what this term purports to refer to and, to date, we still do not know what Copper Cane is asking. Further, even if we were assume that Copper Cane is using “vint” to mean something along the lines of “produce,” what Jim Bernau has said to others about where the grapes Copper Cane uses to produce its wine are grown is neither relevant nor probative of the issues in this action. Where the grapes used in connection with Copper Cane’s wine were grown can only be established through evidence that is in Copper Cane’s possession. Mr. Bernau’s views on the matter are of no import.

In addition, to the extend Mr. Bernau has made statements to others, either individually or in his capacity as an officer of WVV, in connection with petitioning representatives of state or federal legislative bodies or regulatory agencies, permitting discovery of those statements would burden

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WVV and/or Mr. Bernau’s right to petition the government for redress. Finally, as you are no doubt aware from the many news articles Copper Cane has produced in this matter, Mr. Bernau has spoken frequently about WVV’s belief that, based on the deliberately selected, strained wording of Copper Cane’s labels, Copper Cane’s wine does not comply with federal and/or state regulations regarding content requirements for wine labelled with the Willamette Valley AVA. Even if Copper Cane were able to show that Mr. Bernau’s statements on the topic had any relevance, which it cannot do, there is no showing that effort required to search for, review and identify all such statements is even remotely proportional to the issues in this matter.

Interrogatory Nos. 29-31. Copper Cane’s discovery regarding Representative David Gomberg’s equity interest in WVV, WVV’s cash contribution to his campaign, and his communications with state or federal agencies are all irrelevant, and Copper Cane has come forward with no theory or authority to suggest otherwise.

Interrogatory No. 34. Echoing our discussion of RFP No. 1, above, WVV has asserted multiple grounds for objection to Interrogatory No. 34, including on the grounds that it is unclear what information Copper Cane purports to seek via this request, how it has any possible relevance to the claims and issues in this matter, or to the extent it has relevance, and how requiring WVV to provide discovery is proportional. In an effort to provide a good faith response, WVV agreed to produce representative examples of non-privileged press articles, press releases, website, and social media posts by WVV regarding the wine sold under Applicant’s mark that are located after a reasonable search of the documents within WVV’s possession, custody, or control.

It is frankly not clear that any the examples WVV has agreed to produce are relevant on any issue in this case, but the burden to find and produce examples were sufficiently reasonable and limited that WVV agreed to do so. That having been said, your letter fails to articulate any rationale for why the broader discovery sought by Interrogatory No. 34 is either reasonable or proper, or why the production of examples is not sufficient to meet Copper Cane’s discovery needs. If Copper Cane wants to articulate its rationale for seeking this discovery or identify a more reasonable, narrowly drawn scope beyond the position articulated in your letter (asserting that WVV must identify and produce “all” requested material), we’d certainly be open to considering the matter further.

Interrogatory No. 35. WVV’s response to this interrogatory identifies the three WVV employees who principally provided and/or assisted in collecting responsive information. Copper Cane has not indicated how WVV’s response is not proper and proportional. As for the suggestion that by naming the individuals without providing their current address or present place of employment, WVV somehow failed to comply with the “Definitions and Instructions,” we note that WVV’s response specifically states that all three identified individuals are officers/employees of WVV. To the extent Copper Cane or its counsel needs to contact any of

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these individuals, all can be contacted through counsel. And to the extent Copper Cane purports to suggest that WVV is attempting to be evasive in its response, we note that WVV’s response identifies more individuals than Copper Cane identified in response to WVV’s Interrogatory No. 39, despite the fact that it appears unlikely that either of the two individuals identified provided all of the information set forth in Copper Cane’s responses. Nevertheless, if it addresses Copper Cane’s concerns, WVV will supplement its response to identify the officers or employees of WVV who furnished information for the responses to Copper Cane’s interrogatories.

For the items above for which WVV has agreed to supplement its responses, WVV anticipates providing its supplemental responses, together with WVV’s privilege log, by no later than April 15, 2019. To the extent Copper Cane continues to have any concerns regarding any of the items discussed above, we respectfully suggest that the parties schedule a time to discuss those concerns by phone to see if a resolution can be reached rather than engage in further protracted and time-consuming letter writing campaigns.

Very truly yours,

Davis Wright Tremaine LLP

Steven E. Klein

4819-3555-4194v.2 0044487-000075

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Exhibit 12

Exhibit 13

Suite 2400 1300 SW Fifth Avenue Portland, OR 97201-5610

Steven E. Klein 503.778.5283 tel 503.778.5299 fax

[email protected]

April 17, 2019

Via Email [email protected]

Daniel C. Neustadt Holland & Knight LLP 800 17th Street N.W., Suite 1100 Washington, D.C. 20006

Re: Willamette Valley Vineyards, Inc. v. Copper Cane LLC, Opp. No. 91241586

Dear Daniel:

We write in response to your April 12, 2019 letter regarding Copper Cane LLC’s (“Copper Cane”) questions and concerns regarding Willamette Valley Vineyard’s (“WVV”) objections and responses to Copper Cane’s first set of interrogatories and requests for production.

A. General Matters.

WVV stands by its objections regarding discovery pertaining to WVV’s use and registration of WILLAMETTE-formative marks other than the two registered marks at issue here. See, among other things, TBMP § 414(11).

WVV disagrees that the discovery Copper Cane seeks regarding third party non-trademark use of WILLAMETTE in connection for wine is relevant or proportional. Copper Cane’s attempt to invoke the sixth du Pont likelihood of confusion factor to suggest that third party non-trademark use is relevant to the issue of strength is not well taken. The sixth du Pont factor goes to the “number and nature of similar marks in use on similar goods.” In re E. I. du Pont de Nemours & Co., 476 F.2d 1357, 1361, 177 USPQ 563, 567 (C.C.P.A. 1973) (emphasis added.) Accordingly, only trademark use would be relevant to strength.

Further, given that WVV’s recited goods and Copper Cane’s recited goods are both identical and limited to “wine,” we disagree that third-party trademark use of similar marks with goods or services other than wine is relevant under a “crowded field” theory. Among other things, there is no third-party use with “related” goods would come closer than Copper Cane’s use with wine and the Board has repeatedly recognized that even weak marks are entitled to protection against use with identical goods.

4834-0025-8196v.1 0044487-000075

April 16, 2019 Page 2

However, in good faith effort to resolve Copper Cane’s concerns, WVV will amend its Responses to RFP Nos. 4-8 and produce non-privileged copies of documents (i) evidencing the date and manner in which WVV first communicated its objection to any third-party regarding their unauthorized use of marks consisting of or incorporating the term WILLAMETTE for alcoholic beverages; (ii) any response from such third party; and (iii) any written settlement, coexistence or license agreements (if any) by which WVV and such third party resolved their differences, that are located after a reasonable search of the documents within WVV’s possession, custody, and control.

B. Specific Requests.

Interrogatory Nos. 10 and 11. WVV’s responses to Interrogatory Nos. 10 and 11 specifically incorporate WVV’s response to Interrogatory No. 9, which is responsive to those interrogatories. As we noted, WVV is not required to separately repeat its answer.

For the record, we note that your letter once again repeats the inaccurate claim that Copper Cane has produced “irrefutable evidence” that 100% of the grapes used to make WILLAMETTER JOURNAL-branded wine are grown in the Willamette Valley AVA. As you know, Copper Cane has repeatedly failed to produce the records that would establish the content of its wine despite our extensive back on forth regarding Copper Cane’s deficient production. Further, Copper Cane’s “100%” claim has been refuted by Mr. Wagner’s own admission that “non-Willamette Pinot Noir” was added during the production of WILLAMETTER JOURNAL wine. See https://www.sfchronicle.com/wine/article/The-questions-about-Joe-Wagner-s-Oregon-wine- 13435805.php.

RFP Nos. 24-25 and Interrogatory Nos. 29-31. WVV does not intend to rely upon the public statements and efforts of Rep. Gomberg in support of WVV’s deceptiveness claims.

Interrogatory No. 34. It appears that Copper Cane is arguing that the discovery sought by Interrogatory No. 34 is relevant because it would allow “verification” of whether any reviews or commentary concerning WILLAMETTER JOURNAL wine posted or published by a consumer was actually authored by that consumer independently and not authored by, “on behalf of”, or at the direction of WVV. We disagree. But even if the Board were open to this rationale, any potential relevance would still be limited to those specific consumer reviews or commentary that WVV intends to rely on in support of its claims. We are currently unaware of any published consumer review or commentary about the wine sold under Applicant’s Mark that WVV intends to rely on in support of its claims that was authored in whole or in part by WVV, or on WVV’s behalf, or posted or published at WVV’s direction.

4834-0025-8196v.1 0044487-000075

April 16, 2019 Page 3

RFP No. 26. We confirm that, to the extent a future expert disclosure made by WVV moots WVV’s objections to producing documents responsive RFP No. 26, WVV will produce any non- privileged responsive documents subject to the mooted objections promptly after the expert disclosure is made.

* * *

In closing, accompanying this letter please find copies of (i) WVV’s Supplemental Responses and Objections to Copper Cane’s First Set of Interrogatories; (ii) WVV’s Supplemental Responses and Objections to Copper Cane’s First Set of Requests for Production; and (iii) WVV’s privilege log. We are awaiting receipt of Mr. Bernau’s executed verification of the supplemental interrogatory responses and will forward it once we have it in hand.

We believe the above resolves any remaining concerns regarding the sufficiency of WVV’s responses and objections. However, if Copper Cane continues to have any concerns regarding any of the items discussed above, we would be happy to schedule a time to discuss those concerns by phone to see if a resolution can be reached rather than engage in further protracted and time-consuming letter writing campaigns.

Very truly yours,

Davis Wright Tremaine LLP

Steven E. Klein

Enclosures

4834-0025-8196v.1 0044487-000075

Exhibit 14

2/17/2019 Wagner's Oregon Wine War Continues I Wine-Searcher News & Featmes

Wine News Wagner's Oregon Wine War Continues

Wagner's Oregon Wine War Continues

© PDX Pipeline I The Willamette Valley is known for its elegant Pi not Noirs. The Oregon ruckus over the Elouan and the Willametter Journal brands shows no sign of abating. By Liza B. Zimmerman I Posted Saturday, 08-Dec-2018

In one of the most heated cases in modern US wine-production history, Joe Wagner - of Napa Valley Caymus wine fame - continues to butt heads with Oregon producers and legislators after complying with the Alcohol and Tobacco Tax and Trade Bureau (TTB)'s requests to surrender his Oregon wine labels.

Wagner makes two wines - Elouan and the Willametter Journal - from what he maintains is 100 percent, Oregon-sourced fnuit, but produced in Cal ifornia. He adds that the wines are also in compliance with all the other specific Oregon wine-production laws, such as using 95 percent of grapes from a specified appellation if noted and 90 percent of the grape varietal indicated on the label.

Wagner adds that the wines are not only fully compliant with state and federal laws but that the Willametter Journal actually contains 99 percent, Related stories: or more than the legal limit, of grapes from the Willamette Va lle:,:. "When the government asked for information we provided it. It is not up to TTB Ste12s into Oregon Wine another producer to make sure we are in compliance," he said about the pushback he is getting from Oregon producers. Label S12at However, many Oreg.Q[l wine industry executives remain distrustful of him - and his wine-production methods - including Jim Bernau, the founder I s it Taint, or Revenggl of the Turner, Oregon-based Willamette Valley Vineyards as well as state representative David Gomberg. These two high-profile personalities Qrngon Winemakers Feel the have been leading the charge to have Wagner remove what they are calling his deceptive wine labels from Oregon and eventually the entire Heat United States.

Their pcints of contention include the fact that Wagner had put "Purely Oregon" on his labels, references the Oregon Coast, when the wines are not made there, and that he may be blending fruit from different appellations. They also express concern that he may be making the wines in a California-influenced style, which while it is not a crime it could lead to the final wines having a different flavor profile from many Oregon Pjnot Noj rs. Wagner is known for producing big, chewy, fruit-forward wines like the Meiomi brand which he sold to Constellation Brands in 2015.

Bernau says that while he and Gomberg encourage Wagner to buy Oregon grapes, they want him to "follow the laws all other law-abiding wineries follow, in all 50 states. Wagner needs to label, package and market his wines legally."

The Washington DC-based TTB asked Wagner to surrender seven labels in late November and he voluntarily gave up of nine of them. The TTB also granted Wagner a 76,033-case "use up", which allows the winery to keep and sell that amount of wines as currently labeled on the market, according to Tom Hogue, the TTB's director of congressional and public affairs. He said that the use up was designed to minimize harm to Wagner's brands, as they were previously approved labels, and to permit him to sell a certain amount of cases with the current packaging. He added that this is how all similar situations are handled and noted that he could not comment if this was an average quantity for a use up. However, 76 thousand cases is certainly not a small quantity of wine.

The Portland-based Oregon Liquor Control Commission (OLCC) is currently evaluating if Wagner's Elouan and Willametter Journal labels legally fit in the state's current wine legislative picture. "We strongly feel that there is a need to protect Oregon's valuable wine growing and producing reputation nationally," says Matthew Van Sickle, the OLCC's public affairs specialist.

A difference of opinion

Wagner's wine labels were initially TTB approved and Elouan has been among the top-selling Oregon Pinot Noirs since it debuted on the market achieving the highest national retail scanned sales in the Oregon category for Pi not Nair at $17 and above according to Nielsen rankings for the year ending June 30th, according to Bernau. As a result, Wagner intimates that Bernau and Gomberg are trying to defend their sales territory for the Willamette Valley Vintners brand, in which Gomberg is also an investor.

Gomberg adds that representatives in the state of Oregon make approximately $21,000 a year and hence are legally permitted to have other vocations and investments. He adds that he has always been transparent about his $6280 investment in the WW brand.

Some think that, as an Oregon politician, Gomberg should have divested himself of his shares in the WW winery. Robert Tobiassen, a Washington DC-based attorney who was the TTB's chief counsel, notes that when the now-deceased former senator John McCain was running for US president, he rescued himself from voting about issues related to beer as his wife was a beer industry executive. "From a financial standpoint it is unethical for him to be invested" in the WW brand, says Wagner.

Gomberg and Bernau are old friends and Bernau has also consistently contributed to his political campaigns. According to Oregon public records, he donated $5000 to Gomberg's 2016 campaign. Bernau said he could not confirm that total amount, but has "contributed to a number of political campaigns, both Democrat and Republican candidates federal, state and local over the many years, likely exceeding well over $250,000".

Wagner has also raised the issue of Gomberg having been accused in 2013 of inappropriate sexual behaviour. Nothing came of the charge, according to Gomberg, who notes that he was never actually accused of sexual misconduct and that he was simply reputed to have given somecne a "side hug". However, Wagner says the situation is indicative of his https: / /www.wine-searcher.com/m/2018/ 12/wagner-s-oregon-wine-war-continues 1/3

wvv 001876 2/17/2019 Wagner's Oregon Wine War Continues I Wine-Searcher News & Featmes ethics and regardless of what happened that the sexual misconduct accusation is an indication of Gomberg's questionable morality.

An issue of terroir and what the future holds

Wagner has always taken the unusual stance that wine is solely a product of the grapes from which it is made and is not affected by where it is produced. He adds that is it actually a positive factor that his two Oregon wines are made in California. "We are a leader in the Oregon market and are encouraging consumers to experiment with Oregon wines."

While transportation technology has vastly improved in the past years, academics express other concerns about how a wine might be affected by where it is vinified. "A long trip is different from a short trip," notes Andrew Waterhouse, a professor of enology at the University of California at Davis. "There is also an effect of local yeast. Yeasts from the local environment do participate in the fermentation .... So, taking grapes to a remote location will yield a different fermented product."

"Depending on the winemaking procedure followed, the environment could have little or more influence. For instance, if you do native fenmentations, the natural flora in vineyard and winery will have an influence. If you do not have temperature control on your fermenters, then temperature of environment can have an influence etc," shares Anita Oberholster, a cooperative extension specialist in enology at the University of California at Davis.

Whether the brands will ultimately be banned from Oregon will be subject to due process, says Michael Newman, an attorney and partner in San Francisco law firm of Holland & Knight LLP, who is representing Wagner and Copper Cane. He adds that there will be a hearing "in which Copper Cane will have an opportunity to defend themselves."

He goes on to add that, "We are sitting down with the OLCC to reach a mutually agreeable settlement, similar to what happened with the TTB." He adds that Wagner is breaking no laws and that there is nothing deceptive about the brands. He concluded that "in the spirit of compromise Wagner took off the references that might cause anyone to think that the wines are made in Oregon."

While Gomberg and Bernau are aiming to have the current labels of Wagner's wines removed from the entire US market, some believe that they may be pushing the envelope just a little too far. "Gomberg and Bernau are very vengeful and this advances no public interest," shares Sean O'Leary, a Chicago-based attorney and the president of the O'Leary Legal and Policy Group.

Wagner laments that he feels like the whole situation is a "one-sided story that was orchestrated [by Gomberg and Bernau] to confuse people and increase the share price of Willamette Valley Vintners' wines."

Moving forward, Wagner shared his hope - as somewhat of a maverick - that many of these state and federal wine regulations would eventually be entirely dismantled. "We are in a global wine industry. Everything funnels down to making the consumer happy, and keeping the old-guard mentality intact is a negative factor."

However one might doubt if that is the right move in a market where many consumers are actually seeking more information, not less, about their wines in order to better enjoy them.

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wvv 001877 2/17/2019 Wagner's Oregon Wine War Continues I Wine-Searcher News & Featmes By Kathleen Willcox I Posted Saturday, 16-Feb-2019 Craft Tax Cuts Big Business a Break

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wvv 001878

Exhibit 15

From: Neustadt, Dan C (WAS - X75163) To: Klein, Steven Cc: "Dunwoody, Stuart"; "Morrison, Sheila Fox"; "PDX TM Enforcement"; Donoghue, R. David (CHI - X66553); Jedlinski, Steven E (CHI - X65818); Jeffries, Stephen J (WAS - X72404); Petersen, Scott W (CHI - X66689); Uhlenhake, Peter J (CHI - X65892) Subject: RE: WVV/Copper Cane: Opposition No. 91241586 Date: Tuesday, April 2, 2019 5:32:00 PM

Steve,

Thanks for your email.

We reviewed the Board’s 2012 decision in Guantanamera, cited in support of WVV’s position below. As you are likely aware, the referenced decision came on remand from a D.C. district court decision, vacating the Board’s prior decision because it had “erred as a matter of law in applying the materiality requirement.” Guantanamera Cigar Co. v. Corporacion Habanos, S.A., 729 F. Supp. 2d 246, 254 (D.D.C. 2010):

The TTAB stated two reasons why the misrepresentation is material in the minds of consumers: (1) Cuba's “renown and reputation for high quality cigars” and (2) the plaintiff's subjective intent to deceive customers evidenced by previously placing “Guantanamera, Cuba” and “Genuine Cuban Tobacco” on the packaging.

…

The Court finds the plaintiff's false claims on the packaging equally inadequate to satisfy Spirits. First, the registrant's subjective intent provides little, if any, insight into the minds of consumers. Consumers could have numerous reasons as to why they purchase Guantanamera cigars, but without any objective findings, it is difficult to make an accurate conclusion as to whether the geographic misdescription will materially affect a “substantial portion” of consumers. Second, the Court does not consider extraneous and out-dated marketing material particularly relevant in determining a mark's ability to satisfy the§ 1052(e)(3) registration bar. The Lanham Act bars registration of marks that are primarily geographically deceptively misdescriptive, not marks that are accompanied by deceptive packaging material. See 15 U.S.C. § 1052.

(Bold emphasis added, italics in original.)

Accordingly, the Board on remand (in the decision WVV referenced) expressly avoided basing its finding of materiality on applicants’ intent:

From the advertisements, webpages, testimony, magazines and cigar publications and encyclopedias, we find that opposer has established that sellers of cigars in the United States market non-Cuban cigars through branding and marketing associations with Cuba because they believe that consumers value associations with Cuba in making purchasing decisions.17

Corporacion Habanos, S.A. v. Guantanamera Cigars Co., 102 U.S.P.Q.2d 1085, 2012 WL 680268, *19 (T.T.A.B. 2012) (emphasis added) The Board, in footnote 17, went on to explicitly state: “However, in light of the district court’s instruction on the subject, we have not, in the remand of this case, relied on applicant’s false claim that its goods include ‘Genuine Cuban Tobacco.’” Id., n.17 (emphasis added).

Therefore, this line of cases reinforces Copper Cane’s position that materiality depends, not on the subjective intent of applicant, but rather upon “the minds of consumers” and the value they place on the association between the pertinent goods and place.

We acknowledge your reading of In re South Park Cigar, that it “says nothing about whether or not the applicant’s understanding or intent is probative on the question” of materiality; i.e., it does not push the ball in one direction or the other.

In view of the foregoing, we would be happy to consider any additional authority, but believe that the Guantanamera line of cases should eliminate any remaining dispute.

Regards, Dan

Dan Neustadt | Holland & Knight Phone 202.469.5163 | Fax 202.955.5564

From: Klein, Steven Sent: Friday, March 29, 2019 8:16 PM To: Neustadt, Dan C (WAS - X75163) Cc: Uhlenhake, Peter J (CHI - X65892) ; Donoghue, R. David (CHI - X66553) ; Jedlinski, Steven E (CHI - X65818) ; Jeffries, Stephen J (WAS - X72404) ; Petersen, Scott W (CHI - X66689) ; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Dan:

Apologies for the delay in circling back to you. It’s been a busy week and I’ve been covering for a colleague who is out on vacation.

I had a chance to review In re South Park Cigar and note that the quoted language about intent that I believe you were referring to on our call actually comes up in the context of determining whether a term is primarily a geographic location, not whether it is material to the purchasing decision. See 82 USPQ2d 1507 at 1513 (“applicant’s ‘intent’ in adopting its mark is not relevant or probative of the issue at hand, i.e., whether consumers will regard YBOR as a primarily geographic term.”). And while the case’s discussion of materiality does talk about a few ways materiality can be inferred in an ex parte context, it says nothing about whether or not the applicant’s understanding or intent is probative on the question.

In contrast, I’d point you to Corporacion Habanos v. Guantanamera Cigars Co., 102 USPQ2d 105 (TTAB 2012), an inter partes case in which the Board noted that the best evidence of materiality provided by the parties were documents showing “those features or elements of cigars that cigar merchants emphasize, or those associations they want consumers to make, in order to sell their cigars.” Id. at 1100-1101 (emphasis added). In that case, the Board found materially based on the evidence “that sellers of cigars in the United States market non-Cuban cigars through branding and marketing associations with Cuba because they believe that consumers value associations with Cuba in making purchasing decisions.” Id. at 1103-1104 (emphasis added). Accordingly, we ask that Copper Cane reconsider its objections to providing discovery directed at the associations Copper Cane seeks to create, or believes consumers make, between the Willamette Valley and Copper Cane’s wine.

On the issues concerning RFP Nos. 11 and 12, I know Copper Cane made two supplemental productions this week, but we haven’t had a chance to review them yet. I hope to get back to you by mid-next week on whether our concerns have been addressed. We’re also in receipt of what appears to be a rather lengthy letter regarding concerning alleged deficiencies in WVV’s discovery responses. I expect to have that reviewed and a response to you by the end of next week.

Regards,

Steve

Steven E. Klein | Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 | Portland, OR 97201 Tel: (503) 778-5283 | Fax: (503) 276-5783 Email: [email protected] | Website: www.dwt.com

From: [email protected] Sent: Friday, March 22, 2019 2:59 PM To: Klein, Steven Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

[EXTERNAL]

Thanks, Steve. Have a good weekend.

Dan

Dan Neustadt | Holland & Knight Phone 202.469.5163 | Fax 202.955.5564

From: Klein, Steven Sent: Friday, March 22, 2019 5:24 PM To: Neustadt, Dan C (WAS - X75163) Cc: Uhlenhake, Peter J (CHI - X65892) ; Donoghue, R. David (CHI - X66553) ; Jedlinski, Steven E (CHI - X65818) ; Jeffries, Stephen J (WAS - X72404) ; Petersen, Scott W (CHI - X66689) ; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Dan:

Thanks for your time on the phone. As promised, attached is the document I referenced that summarizes the type of records that can fall within the “Label Information Record” bucket. Generally speaking, records exclusively related to grape chemistry are not what we’re focused on, but being able to track inputs and outputs from start to finish is. We look forward to reviewing the supplemental production next week.

On materiality, I’ll review the South Park Cigar case and get back to you with my thoughts.

Have a good weekend.

Regards,

Steve

Steven E. Klein | Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 | Portland, OR 97201 Tel: (503) 778-5283 | Fax: (503) 276-5783 Email: [email protected] | Website: www.dwt.com

From: [email protected] Sent: Thursday, March 14, 2019 6:03 PM To: Klein, Steven Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Steve,

We are not under any obligation to address every query or aspersion you may deign to cast in our or our client’s direction, and certainly not on an accelerated basis as you repeatedly attempt. Your latest email purported to impose a deadline concerning a discrete question, and so we – as a courtesy – triaged to provide a direct response to that specific inquiry. That being said, we still wait for WVV’s privilege log and fulsome document production.

To reiterate our response:

1. With respect to RFP No. 11: Applicant will produce non-privileged, responsive documents concerning the record trail for the information stated on the label of any wine labelled with Applicant’s Mark. 2. With respect to RFP No. 12, Applicant will produce non-privileged, responsive documents, from the Label Information Records for wine labelled with Applicant’s Mark, that are relevant (as respectively asserted by the parties) to the determination of the geographic origin of the wine sold under and/or in connection with Applicant’s Mark, including where the constituent grapes are grown and where the subject wine is made.

WVV may expect documents responsive to RFP Nos. 11 and 12 on or before March 29, 2019.

To be sure, WVV is entitled to – and Copper Cane has produced and will continue to produce, as necessary – discovery that is relevant to the parties’ claims and defenses. WVV is not entitled, though, to discovery that is irrelevant to the parties’ claims or defenses, no matter what protection confidentiality designations may provide, and no matter how discrete or uncontroversial the discovery may be. We are not “culling,” and we have no appetite for purported games.

Neither of our clients are served well by a discovery spat. If your client, like ours, prefers resolution on discovery issues, please let us know your availability for a call, as the protracted back-and-forth appears only to elevate temperatures unnecessarily. Otherwise, we will await your motion and will respond accordingly.

Regards, Dan

Dan Neustadt | Holland & Knight Phone 202.469.5163 | Fax 202.955.5564

From: Klein, Steven Sent: Wednesday, March 13, 2019 7:29 PM To: Neustadt, Dan C (WAS - X75163) Cc: Uhlenhake, Peter J (CHI - X65892) ; Donoghue, R. David (CHI - X66553) ; Jedlinski, Steven E (CHI - X65818) ; Jeffries, Stephen J (WAS - X72404) ; Petersen, Scott W (CHI - X66689) ; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Dan:

Given that you have responded to my email but have not addressed or answered my question, I assume the answer to my question remains “no.”

With regard to RFP 11, Copper Cane is lawfully required to maintain the records requested. For the limited amount of wine Copper Cane claims to have produced, the records should not be voluminous or controversial. Further, if Mr. Wagner’s statements to the press are to be believed, Copper Cane collected, reviewed and turned these records over to the TTB and/or OLCC back in the Fall, so there is no reason for any delay in their production in this matter. To the extent Copper Cane has concerns regarding confidentiality, there is an Agreed Protective Order in place that addresses any issues. With regard to RFP 12, we are not playing this “we’ll produce what we think is relevant” game. The requested records are discreet and should not be controversial. Where appropriate, Copper Cane can designate them AEO under the Protective Order. There is no reason for Copper Cane to be selectively culling documents from the records.

If what you are suggesting is that Copper Cane will agree to respond in full to both RFP 11 and 12, please confirm when Copper Cane will be producing the documents requested.

As for RFP Nos. 6, 13-15, 21, 36 and 39, and Interrogatory No. 17, we’ve told you the documents/information we are looking for and why we believe they are relevant to materiality. You’ve told us that you don’t believe they are relevant to materiality and why. We don’t agree. We’ll let the Board decide.

Thanks,

Steve

Steven E. Klein | Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 | Portland, OR 97201 Tel: (503) 778-5283 | Fax: (503) 276-5783 Email: [email protected] | Website: www.dwt.com

From: [email protected] Sent: Wednesday, March 13, 2019 3:22 PM To: Klein, Steven Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

[EXTERNAL]

Dear Steve,

As an initial matter, we urge you not to assume that the absence of a response from us within 24 hours to an inquiry from you means that the answer to the inquiry is “no.”

Substantively, with respect to your ultimatum below:

1. We agreed in our initial response to RFP No. 11 that Applicant “will produce non- privileged, responsive documents concerning the record trail for the information stated on the label of any wine labelled with Applicant’s Mark.” Applicant’s position has not changed.

2. With respect to RFP Nos. 6 and 12, Applicant will produce documents responsive to these requests that are relevant (as respectively asserted by the parties) to the determination of the geographic origin of the wine sold under and/or in connection with Applicant’s Mark, including where the constituent grapes are grown and where the subject wine is made.

We trust that your client remains desirous of resolution. To that end, if you care to discuss the foregoing and/or the perceived impasse concerning RFP Nos. 13-15, 21, 36 and 39, and Interrogatory No. 17, please let us know your availability for a call tomorrow or early next week.

Regards, Dan

Dan Neustadt | Holland & Knight Phone 202.469.5163 | Fax 202.955.5564

From: Klein, Steven Sent: Wednesday, March 13, 2019 3:55 PM To: Neustadt, Dan C (WAS - X75163) Cc: Uhlenhake, Peter J (CHI - X65892) ; Donoghue, R. David (CHI - X66553) ; Jedlinski, Steven E (CHI - X65818) ; Jeffries, Stephen J (WAS - X72404) ; Petersen, Scott W (CHI - X66689) ; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Dan:

I have received no response to my question about whether Copper Cane claims that its “conclusive evidence” regarding the content of its WILLAMETTE JOURNAL wine includes of anything more than some heavily redacted grape purchase contracts, a summary tank record and a single invoice for the sale of wine. In the absence of a response, I assume the answer is “no.”

Accordingly, here’s my scorecard of where things stand regarding the parties’ discovery dispute.

Thank you for confirming Copper Cane will produce documents responsive to RFP No. 7. As you suggest, we can revisit whether a supplemental response to Interrogatory No. 6 is needed after the responsive documents Copper Cane locates are produced. Thank you also for confirming that Copper Cane will produce documents responsive to RFP Nos. 35 and 40. We appreciate Copper Cane’s willingness to stipulate to a goods-place association. However, we disagree that a stipulation resolves the need for the discovery requested by RFP Nos. 6, 13-15, 21, 36, & 39 and Interrogatory No. 17. Accordingly, the parties are at an impasse and WVV will proceed with its motion to compel responses to these requests.

The one remaining open issue concerns the discovery regarding the make-up of Copper Cane’s wine. For the reasons set forth below, we disagree that Copper Cane has produced evidence, let alone “conclusive” evidence that shows or establishes the volume of its wine derived from grapes grown within the boundaries of the Willamette Valley AVA.

Copper Cane’s response to Interrogatory No. 31 (designated “CONFIDENTIAL”) CONFIDENTIAL Copper Cane also produced what purports to be a single invoice (designated “CONFIDENTIAL”) CONFIDENTIAL Assuming these figures are accurate, Copper Cane producedCONFIDENTIAL and likely CONFIDENTIAL (if not more) of WILLAMETTER JOURNAL wine in 2018.

As you may know, a case is 12 standard-sized (750ml) bottles, or 9 liters total. That means Copper Cane needs to provide source and production records that account for the content of between CONFIDENTIAL . Copper Cane has not done that. The (improperly) redacted grape purchase agreements are merely agreements to purchase grapes. They do not evidence any actual purchase of grapes, that Copper Cane took delivery of any grapes, or the volume or disposition of those grapes (or any juice or wine derived from the grapes), including whether Copper Cane engaged in any blending or treatment using additional materials.

As for the single page document (designated “CONFIDENTIAL-FOR ATTORNEY’S EYES ONLY) that CONFIDENTIAL-ATTORNEYS' EYES ONLY

Copper Cane is required by law to maintain accurate records regarding the source of its wine. See, e.g., 27 CFR § 24.314. These records include (i) grape receipt records such as weight certificates, field tags and trucking documents; (ii) crush records, such as appellation of origin percentages, tank logs, and transfer records; (iii) fermentation records, such as appellation of origin percentages, crush tank source logs, fermenter tank logs, and removal/movement records; (iv) storage records, such as appellation or origin percentages, transfer records, recalculations after blending and topping, and (v) disposition logs (transfers in bond, taxable removals, bottling, etc.). WVV has requested production of these documents, which are relevant and necessary to determine facts central to the issues in this dispute. See, e.g., RFP Nos. 6, 11, 12. Copper Cane has either raised and continued to stand on improper objections to these requests or failed to produce the documents it said it would provide.

Given the amount of time and back and forth we’ve spent on the issue and Copper Cane’s repeated efforts to artificially limit the scope of the discovery WVV is entitled to, we believe any further efforts to meet and confer would be futile and that the time has come to bring the issue to the Board for resolution. Accordingly, if we have not received confirmation from Copper Cane by the close of business today that it will produce in the materials responsive to RFP Nos. 6, 11, 12, WVV will proceed move to compel responses in full.

Regards,

Steve

Steven E. Klein | Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 | Portland, OR 97201 Tel: (503) 778-5283 | Fax: (503) 276-5783 Email: [email protected] | Website: www.dwt.com

From: Klein, Steven Sent: Tuesday, March 12, 2019 3:27 PM To: '[email protected]' Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Dan:

Perhaps you can help me out on one of the areas where we appear to be having a disconnect. Your letter repeatedly asserts that Copper Cane has produced “conclusive evidence” regarding the source and content of its WILLAMETTER JOURNAL wine. I disagree, but before I dive into the weeds with an explanation for why, I want to make sure I’m not missing something. In my review, all I’m seeing in the production are:

• 2 copies of the same Invoice of Sale (Inv. No. 11868): CC_WV- TTAB_0000517, 518;

• A collection of heavily redacted grape purchase agreements: CC_WV- TTAB_0000519-536, 542-557; and

• 2 copies of the same “bottling” record: CC_WV- TTAB_0000537-538, 558.

Are there any other documents in the production that your letter is referring to when it uses the phrase “conclusive evidence”? Thanks.

Regards,

Steve

Steven E. Klein | Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 | Portland, OR 97201 Tel: (503) 778-5283 | Fax: (503) 276-5783 Email: [email protected] | Website: www.dwt.com

From: [email protected] Sent: Monday, March 11, 2019 2:16 PM To: Klein, Steven Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

[EXTERNAL]

Steve,

Please see the attached. If you care to discuss, please let us know your availability this week for a call.

Thanks, Dan

Dan Neustadt | Holland & Knight Phone 202.469.5163 | Fax 202.955.5564

From: Klein, Steven Sent: Thursday, March 7, 2019 1:25 PM To: Neustadt, Dan C (WAS - X75163) Cc: Uhlenhake, Peter J (CHI - X65892) ; Donoghue, R. David (CHI - X66553) ; Jedlinski, Steven E (CHI - X65818) ; Jeffries, Stephen J (WAS - X72404) ; Petersen, Scott W (CHI - X66689) ; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Dan:

Thank you for your email. To be clear, it’s not a requirement from our perspective that Copper Cane provide a detailed substantive response in writing. We believe we understand Copper Cane’s positions. We just have a disagreement as to the merits. But if Copper Cane has a proposal for resolving the remaining issues, it would be far more efficient for Copper Cane to simply share the proposal rather than take the time to incorporate it into a letter setting forth a point by point response. And if it would be easier to convey the proposal by phone, I can make some time available today or tomorrow for a call. Just let me know.

One clarification regarding tomorrow. Tomorrow is the deadline for WVV to serve written responses and objections to Applicant’s interrogatories and document requests. While WVV expects that it will be making a production of documents tomorrow, WVV has not agreed and is not required to provide its full production or privilege log with its responses tomorrow. WVV will complete its production and provide its log within a reasonable timeframe.

Regards,

Steven E. Klein | Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 | Portland, OR 97201 Tel: (503) 778-5283 | Fax: (503) 276-5783 Email: [email protected] | Website: www.dwt.com

From: [email protected] Sent: Thursday, March 07, 2019 9:42 AM To: Klein, Steven Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

[EXTERNAL]

Steve,

I am glad the parties were able to resolve their disputes regarding certain interrogatory responses and we are hopeful we can do the same with respect to interrogatory number 17 and any remaining discovery issues. We will be providing our substantive response to your last letter by no later than Monday, including a proposal. Therefore, any discovery motion would be premature and would likely lead to unnecessary motion practice. And if WVV has any questions or concerns after reviewing our response, we would be happy to discuss during a telephonic meet and confer – something the parties have yet to attempt to date.

With respect to the concerns you raised last night about Copper Cane’s privilege log and documents, we will review and get back to you in due course.

Otherwise, we look forward to receiving WVV’s discovery responses, document production and privilege log tomorrow as our courtesy extension to WVV’s deadlines will have elapsed.

Regards, Dan

Dan Neustadt | Holland & Knight Phone 202.469.5163 | Fax 202.955.5564

From: Klein, Steven Sent: Wednesday, March 6, 2019 6:37 PM To: Neustadt, Dan C (WAS - X75163) Cc: Uhlenhake, Peter J (CHI - X65892) ; Donoghue, R. David (CHI - X66553) ; Jedlinski, Steven E (CHI - X65818) ; Jeffries, Stephen J (WAS - X72404) ; Petersen, Scott W (CHI - X66689) ; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Dan:

Thank you for forwarding Copper Cane’s supplemental responses to WVV’s First Set of Interrogatories. Based on our review, we agree that the supplemental responses address our concerns regarding the answers to Interrogatory Nos. 20, 22, 26, and 34. We disagree, however, that the supplemental response to Interrogatory No. 17, which is still limited to communications regarding “geographic origin” (to the exclusion of communications about “appellation and/or AVA”) resolves our concerns. Accordingly, we will pursue discovery of communications regarding appellation and/or AVA in the motion we will be filing with the Board.

You indicated that you were also going to be providing a more substantive response to our February 26, 2019 letter, but we haven’t received anything further. Based on our review of the supplemental responses, it appears the parties are at an impasse on the remaining issues. Please let us know, however, whether Copper Cane is revising its position with regard to any of the other issues with Copper Cane’s responses that were raised in our letter.

We have had the opportunity to review Copper Cane’s Privilege Log. As a threshold issue, Copper Cane has designated the log as “Confidential – For Attorney’s Eyes Only” under the Agreed Protective Order. We cannot discern any basis for designating the log as Confidential, let alone as Attorney’s Eyes Only. We request that Copper Cane either explain the basis for the designation or withdraw it.

Also, the log lists several documents that are identified only as attachments to emails between Copper Cane and its counsel. As you know, a document does not become privileged merely because it is attached to a communication with counsel. There has to be an independent basis to claim privilege in the attachment to withhold it. Copper Cane’s log fails to provide sufficient information regarding these attachments—such as the document’s author, creation date, or subject matter—to enable us to evaluate Copper Cane’s claim. Accordingly, we request that Copper Cane provide additional detail regarding logged document numbers 2, 7, 9, 12, 13, 15, 16, 17, 19, 28, 30 (“CC_Privilege_” prefix and leading zeros omitted for sake of efficiency).

There are a few items on the logs that based on their descriptions appear to be communication between Copper Cane’s attorneys and the USPTO, which would not be privileged. See Document Numbers 24, 26, 28. Please confirm whether Copper Cane claims privilege over these documents and, if it does, the basis for the claim. Likewise, the item logged with Document Numbers 29-30 is identified as an May 29, 2019 email from Gina Maldonado to Jim Blumling. Nothing in the log indicates that either Ms. Maldonado or Mr. Blumling is an attorney. We therefore request clarification of the basis for claiming privilege.

We have also had the opportunity to review Copper Cane’s second document production, which consists of 33 documents totaling 86 pages. The production includes several Grape Purchase Agreements that have been both designated as “Confidential – For Attorney’s Eyes Only” and heavily redacted. See CC_WV-TTAB_0000519-536, 542-557. While we might be open to an argument that certain narrow categories of information set forth in the agreements are appropriate subjects for an AEO designation, we see no basis for any redactions. Among other things, we note that as recently as a few months ago Copper Cane was publicly filing its Grape Purchase Agreements with growers without any redaction or claim of confidentiality. See Attached Declaration of Gina Maldonado filed in Vehrs Vineyard, LLC v. Copper Cane, LLC, Case No. 6:18-cv-1752-MC (D. Or.). Accordingly, please provide unredacted copies of these Agreements and, if Copper Cane intends to maintain its AEO designation, specify what information in the agreements Copper Cane claims is highly confidential.

The production also included several email strings where a portion of the string has been redacted without explanation. See CC_WV-TTAB_0000556, 571, 574, 581, 584-85, 589. Please advise what the basis for these redactions are.

Finally, it is not clear from your email whether Copper Cane has produced all the documents it has agreed to produce. If additional documents are forthcoming, please advise when we can expect to receive them. Thank you.

Steven E. Klein | Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 | Portland, OR 97201 Tel: (503) 778-5283 | Fax: (503) 276-5783 Email: [email protected] | Website: www.dwt.com

From: [email protected] Sent: Monday, March 04, 2019 3:53 PM To: Klein, Steven Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Steve,

Attached please find Copper Cane’s supplemental responses to Willamette Valley Vineyards’ first set of interrogatories, as referenced in my letter of February 15, 2019. We are also today producing Copper Cane’s second volume of documents, and the associated privilege log.

These should address many of WVV’s concerns raised in your February 26, 2019 letter; however, we are preparing a more substantive response as well.

Regards, Dan

Dan Neustadt | Holland & Knight Phone 202.469.5163 | Fax 202.955.5564

From: Klein, Steven Sent: Tuesday, February 26, 2019 8:10 PM To: Neustadt, Dan C (WAS - X75163) Cc: Uhlenhake, Peter J (CHI - X65892) ; Donoghue, R. David (CHI - X66553) ; Jedlinski, Steven E (CHI - X65818) ; Jeffries, Stephen J (WAS - X72404) ; Petersen, Scott W (CHI - X66689) ; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Dear Dan:

Attached please find our letter in reply to your letter dated February 15, 2019.

Regards,

Steven E. Klein | Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 | Portland, OR 97201 Tel: (503) 778-5283 | Fax: (503) 276-5783 Email: [email protected] | Website: www.dwt.com

From: [email protected] Sent: Friday, February 15, 2019 3:33 PM To: Klein, Steven ; Dunwoody, Stuart ; Morrison, Sheila Fox ; PDX TM Enforcement Cc: [email protected]; [email protected]; [email protected]; [email protected]; [email protected]; [email protected] Subject: RE: WVV/Copper Cane: Opposition No. 91241586

Counsel,

I have attached a letter from Mr. Neustadt.

In addition, Copper Cane’s production volume one spanning CC_WV-TTAB_0000001 through CC_WV-TTAB_0000516 is available for download at iManage share, Holland & Knight’s secure file transfer site. Each person in the “to” line of this email should be able to access the production deliverable via the link below, noting that when prompted, you will each need to enter your email address as it appears on this email. Once your email has been confirmed a final download link will be sent to that same email address. I will provide the password for the enclosing zip container in a separate email cover. Access to the link below will expire March 1, 2019.

Download Link for Production Volume One: https://www.imanageshare.com/pd/80yJnyIXDQe

Please let me know if you have any issues accessing the production.

Best, -Pete

Peter Uhlenhake | Holland & Knight IP Litigation Paralegal Holland & Knight LLP 131 South Dearborn Street, 30th Floor | Chicago, IL 60603 Phone 312.715.5892 | Fax 312.578.6666 [email protected] | www.hklaw.com

From: Jedlinski, Steven E (CHI - X65818) Sent: Thursday, February 14, 2019 1:20 PM To: [email protected]; [email protected]; [email protected]; [email protected] Cc: Donoghue, R. David (CHI - X66553) ; Jeffries, Stephen J (WAS - X72404) ; Neustadt, Dan C (WAS - X75163) ; Petersen, Scott W (CHI - X66689) Subject: WVV/Copper Cane: Opposition No. 91241586

Steve,

Copper Cane plans to respond to your letter and begin its document production no later than early next week.

Going forward, we ask that you copy all HK team members on correspondence.

Best, Steve

NOTE: This e-mail is from a law firm, Holland & Knight LLP (“H&K”), and is intended solely for the use of the individual(s) to whom it is addressed. If you believe you received this e-mail in error, please notify the sender immediately, delete the e-mail from your computer and do not copy or disclose it to anyone else. If you are not an existing client of H&K, do not construe anything in this e-mail to make you a client unless it contains a specific statement to that effect and do not disclose anything to H&K in reply that you expect it to hold in confidence. If you properly received this e-mail as a client, co-counsel or retained expert of H&K, you should maintain its contents in confidence in order to preserve the attorney-client or work product privilege that may be available to protect confidentiality.

Exhibit 16

800 17th Street N.W., Suite 1100 | Washington, DC 20006 | T 202.955.3000 | F 202.955.5564 Holland & Knight LLP | www.hklaw.com

Daniel C. Neustadt +1 202-469-5163 [email protected]

March 11, 2019

Via E-mail ([email protected])

Steven E. Klein, Esq. Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 Portland, OR 97210-5610

Re: Willamette Valley Vineyards, Inc. v. Cooper Cane LLC Opp. No. 91241586

Dear Steve:

We write in further response to your letter dated February 26, 2019. We too remain hopeful that the parties can amicably resolve the instant disagreement. In lieu of quibbling back-and-forth regarding the general scope of discovery, and for purposes of efficiency, we turn directly to the individual requests and responses.1

RFP No. 6

WVV has asserted claims for (i) Priority and Likelihood of Confusion, under Section 2(d) of the Lanham Act; (ii) False Geographic Indication on Wine, under Section 2(a); and (iii) Geographically Deceptive Misdescriptiveness, under Section 2(e)(3). WVV has not asserted a Section 2(a) claim for deceptiveness generally. Accordingly, the only “materiality and consumer deception” pertinent to the current proceedings is that which concerns the geographic origin of the wine sold under or in connection with Applicant’s Mark.

In that regard, Copper Cane has now produced conclusive evidence regarding the origin of the wine. More specifically, 100% of the grapes from which the subject wine is vinted are grown within the boundaries of the Willamette Valley AVA. If WVV intends to continue to dispute this fact, please let us know the basis for such dispute. With respect to the remainder of the factors that WVV may maintain are pertinent to determining the geographic origin of wine with respect to a False Geographic Indication on Wine claim, or a Geographically Deceptive

1 Copper Cane expressly reserves all previously stated objections.

Misdescriptiveness claim, Copper Cane is willing to stipulate that none correlate to the Willamette Valley. Specifically, Copper Cane would consider an appropriate stipulation that the wine sold under or in connection with Applicant’s mark is not fermented, blended, bottled, vinted, cellared or fully finished within the boundaries of the Willamette Valley AVA.

Accordingly, Cooper Cane submits that the relevant facts to which the instant Request is directed are not in dispute. If, in view of the foregoing, WVV still insists that documents responsive to the instant request are necessary in this Board proceeding to establish materiality and consumer deception with respect to the geographic origin of the wine at issue, Copper Cane would be happy to consider and discuss the basis for such assertion.

RFP No. 7 and Interrogatory No. 6

The instant Request and Interrogatory concern Copper Cane’s decision to select or change the font color used for the word Willamette on any label for WILLAMETTER JOURNAL wine.

With respect to likelihood of confusion, Copper Cane submits that emphasizing the word “Willamette,” a word that appears on nearly every single label of the hundreds or thousands of bottles of wine that emanate from the Willamette Valley each year, would be an entirely ineffective way to illicit confusion or mistaken association with Willamette Valley Vineyards, a single winery.

With respect to the claims concerning geographic deceptiveness, Copper Cane maintains that such claims depend upon “materiality,” which is evidenced by consumer perception, not the subjective evaluation of an applicant’s intent.

The foregoing notwithstanding, in the spirit of cooperation and in a good faith effort to reach resolution, Copper Cane will conduct a reasonable search and produce any identified non- privileged, responsive documents concerning Copper Cane’s decision to select or change the font color used for the word “Willamette” on any wine bearing Applicant’s Mark. Copper Cane will also identify those documents by Bates number so you can consider if a supplement to Interrogatory No. 6 is even necessary.

RFP Nos. 10 and 39, and Interrogatories Nos. 10-14

As set forth above, WVV has not asserted a Section 2(a) claim for deceptiveness generally. Accordingly, even were Copper Cane to accept that “compliance with TTB and OLCC regulations is highly probative of the issue of deception,” and that “varietal and vintage claims are tied to appellation/AVA,” the fact would remain that the only issue of deception raised by WVV is deception as to the geographic origin of the applied-for goods. Accordingly, Copper Cane must still decline to remove the asserted limitation or to amend its response or answers. However, if WVV has additional authority for its position, Copper Cane would be happy to consider.

Steven E. Klein, Esq. March 11, 2019 Page 3

RFP No. 12

As stated above, Copper Cane has produced the necessary evidence concerning the provenance of the grapes from which the wine at issue is vinted, and is willing to consider an appropriate stipulation that the other factors that WVV maintains may be determinative of the geographic origin of wine do not correlate to the Willamette Valley AVA. The facts to which the instant request are directed are therefore not in dispute.

If, in view of the foregoing, WVV still insists that documents responsive to the instant request carry further relevance to any of its asserted claims, Copper Cane would be happy to consider and discuss the basis for such assertion.

RFP Nos. 13-15

Copper Cane reiterates that there does not appear to be any dispute concerning the facts that the parties respectively assert are relevant to the determination of geographic origin of the goods at issue. Moreover, without conceding the materiality of any purported deception as to where the wine at issue is fermented, blended, bottled, vinted, cellared or fully finished, Copper Cane at this juncture of the proceedings is willing to stipulate to the existence of a goods/place association between Willamette Valley and wine. Copper Cane submits that the absence of dispute as to geographic origin facts and the proposed goods/place stipulation obviates the need for the discovery to which the instant Requests may be directed.

As to materiality, the issue is whether the geographic location of where the wine is fermented, blended, bottled, vinted, cellared and/or fully finished – i.e., inside or outside of the boundaries of the Willamette Valley viticultural area – would be material to consumers’ decision to purchase wine. Given that the opposed application is based on an intent-to-use – and that the applied-for mark is not WILLAMETTE or WILLAMETTE VALLEY, but WILLAMETTER JOURNAL – Copper Cane maintains that its use of “Willamette” and “Willamette Valley,” or others’ use of those terms to label, advertise or promote Applicant’s wine, is irrelevant to the materiality determination.

RFP No. 21 and Interrogatory No. 17

Copper Cane submits that its conclusive evidence with respect to the provenance of the grapes from which Applicant’s wine is vinted, coupled with its proposed stipulation with respect to facts purportedly relevant to geographic origin, together obviate the need for any discovery to which the instant Request and Interrogatory may be reasonably directed.

RFP Nos. 35, 36 and 40

Similarly, the lack of dispute with respect to facts purportedly relevant to geographic origin, together with the proposed goods/place stipulation, would appear to obviate the need for any

Steven E. Klein, Esq. March 11, 2019 Page 4

discovery to which RFP No. 36 may be directed. With respect to RFP Nos. 35 and 40, to the extent proportionate and not unduly burdensome, Copper Cane agrees to conduct a reasonable search and produce all non-privileged documents responsive to the referenced requests, effectively striking the word “representative” from its initial responses thereto.

* * *

We remain confident in our respective abilities to resolve any remaining differences without resort to motion practice. To that end, if any concerns remain, we strongly urge you to contact us to arrange a teleconference.

Sincerely yours,

HOLLAND & KNIGHT LLP

s/ Daniel C. Neustadt

Daniel C. Neustadt

Exhibit 17

2/14/2019 Jim Bernau Responds

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(COMMENTARY

December 1, 2018 Jim Bernau Responds WVV founder counters Copper Cane's Joe Wagner

November's edition of OWP contained an UPCOMING EVENTS article regarding Copper Cane's Savor Cannon Beach Wine & Culinary Festival misrepresentation of Oregon AVAs. It Various Locations, Cannon Beach I Mar 7, 2019 -Mar 10, generated a lot of interest, as did OWP's 2019 article •Joe Wagner Responds: Copper Cane McMinnville Wine & Food Classic - Sip! owner explains his side of the story." In the Evergreen Aviation & Space Museum, McMinnville I Mar latter, Wagner made claims about his dispute 8, 2019-Mar 10, 2019 with the Oregon Winegrowers Association Week of Love and Rose Release Party and Willamette Valley Vineyards Remy Wines Tasting Room, Dayton I Jan 8, 2019 -Feb founder/CEO Jim Bernau. Here is Bernau's 15,2019 response: Valentine's Weekend Yamhill Valley Vineyards, McMinnville I Feb 14, 2019 - Why is the OWA {Oregon Winegrowers Feb 17, 2019 Association) challenging Elouan and "The Valentine's Weekend at J Wrigley Vineyards Willametter• marketing? J Wrigley Vineyards, Sheridan I Feb 14, 2019 -Feb 17, 2019 JB: The marketing is deceptive, violating federal and state law. For example, printed • previous 1 2 3 4 5 next • prominently on the Elouan case boxes is "Oregon Coast Pinet Noir," appearing to play Read the off prominent California Coast AVAs. No Oregon Wine Press Pinet Noir is grown on the Oregon Coast (or Jim Bernau page by page successfully can be). Three leading Oregon Photo by Andrea Johnson AVAs, the Willamette Valley, Umpqua Valley and Rogue Valley, are listed as if they are nested in this larger, fictitious AVA.

The branding on lhe Willametter Journal" and a number of Elouan labels, packaging and marketing materials illegally state or deceptively infer Oregon AVAs. This branding has created market confusion and is devaluing our distinctive AVAs. Consumers are being led to believe these wines are made in Oregon; they are not.

Federally approved American Viticultural Area designations are based upon unique geology, soils and climate, taking much research and a lengthy process to obtain from the federal agency, the TTB. They are especially so in Oregon, as their use or inference on labels and marketing materials requires strict adherence to the highest AVA and variety standards in the nation.

The wine must be made in Oregon with 100 percent Oregon grapes; only one AVA may be stated or implied with the grapes being a minimum 95 percent from the named AVA and at least 90 percent Pinet Noir (and other varieties) when those varieties are named.

Oregon winemakers have worked together for 35 years adhering to these standards and paying the highest tonnage tax in the country to support them.

On standards of AVA content:

JB: Joe Wagner's actions threaten the AVA system of unique geographic pedigrees federally adopted in 1978 with now 242 distinct AVAs in the United States.

He is illegally listing AVAs, allowing him to capitalize on the reputation they have achieved. Wagner now is advocating he be allowed to list percentages of grape content https://www.oregonwinepress.com/jim-bernau-responds 1/4 2/14/2019 Jim Bernau Responds from the named AVAs, but this approach would gut the unique, individual distinctiveness of each AVA.

Isn't this what he did with Meiomi?

JB: No, the Meiomi label relies on a provision in the federal code allowing up to three a d.lrecto.ry of: counties to be listed with percentages. As these California counties are well known, the • Wl11erles marketing worked. While the Oregon counties Marion, Josephine and Jackson can be •Lodging used to market Elouan, they are not well known. Joe Wagner is, instead, using something •Retail • Restaurants to which he is not entitled: Oregon AVA names based upon specific viticultural conditions •festivals and winemaking standards that are highly regarded by consumers. • lnidlllstrl,es Haven't other wine regions, including the Napa Valley, seen this kind of behavior?

JB: The Napa Valley Vintners Association has been very active in stopping deceptive advertising of wines capitalizing on the equity winegrowers have built over the years in that AVA. Richard Mendelson wrote "Appellation Napa Valley, Building and Protecting an American Treasure," detailing the many attempts to deceptively exploit the financial premium that has been created in the marketplace for the remarkable wines of the Napa Valley AVA. The Wine Origins Alliance, dedicated to protecting the integrity of wine region names, recently secured passage of U.S. Senate Resolution 649 recognizing the value of AVAs.

On Wagner's claim of better winemaking control in California:

JB: Wagner is reported to say he likes "to do everything under one roof," giving him the winemaking control he wants. That it is cold comfort regarding adherence to Oregon standards and doesn't square with his federal label (COLA) filings.

Elouan is made at Lange Twins, a contract 4-mil lion-case plant near Lodi, the same that makes Meiomi. That's an hour-and-a-half drive from Rutherford, where The Willametter is made. Wagner has used three custom crush plants (including Safe Harbor Partners and Laird Family Estate) and two Copper Cane facilities in different locations for his Oregon labeled wines. For example, there are two COLAS for the 2016 Elouan Pi not Noir at Laird Family Estate in Napa and Copper Cane in Rutherford in the same year.

While we know he isn't following the law on labeling and advertising, we hope the cellar staff of these numerous plants know the difference between Oregon and California standards and are following Oregon law - although his wines don't taste like Pinet Noir from the Willamette Valley.

For example, it is illegal in Oregon-labeled wine to use additives commonly used to make mass-produced Pinet Noir in California. Color and mouthfeel concentrates, called Mega Purple, Ultra Red, Purple 8000 and Red 8000, are made from the Teinturier grape Rubired, which is prohibited in Oregon wine since the grape is not grown here. Illegal use of even a small amount of these powerful additives greatly alters the distinctive, cool-climate Willamette Valley Pinet Noir colors, aromas and flavors.

The Oregon Congressional Delegation has requested the TTB conduct field product integrity audits of Copper Cane, asking "any offending products should be removed from the marketplace immediately.• The TTB is very thorough, reconciling grape contracts, grape sources and varietal composition, weigh tags, winery computer-recorded additives identified in the Varietal Composition or Ingredient fields, cellar work orders, ingredient POs and invoices, tank and barrel transfers, and finished packaged volumes compared to the label, packaging and advertising claims.

Aren't some of the industry's complaints about federally approved labels?

JB: The TTB label reviewers were misled. Wagner used the term "Vinted" instead of using the legally required term "Produced" on the label. He was actually producing the wine from grapes in California.

A label reference to an AVA is legal if the wine is "Produced" (fully finished) in the state of origin. By using the term "Vinted" on the label, the TTB was misled into believing the wine was made from grapes into wine in Oregon, then trucked as bulk wine to California for bottling. If Wagner had used the term "Produced" on the label, as he is required to do, the TTB would have caught it and rejected the label submissions. The term "Vinted" is allowed when the wine is subject to cellar treatment at the bottling address.

The TTB does not see the case box design or the sales materials but requires that those representations be accurate and consistent with their label approval. They depend upon consumer and trade monitoring, and act upon complaints, which is what they are doing now. What appears to be misdirection on the label application and then the use of Oregon AVAs on packaging and sales material with a retail bottle price under $20 has resulted in a commercially very successful result. Neilsen 12-month scan data shows that Elouan Pinet Noir has grown into the No. 1 selling Oregon branded Pinet Noir above https://www.oregonwinepress.com/jim-bernau-responds 2/4 2/14/2019 Jim Bernau Responds $17 a bottle in just a few years - a wine that is advertised originating from the Oregon Coast and now made near Lodi, California.

As for the reference of multiple AVAs on the approved '17 Elouan Pinet Noir, we believe the TTB label reviewer just missed it. Only one reference is allowed under federal law; 85 percent of the content must be from the referenced AVA with the wine made in the state of origin. The Oregon wine industry has asked the TTB to withdraw approval of this label to preserve the AVA system and truth in labeling - AVAs are not blending grapes, they are distinctive geographic designations representing the wine from that specific AVA.

What's the financial benefit to using Oregon AVAs?

JB: If Wagner was making and selling his wine legally, like other Oregon producers sourcing from various AVAs, he would only be able to list Oregon as the origin. But wines using an Oregon AVA, like the Willamette Valley, earn a higher price - costs are higher, too. One can make more money by using lower-cost grapes, mixing in some higher-cost Willamette Valley AVA fruit and deceptively marketing it by referencing the Willamette Valley.

Among the top 25 Oregon Pinet Noir brands reported by volume in annual Nielsen scans, the average retail bottle price is $26.04 for Willamette Valley AVA Pinet Noir, but $14.30 for an Oregon-appellated Pinet Noir. Elouan, with its Willamette Valley packaging, has put the AVA on discount at $7 per bottle less at the attractive under $20 retail price - helping explain its sales growth.

For every 100,000 cases of sales, Elouan Pinet Noir marketed with the Willamette Valley AVA can illegally achieve approximately $3 million more at FOB (freight on board) than the average Oregon-appellated wine.

What's this claim about Wagner not paying his Oregon taxes?

JB: Wineries licensed to make wine in Oregon must pay $25 per ton tax to support the wine quality and marketing efforts of the state and AVAs. As one must make the wine in Oregon to legally use the state's AVAs, Wagner is dodging the tax, but still using the AVAs. If he had made the wine in Oregon, an estimated $200,000 in taxes would have been properly paid.

Why are some Southern Oregon growers so unhappy with Copper Cane?

JB: Wagner, using a smoke taint clause, canceled all his Rogue Valley grower 2018 picks (130,000 case equivalent) only days before harvest, leaving growers no time to find alternative buyers.

Nielsen retail annual data ending in June shows Elouan scanned 45, 146 cases in national retail sales, an annual growth of 19,730 cases. For grocery store brands, Nielsen scan data can account for more than 70 percent of total sales. Copper Cane reported to the Oregon Liquor Control Commission purchasing 4,026 tons of Oregon grapes in 2017, equivalent to approximately 261,715 cases. Elouan 2015 Pinet Noir on the shelves in Oregon is behind a vintage and a major chain is discontinuing the 2016 rose and has been seen at Grocery Outlets for $3. 99 per bottle.

Doing the math, it looks like Copper Cane is severely over-inventoried and to be fair to the grower families, Wagner should at least pay the uninsured growers for their crop. We do support the insurance claims of those impacted by smoke taint as we learned of pockets of damaged fruit first hand. A blanket cancellation was unfair in those instances where quality was high, casting a pall on the Rogue Valley 2018 vintage, among the nicest grapes in decades.

A coalition of Oregon winemakers, using independent lab results, saved as much of the stranded, high quality crop as possible, paying the full contracted prices. The wine developing in the cellars is beautiful. We can't wait to release the Oregon Solidarity wine, first envisioned by Ed King of King Estate Winery, as a fundraiser for the devastated growers.

Why do you think Wagner has filed to cancel your trademarks?

JB: We believe he is trying to bully us. Shortly after I asked Wagner to stop misrepresenting Oregon AVAs and infringing on our trademarks, his lawyers filed to cancel them. A tactic like that might work with someone who doesn't have the money or the community support to defend themselves.

He has signaled he will drop the trademark challenge and the Willametter brand if we support Elouan with his use of the state's AVAs listing percentages of content. In his effort to profit from the equity others have built, this proposal would destroy the AVA system. We believe in the value of these geographic pedigrees and the reputational equity winemakers and growers have created in them. https://www.oregonwinepress.com/jim-bernau-responds 3/4 2/14/2019 Jim Bernau Responds There is some irony in his argument, that our winery brand should lose its trademark due to the AVA having the same name, given his illegal use of it.

We will oppose his trademark cancellation attempts for the same reason we will defend our AVAs, not just for ourselves, but the many other wineries with brands similar to or the same as AVAs. Just because an AVA is established, it doesn't mean the winery trademark is no longer valid. The "discovery" process in the trademark proceedings may reveal what is actually in the Wagner "Oregon" and "Willametter· wines.

The Oregon wine industry has grown through collaboration and respectful treatment of its colleagues. Oregon winemakers welcome newcomers with kindness, but ask for lawful and respectful conduct in return.

What are you asking the leaders of the nation's AVAs to do?

JB: We are asking they write the administrator of the TTB and ask that in the TTB label approval process, they enforce the law to preserve the integrity of American Viticultural Area destinations by al lowing only one AVA to be named, referenced or implied on the label, and only on wine legally qualified for such a reference.

Second, we are asking industry members to contact their state liquor control agencies asking that upon licensee renewal for Copper Cane to do business in their state, Copper Cane be required to demonstrate, under penalty of perjury, that they are in full compliance with all federal and state laws, including Oregon law when using those designations, regarding wine composition, labeling, packaging and advertising.

By acting in solidarity, the nation's AVAs can protect our unique geographic designations.

https://www.oregonwinepress.com/jim-bernau-responds 4/4

Exhibit 18

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

APPLICANT AND COUNTERCLAIM PETITIONER COPPER CANE’S OBJECTIONS AND RESPONSES TO OPPOSER AND COUNTERCLAIM DEFENDANT WILLAMETTE VALLEY VINEYARDS’ FIRST SET OF REQUESTS FOR PRODUCTION

The following responses and objections are made to the best of Applicant and Counterclaim

to do so except to the extent required by the Trademark Board Manual of Procedure or the Federal

Rules of Civil Procedure, or by Order of the Board.

By stating that it will provide information or produce documents in response to any particular request, Applicant makes no representation that any documents or information exists.

GENERAL OBJECTIONS

Applicant makes the following objections with respect to the Requests For Productions, and incorporates by reference said objections into each response as if set forth fully therein:

1. Applicant objects to all definitions, instructions and Requests For Production to the extent that they are overly broad, unduly burdensome, oppressive, and/or designed solely to harass

Applicant.

2. Applicant objects to all definitions, instructions and Requests For Production to the extent they seek information not in the possession, custody or control of Applicant.

3. Applicant objects to the Requests For Production to the extent that they seek information protected from disclosure by the attorney-client privilege, the work product doctrine, or that is otherwise not discoverable within the meaning of Fed. R. Civ. P. 26(b). Any disclosure

Applicant makes of such information is inadvertent and does not constitute a waiver of the applicable privilege or immunity as to such information, documents, and things.

4. Applicant objects to the Requests For Productions to the extent that they are not reasonably calculated to lead to the discovery of admissible evidence.

5. Applicant objects to the Instructions and Definitions to the extent they are inconsistent with or more burdensome than the Trademark Board Manual of Procedure, the Federal

Rules of Civil Procedure, or Orders of the Board.

6. Applicant objects to the definition of “Applicant,” “You,” “Your,” “Applicant’s

Mark,” and “Opposer’s Marks” as ambiguous or overbroad.

7. Applicant objects to all definitions, instructions and Requests For Productions as premature to the extent they seek or may rely upon expert opinions and/or testimony, which has not yet occurred.

8. Applicant objects to each and every Requests For Productions to the extent that it calls for a legal conclusion. Any responses by Applicant must not be construed as providing a legal conclusion regarding the meaning or application of any terms or phrases used in the Requests.

9. Applicant objects to all definitions, instructions and Requests to the extent that they seek to define terms and/or characterize the evidence in this matter. To the extent Applicant adopts any terms used in the definitions, instructions and Requests, such adoption is specifically limited to the objections and/or responses made pursuant thereto.

10. Nothing herein shall be construed as an admission by Applicant with respect to the admissibility of any characterization contained in these Requests. Applicant’s willingness to provide information in response to these Requests For Production is not a concession that the subject matter of the particular request is discoverable, relevant to this action, or admissible as evidence in any way.

11. Applicant objects to Requests calling for information or documents concerning

Protective Order.

RESPONSES TO REQUESTS FOR PRODUCTION

REQUEST NO. 1:

All Documents identified in response to Opposer’s First Set of Interrogatories, dated December 5, 2018.

Response to Request No. 1:

Subject to the general objections, and with the clarification that the effective First Set of

Interrogatories is dated December 12, 2018, Applicant will produce any non-privileged, responsive documents identified in its responses to Opposer’s First Set of Interrogatories, dated December 12,

2018.

REQUEST NO. 2:

All Documents concerning Applicant’s selection of Applicant’s Mark for use on or in connection with wine.

Response to Request No. 2:

In addition to its general objections, Applicant objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable.

Subject to the foregoing specific and general objections, Applicant states there do not exist any non-privileged documents responsive to Request No. 2.

REQUEST NO. 3:

Documents sufficient to show the circumstances of Applicant’s first use of Applicant’s Mark anywhere in the United States.

Response to Request No. 3:

In addition to its general objections, Applicant objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that priority is not in dispute in the instant proceeding. Applicant further objects to this Request as cumulative with or duplicative of Request No. 1.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents sufficient to evidence Applicant’s first use of Applicant’s Mark anywhere in the United States.

REQUEST NO. 4:

All Documents concerning United States Trademark Application Serial No. 87750448.

Response to Request No. 4:

In addition to its general objections, Applicant objects to this Request to the extent that it seeks information already available to Opposer, available from public federal and/or state agency records, or otherwise in the public domain and accessible to both parties. Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request Nos. 1 and 2.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents concerning United States Trademark Application Serial no.

87750448.

REQUEST NO. 5:

All Documents concerning any state trademark registrations sought or obtained by Applicant for Applicant’s Mark.

Response to Request No. 5:

Subject to the foregoing specific and general objections, Applicant states that no responsive documents responsive to Request No. 5 are known to exist.

REQUEST NO. 6:

All Documents concerning any governmental approvals sought, obtained by Applicant (including approvals refused or revoked) for any wine label bearing Applicant’s Mark.

Response to Request No. 6:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “All Documents.” Applicant objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that Documents concerning government approvals for wine labels

are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. §

1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant also objects to this Request to the extent that it seeks information already available to Opposer, available from public federal and/or state agency records, or otherwise in the public domain and accessible to both parties. Applicant further objects to this

Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request Nos. 1 and 2.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents concerning governmental approvals sought, obtained by

Applicant (including approvals refused or revoked) for wine labels bearing Applicant’s Mark and referring to the geographical origin of the grapes from which the labelled wine is derived.

REQUEST NO. 7:

All Documents concerning any decision to select or change the font color used for the word “Willamette” on any wine label bearing Applicant’s Mark.

Response to Request No. 7:

In addition to its general objections, Applicant objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, in that any decision to select or change the font color used for the word “Willamette” on any wine label bearing Applicant’s Mark are irrelevant to the determination of whether Applicant’s

Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15

U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would

result in a likelihood of confusion with Opposer’s Marks. See, e.g., TMEP §

1203.02(f)(ii)(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)).

REQUEST NO. 8:

All Documents concerning the geographic locations where any wine labelled with Applicant’s Mark was Fully Finished.

Response to Request No. 8:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “All Documents.” Applicant also objects to this

Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, in that the geographic locations where any wine labelled with

Applicant’s Mark was Fully Finished are irrelevant to the determination of whether Applicant’s

Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15

U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. See, e.g., TMEP § 1203.02(f)(ii)

(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)).

Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request

Nos. 1, 2 and 6.

Subject to the foregoing specific and general objections, Applicant reiterates that the wine labelled with Applicant’s Mark is Fully Finished in Rutherford, California.

REQUEST NO. 9:

All Documents concerning the locations where You have used any Finishing Techniques in the production of any wine labelled with Applicant’s Mark.

Response to Request No. 9:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “All Documents.” Applicant also objects to this

Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, in that the locations where Applicant has used Finishing

Techniques in the production of wine labelled with Applicant’s Mark are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Opposer’s Marks. See, e.g., TMEP § 1203.02(f)(ii)(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)). Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request Nos. 1, 2, 6 and 8.

REQUEST NO. 10:

All Documents concerning the varietal, source, and harvest year of the grapes used to produce any wine labelled with Applicant’s Mark.

Response to Request No. 10:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “All Documents.” Applicant also objects to this

Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that the varietal and harvest year of the grapes used

to produce wine labelled with Applicant’s Mark are irrelevant to the determination of whether

Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of

Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. See, e.g., TMEP

§ 1203.02(f)(ii)(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)). Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request Nos. 1, 2, and 6.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents concerning the source of the grapes used to produce wine labelled with Applicant’s Mark.

REQUEST NO. 11:

All Documents concerning the record trail for the information stated on the label of any wine labelled with Applicant’s Mark (from the beginning source material to removal for consumption or sale).

Response to Request No. 11:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “All Documents” and all aspects of the record trail.

Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that much of the record trail for the information stated on the label of wine labelled with Applicant’s Mark, save for that referring to the origin of the grapes, is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15

U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would

result in a likelihood of confusion with Opposer’s Marks. See, e.g., TMEP § 1203.02(f)(ii)

(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)).

Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request

Nos. 1, 2, 6, and 8-10.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents concerning the record trail for the information stated on the label of any wine labelled with Applicant’s Mark.

REQUEST NO. 12:

All Label Information Records for any wine labelled with Applicant’s Mark.

Response to Request No. 12:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “All Label Information Records.” Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that much of content contained in the requested Label Information Records, save for that concerning the origin of the grapes, is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents from the Label Information Records for wine labelled with

Applicant’s Mark.

REQUEST NO. 13:

All Documents concerning Your use of “Willamette” or “Willamette Valley” to label, advertise, or promote your wine.

Response to Request No. 13

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “All Documents” and refers to all of Applicant’s wine, not just wine labelled with Applicant’s Mark. Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that Applicant’s use of “Willamette” or “Willamette Valley” is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

REQUEST NO. 14:

All Documents concerning whether use of “Willamette” or “Willamette Valley” to label, advertise, or promote your wine would be false, misleading, or deceptive.

Response to Request No. 14:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “All Documents” and refers to all of Applicant’s wine, not just wine labelled with Applicant’s Mark. Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence in that the issue of whether use of “Willamette” or “Willamette Valley” (as opposed to

Applicant’s Mark, WILLAMETTER JOURNAL) to label, advertise, or promote Applicant’s wine would be false, misleading, or deceptive is irrelevant to the determination of whether

Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of

Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. See, e.g., TMEP

§ 1203.02(f)(ii)(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)). Applicant also objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege and/or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request Nos. 1, 2, 6, and 8-13.

REQUEST NO. 15:

All Documents concerning whether use of “Willamette” or “Willamette Valley” to label, advertise, or promote your wine would violate any Government Regulation pertaining to alcoholic beverages.

Response to Request No. 15:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “All Documents” and refers to all of Applicant’s

wine, not just wine labelled with Applicant’s Mark. Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence in that the issue of whether use of “Willamette” or “Willamette Valley” (as opposed to

Applicant’s Mark, WILLAMETTER JOURNAL) to label, advertise, or promote Applicant’s wine would violate any Government Regulation pertaining to alcoholic beverages is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Opposer’s Marks. See, e.g., TMEP § 1203.02(f)(ii)(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)). Applicant also objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege and/or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request Nos. 1, 2, 6, and 8-14.

REQUEST NO. 16:

All Documents concerning how consumers understand the designation “Willamette” or “Willamette Valley”.

Response to Request No. 16:

In addition to its general objections, Applicant objects to this Request as overly broad and unduly burdensome in that it seeks “All Documents” and is not limited to consumers’ understanding of “Willamette” or “Willamette Valley” with respect to wine. Applicant also objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant also objects to this Request on the ground that it seeks information already available to or in the possession, custody and/or

control of Opposer. Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request Nos. 1, 2, 6 and 10-15.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents concerning how consumers understand the designation

“Willamette” or “Willamette Valley”.

REQUEST NO. 17:

Documents sufficient to identify all designations used by Applicant to categorize or define the goods sold under or in connection with Applicant’s Mark.

Response to Request No. 17:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for identification of “all designations.” Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence. Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request Nos. 1, 2, 6, and 10-16.

REQUEST NO. 18:

Documents sufficient to show any plans for development or expansion of the goods or services that are sold under or in connection with Applicant’s Mark.

Response to Request No. 18:

In addition to its general objections, Applicant objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence in that any plans by Applicant for development or expansion of the goods or services that are sold under or in connection with Applicant’s Mark are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively

misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of

Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant further objects to this Request on the ground that it seeks proprietary and/or confidential information.

REQUEST NO. 19:

Documents sufficient to identify all channels of trade through which Applicant advertises or promotes wine labelled with Applicant’s Mark.

Response to Request No. 19:

In addition to its general objections, Applicant objects to this Request to the extent that it seeks proprietary and/or confidential information. Applicant further objects to this Request as cumulative with or duplicative of Request No. 1.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged responsive documents sufficient to identify channels of trade through which Applicant advertises or promotes wine labelled with Applicant’s Mark.

REQUEST NO. 20:

All Documents concerning any style guide or instructions for the use and presentation of Applicant’s Mark.

Response to Request No. 20:

In addition to its general objections, Applicant objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence. See, e.g., TMEP § 1203.02(f)(ii)(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)). Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant also objects to this Request to the

extent that it seeks proprietary and/or confidential information. Applicant further objects to this

Request as cumulative with or duplicative of Request No. 1.

Subject to the foregoing specific and general objections, Applicant states that no documents responsive to Request No. 20 are known to exist.

REQUEST NO. 21:

All Documents concerning how to describe or identify the geographic origin or appellation of wine labelled with Applicant’s Mark.

Response to Request No. 21:

In addition to its general objections, Applicant objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that the manner in which the geographic origin or appellation of wine labelled with Applicant’s Mark is described or identified is irrelevant to the determination of whether

Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of

Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents concerning how to identify the geographic origin of wine labelled with Applicant’s Mark.

REQUEST NO. 22:

Representative samples of all advertisement and promotional material displaying Applicant’s Mark.

Response to Request No. 22:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “Representative samples of all advertisement and promotional material.” Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that the manner in which Applicant’s Mark is displayed on “advertisement and promotional material” is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. §

1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. See, e.g., TMEP § 1203.02(f)(ii)(discussing the general irrelevance of labeling to the determination of deceptiveness under §2(a)). Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request No. 1.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents, namely, representative samples of advertisement and promotional material displaying Applicant’s Mark.

REQUEST NO. 23:

Representative samples of all tags, labels, signs, and packaging displaying Applicant’s Mark.

Response to Request No. 23:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “Representative samples of all tags, labels, signs, and packaging.” Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that the manner in which Applicant’s Mark is displayed on tags, labels, signs, and packaging is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents, namely, representative samples of tags, labels, signs, and packaging displaying Applicant’s Mark.

REQUEST NO. 24:

Documents sufficient to show all media coverage, in any medium, concerning Applicant’s Mark, whether or not authored by any official member of the press.

Response to Request No. 24:

In addition to its general objections, Applicant objects to this Request because it is overly broad and unduly burdensome in that it calls for “Documents sufficient to show all media coverage, in any medium, concerning Applicant’s Mark.” Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible

evidence to the extent that media coverage is irrelevant to the determination of whether Applicant’s

Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15

U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant further objects to this Request to the extent it is cumulative with or duplicative of Request No. 1.

Subject to the foregoing specific and general objections, Applicant will produce responsive documents representative of media coverage concerning Applicant’s Mark.

REQUEST NO. 25:

Documents sufficient to identify all persons used by Applicant to market Applicant’s Mark or wine labelled with Applicant’s Mark.

Response to Request No. 25:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome to the extent it seeks the identity of “all persons.” Applicant also objects on the ground that the request requires clarification, in that Applicant cannot determine

Opposer’s intended meaning in its request for “all persons used by Applicant to market Applicant’s

Mark or wine.” Applicant further objects to this Request as appearing to call for Documents that are not relevant and/or reasonably calculated to lead to the discovery of admissible evidence. Applicant further objects to this Request to the extent that it seeks proprietary and/or confidential information.

Subject to the foregoing specific and general objections: Applicant responds that it does not market Applicant’s Mark, and that therefore no documents exist regarding such activity. In other respects, Applicant refers Opposer to its Response to Interrogatory No. 16.

REQUEST NO. 26:

Documents sufficient to identify the target purchasers for wine sold under or in connection with Applicant’s Mark.

Response to Request No. 26:

In addition to its general objections, Applicant objects to this Request to the extent that it

seeks proprietary and/or confidential information. Applicant further objects to this Request as

cumulative with or duplicative of Request No. 1.

Subject to the foregoing specific and general objections, Applicant will produce non-

privileged, responsive documents sufficient to identify the class of consumers for wine sold under on

in connection with Applicant’s Mark.

REQUEST NO. 27:

All Documents concerning the meaning or commercial impression created by Applicant’s Mark when used in connection with wine.

Response to Request No. 27:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome in that it calls for “All Documents.” Applicant further objects to this Request as cumulative with or duplicative of Request No. 1.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents concerning the meaning or commercial impression created by

Applicant’s mark when used in connection with wine.

REQUEST NO. 28:

Documents sufficient to identify the retail sale price(s) of wine labelled with Applicant’s Mark.

Response to Request No. 28:

In addition to its general objections, Applicant objects to this Request as cumulative with or duplicative of Request No. 1.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents sufficient to identify the retail sale price of wine labelled with

Applicant’s Mark.

REQUEST NO. 29:

Documents sufficient to identify any designers used by Applicant with respect to the creation of any materials bearing Applicant’s Mark.

Response to Request No. 29:

In addition to its general objections, Applicant objects to this Request as calling for

Documents that are not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that a designer by dint of his or her participation in Applicant’s creation of materials bearing Applicant’s Mark is not likely to possess discoverable information, in that the design of materials bearing Applicant’s Mark are irrelevant to the determination of whether

Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of

Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant also objects to this Request on the ground that it is overly broad and unduly burdensome to the extent that

it seeks documents concerning the design of “any materials bearing Applicant’s Mark.” Applicant further objects to this Request as cumulative with or duplicative of Request Nos. 1 and 25.

REQUEST NO. 30:

All Documents concerning Applicant’s first knowledge of Opposer or Opposer’s Marks.

Response to Request No. 30:

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents concerning Applicant’s first knowledge of Opposer or Opposer’s

Marks.

REQUEST NO. 31:

All Documents concerning Your efforts to clear Applicant’s Mark for use or registration.

Response to Request No. 31:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome to the extent that it seeks “All Documents.” Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable.

Applicant further objects to this Request as cumulative with or duplicative of Request Nos. 1, 2, 4, 6,

16 and 27.

REQUEST NO. 32:

All Documents concerning any opinion or analysis of whether Applicant has the right to use or register Applicant’s Mark as a trademark for wine.

Response to Request No. 32:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome to the extent that it seeks “All Documents concerning any opinion.” Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request as cumulative with or duplicative of Request

Nos. 1, 2, 4, 6, 16, 27 and 31.

REQUEST NO. 33:

All Documents concerning any opinion or analysis of whether Applicant has right to use “Willamette” or “Willamette Valley” on or in connection with the sale of wine.

Response to Request No. 33:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome to the extent that it calls for “All Documents concerning any opinion” and refers to wine generally, without limitation. Applicant objects to this Request as calling for Documents that are not relevant and/or reasonably calculated to lead to the discovery of admissible evidence. Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request as cumulative with or duplicative of Request Nos. 1, 6, 7, 13-17, 20, 21, 30, 31 and 32.

REQUEST NO. 34:

All surveys concerning Applicant’s Mark and/or Opposer’s Marks.

Response to Request No. 34:

Subject to the foregoing specific and general objections, Applicant states that no responsive documents are known to exist.

REQUEST NO. 35:

All Documents concerning any observations, perceptions, impressions, or inquiries of any person as to whether wine labelled with Applicant’s Mark is produced, sponsored, or endorsed by, or in any manner associated or affiliated with, Opposer or any goods or services offered under or in connection with any of Opposer’s Marks.

Response to Request No. 35:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome as it calls for “All Documents” and refers to “any manner” of perceived association between the wine labelled with Applicant’s Mark and Opposer, or “any goods or services offered under or in connection with any of Opposer’s Marks.” Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request as cumulative with or duplicative of Request No. 1.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive, representative documents concerning observations, perceptions, impressions, or inquiries as to whether wine labelled with Applicant’s Mark is produced,

sponsored, or endorsed by, or associated or affiliated with, Opposer, or with goods or services offered under or in connection with Opposer’s Marks.

REQUEST NO. 36:

All Documents concerning any observations, perceptions, impressions, or inquiries of any person as to whether wine labelled with Applicant’s Mark is derived from grapes grown within the Boundaries of the Willamette Valley AVA or what percentage of wine labelled with Applicant’s Mark is derived from grapes grown within the Boundaries of the Willamette Valley AVA.

Response to Request No. 36:

In addition to its general objections, Applicant objects to this Request as calling for

Documents that are not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that observations, perceptions, and impressions as to whether wine labelled with Applicant’s Mark is derived from grapes grown with the Boundaries of the Willamette Valley

AVA, or what percentage, are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. §

1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request as cumulative with or duplicative of Request Nos. 1 and 35.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive, representative documents concerning inquiries as to whether wine labelled with Applicant’s Mark is derived from grapes grown with the Boundaries of the Willamette Valley

AVA or what percentage of wine labelled with Applicant’s Mark is derived from grapes grown within the Boundaries of the Willamette Valley AVA.

REQUEST NO. 37:

All Documents concerning any observations, perceptions, impressions, or inquiries of any person as to whether wine labelled with Applicant’s Mark is derived from grapes of the pinot noir variety or what percentage of the volume of the wine labelled with Applicant’s Mark is derived from grapes of the pinot noir variety.

Response to Request No. 37:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome as it calls for “All Documents.” Applicant also objects to this

Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence, in that observations, perceptions, impressions, or inquiries as to the percentage (including zero) of the volume of the wine labelled with Applicant’s Mark derived from grapes of the pinot noir variety is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. §

1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks.

REQUEST NO. 38:

All Documents concerning any observations, perceptions, impressions, or inquiries of any person as to whether the wine labelled with Applicant’s Mark is derived from grapes of the pinot noir variety grown within the Boundaries of the Willamette Valley AVA or what percentage of the volume of the wine labelled with Applicant’s Mark is derived from grapes of the pinot noir variety grown within the Boundaries of the Willamette Valley AVA.

Response to Request No. 38:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome as it calls for “All Documents.” Applicant also objects to this

Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that observations, perceptions, impressions, or inquiries as to the percentage (including zero) of the volume of the wine labelled with Applicant’s

Mark derived from grapes of the pinot noir variety is irrelevant to the determination of whether

Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15 U.S.C. § 1052(d), registration of

Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant further objects to this Request as cumulative with or duplicative of Request Nos. 1, 36 and 37.

REQUEST NO. 39:

All Documents concerning any observations, perceptions, impressions, or inquiries of any person as to whether wine labelled with Applicant’s Mark is pinot noir from the Willamette Valley.

Response to Request No. 39:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome as it calls for “All Documents.” Applicant also objects to this

Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that observations, perceptions, impressions, or inquiries as to whether wine labelled with Applicant’s Mark is pinot noir from the Willamette

Valley is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. §

1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether,

under 15 U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with Opposer’s Marks. Applicant further objects to this Request as cumulative with or duplicative of

Request Nos. 1 and 36-38.

REQUEST NO. 40:

All Documents concerning any instances of actual or possible confusion, mistake, deception, or association of any kind between Opposer, any of Opposer’s Marks or Opposer’s goods or services on the one hand, and Applicant, Applicant’s Mark or Applicant’s goods or services on the other hand.

Response to Request No. 40:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome as it calls for “All Documents” and refers to “possible confusion, mistake deception or association of any kind.” Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request as cumulative with or duplicative of Request Nos. 1 and 35.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive, representative documents concerning any instances of actual or possible confusion, mistake deception or association.

REQUEST NO. 41:

All Documents concerning any Communications in which any person inquired about, commented on or mentioned Opposer, Opposer’s Mark, or Opposer’s goods or services in any way.

Response to Request No. 41:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome as it calls for “All Documents concerning any

communications” containing a comment or mention with respect to Opposer, Opposer’s Marks, or its goods or services, “in any way.” Applicant therefore also objects to this Request on the ground that it is not reasonably calculated to lead to the discovery of admissible evidence. Applicant further objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant also objects to this Request as cumulative with or duplicate of Request No. 1, 35 and 40.

REQUEST NO. 42:

All Documents concerning any consumer complaints about any wine labelled with Applicant’s Mark.

Response to Request No. 42:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome as it calls for “All Documents” and also “any consumer complaints.” Applicant also objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that the subject matter of most if not all consumer complaints about wine labelled with Applicant’s Mark are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Opposer’s Marks. Applicant also objects to this Request as cumulative with or duplicate of Request

No. 1 and 35-40.

REQUEST NO. 43:

All Documents concerning any review of wine labelled with Applicant’s Mark that refers to the term “Willamette.”

Response to Request No. 43:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad and unduly burdensome as it calls for “All Documents.” Applicant also objects to this

Request to the extent it calls for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence. Applicant also objects to this Request on the ground that it seeks information already available to or in the possession, custody and/or control of Opposer.

Applicant also objects to this Request to the extent it is cumulative with or duplicative of Request

No. 1 and 35-42.

REQUEST NO. 44:

Documents sufficient to show the volume (in dollars and units) of annual sales of wine labelled with Applicant’s Mark for each of the last five years.

Response to Request No. 44:

In addition to its general objections, Applicant objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence in that the volume of annual sales of wine labelled with Applicant’s Mark is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

Opposer’s Marks. Applicant further objects to this Request on the ground that it seeks proprietary and/or confidential information. Applicant also objects to this Request to the extent it is cumulative with or duplicative of Request No. 1.

REQUEST NO. 45:

Documents sufficient to show, for each of the last five years, all costs and amounts expended by Applicant on an annual basis to promote, market, and advertise wine labelled with Applicant’s Mark.

Response to Request No. 45:

In addition to its general objections, Applicant objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence in that Applicant’s promotional, marketing and advertising expenditures are irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. § 1052(a), or geographically deceptively misdescriptive under 15 U.S.C. § 1052(e)(3), or whether, under 15

U.S.C. § 1052(d), registration of Applicant’s Mark would result in a likelihood of confusion with

REQUEST NO. 46:

All agreements between or among Applicant and any other person concerning Applicant’s Mark, or the manufacture, marketing, distribution, sale, or licensing of wine labelled with Applicant’s Mark.

Response to Request No. 46:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad because its seeks identification of “All agreements.” Applicant further objects to this

Request on the ground that it seeks proprietary and/or confidential information. Applicant objects to this Request as calling for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence to the extent that the manufacture of wine labelled with Applicant’s

Mark is irrelevant to the determination of whether Applicant’s Mark is deceptive under 15 U.S.C. §

Subject to the foregoing specific and general objections, there do not exist any documents responsive to Request No. 46.

REQUEST NO. 47:

Documents sufficient to show all third party marks of which Applicant is aware that resemble or are similar to Opposer’s Marks and that are used or registered in connection with wine.

Response to Request No. 47:

In addition to its general objections, Applicant objects to this Request on the ground that it is overly broad because its seeks identification of “all third party marks.” Applicant also objects to this

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents sufficient to show all third party marks of which Applicant is aware that resemble or are similar to Opposer’s Marks and that are used or registered in connection with wine.

REQUEST NO. 48:

Documents sufficient to show the genus or common or class name for each good or service that you have offered, sold, or provided under or in connection with Applicant’s Mark.

Response to Request No. 48:

In addition to its general objections, Applicant objects to this Request to the extent it calls for information that is not relevant and/or reasonably calculated to lead to the discovery of admissible evidence. Applicant also objects to this Request as cumulative with or duplicative of Request

No. 17.

REQUEST NO. 49:

All Documents that tend to show or disprove that Opposer’s Marks are generic.

Response to Request No. 49:

In addition to its general objections, Applicant objects to this Request as overly broad and unduly burdensome in that it seeks “All Documents.” Applicant also objects to this Request to the extent that it seeks information protected from disclosure by the attorney-client privilege or the work product doctrine, or that is otherwise not discoverable. Applicant further objects to this Request on the ground that it seeks information already available to or in the possession, custody and/or control of Opposer. Applicant also objects to this Request as cumulative with or duplicative of

Request Nos. 1, 13-17, 21, 31-33, 43, 47 and 48.

Subject to the foregoing specific and general objections, Applicant will produce non- privileged, responsive documents that reflect and/or evidence the genericness of Opposer’s

Marks.

COPPER CANE LLC

Date: January 11, 2019 By: /Stephen J. Jeffries/ Stephen J. Jeffries HOLLAND & KNIGHT LLP 800 17th Street N.W., Suite 1100 Washington, DC 20006 Phone: 202.419.2404 E-mail: [email protected]

Scott W. Petersen HOLLAND & KNIGHT LLP 131 S Dearborn St. Fl 30 Chicago, Il 60603-5517 Phone: 312.578.6689 E-mail: [email protected]

R. David Donoghue HOLLAND & KNIGHT LLP 131 S Dearborn St. Fl 30 Chicago, Il 60603-5517 Phone: 312.578.6553 E-mail: [email protected]

Daniel C. Neustadt HOLLAND & KNIGHT LLP 800 17th Street N.W., Suite 1100 Washington, DC 20006 Phone: 202.469.5163 E-mail: [email protected]

Counsel for Applicant and Counterclaim Petitioner

CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the forgoing APPLICANT AND COUNTERCLAIM PETITIONER COPPER CANE’S OBJECTIONS AND RESPONSES TO OPPOSER AND COUNTERCLAIM DEFENDANT WILLAMETTE VALLEY VINEYARDS’ FIRST SET OF REQUESTS FOR PRODUCTION has on this 11th day of January, 2019, been served on counsel for Opposer and Counterclaim Defendant by e-mail sent to: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected].

/Stephen J. Jeffries/ Stephen J. Jeffries

Exhibit 19

Suite 2400 1300 SW Fifth Avenue Portland, OR 97201-5610

Steven E. Klein 503.778.5283 tel 503.778.5299 fax

[email protected]

February 5, 2019

VIA E-MAIL - [email protected]

Stephen J. Jeffries Holland & Knight LLP 800 17th Street N.W., Suite 1100 Washington, DC 20006

Re: Willamette Valley Vineyards, Inc. v. Copper Cane LLC, Opp. No. 91241586

Dear Stephen:

I write in a good faith effort to meet and confer pursuant to Trademark Rule 2.120(f)(1) regarding certain deficiencies in Applicant’s responses and objections to Opposer’s written discovery.

A. Responses and Objections to Opposer’s First Set of Requests for Production

As a general matter, although Applicant served its written responses to Opposer’s First Set of Requests for Production (“RFPs”) close to four weeks ago indicating that Applicant would be producing documents responsive to at least some of the RFPs, Applicant has yet to produce a single responsive document. Please provide the documents Applicant has agreed to produce.

Applicant has also asserted objections to numerous RFPs that are not well taken. The RFPs in issue include but are not limited to the following:

RFP No. 2 seeks all documents concerning Applicant’s selection of Applicant’s Mark for use on or in connection with wine. Applicant’s response asserts privilege over all responsive documents, but Applicant provides no privilege log identifying the documents being withheld based on its claim, despite the fact that there appears no dispute that Applicant’s selection of the mark predates commencement of this proceeding (and is thus not subject to the parties’ agreement regarding the need to log post-filing documents). Please provide Applicant’s log so that we may review.

RFP No. 6 seeks all documents concerning any governmental approvals sought or obtained by Applicant (including approvals refused or revoked) for any wine label bearing Applicant’s Mark. Applicant’s response, however, purports to limit Opposer’s discovery to documents concerning government approvals for wine labels bearing Applicant’s Mark that “refer[] to the geographic origin of the grapes from which the 4811-9688-7430v.2 0044487-000075 Stephen J. Jeffries February 5, 2019 Page 2

labelled wine is derived.” This limitation on Opposer’s request is improper. Opposer alleges that Applicant’s use of the term “WILLAMETTER” on a label operates as a reference to the appellation and geographic origin of the recited goods (wine). Accordingly, any approval for a wine label bearing “WILLAMETTER JOURNAL” refers to the appellation or geographic origin of the goods and it is irrelevant whether the approval sought also includes a separate reference to the geographic origin of the grapes. Applicant must amend its response and produce all documents responsive to the request.

RFP No. 7 seeks all documents concerning the decision to select or change the font color used for the word “Willamette” on any wine label bearing Applicant’s Mark. Applicant objects on the basis of relevance, arguing that TMEP § 1203.02(f)(ii) demonstrates that labelling is irrelevant to the determination of deceptiveness. Applicant’s objection lacks merit. Section 1203.02(f)(ii) and the authorities cited therein stand only for the proposition that additional materials outside the wording of the mark that appears in advertising, on labels or in specimens, cannot add to or negate consumer perception of the mark since that determination is made on the basis of the mark as depicted in the drawing, not on materials that may or may not appear together with the mark. But the discovery sought by this request is directed at different issues: Whether the use of “Willamette[r]” in the mark is material to the purchasing decision and whether there is a good-place association between the terms and the goods. Materiality is at the heart of the inquiry into deceptiveness and Applicant has specifically denied Opposer’s allegations regarding materiality and the existence of a goods-place association. See Answer to Second Amend. Notice ¶¶ 17, 42, 44, 51. It is undisputed that Applicant at some point made the decision to change the color of “Willamette” on the label from black to red. See below. The decision to highlight and call out the term is directly relevant to whether Applicant considers “Willamette” material to the purchasing decision and/or believes a goods/place association exists.

Submitted COLA Label Market Label

Further, under In re E.I. DuPont DeNemours & Co., 476 F.2d 1357, 177 U.S.P.Q. 563 (CCPA 1973), the Board can take bad faith and intent to confuse into account when determining likelihood of confusion. Applicant’s decision to adopt a font color that 4811-9688-7430v.2 0044487-000075 Stephen J. Jeffries February 5, 2019 Page 3

specifically calls out a term that is identical to Opposer’s registered WILLAMETTE mark for wine is evidence that Applicant intended to confuse or deceive by its adoption of Applicant’s Mark. Accordingly, Applicant must amend its response to provide a full response, remove this limitation, and produce all documents responsive to the request.

RFP No. 8 seeks all documents concerning the geographic locations where any wine labeled with Applicant’s Mark was “Fully Finished.” After purporting to object on the baseless ground of lack of relevance and the unsupported ground that compliance would be unduly burdensome, Applicant responds only with the conclusory assertion that “Applicant reiterates that the wine labelled with Applicant’s Mark is Fully Finished in Rutherford, California.” This answer is non-responsive. It may be that Applicant’s evidence will ultimately show that the wine labelled with Applicant’s Mark is fully finished in Rutherford, California. However, it is our understanding that Applicant maintains wine making facilities in several locations and Applicant is entitled to discovery regarding the finishing location for purposes of confirming or refuting Applicant’s assertions and to determine whether the fruit sourcing, shipment, and other relevant production records produced by Applicant are, in fact, associated with the facility that produced the wine sold under Applicant’s label. Accordingly, Applicant must amend its response to provide a full response, remove this limitation, and produce all documents responsive to the request.

RFP No. 10 seeks all documents concerning the varietal, source and harvest year of the grapes used to produce any wine labelled with Applicant’s Mark. Applicant objects to the extent the request seeks varietal and harvest year information and purports to limit the response to documents concerning the source of the grapes used to produce Applicant’s wine. Opposer is entitled to discover varietal and harvest year information as well. Under federal and state regulations, varietal and vintage information may only be lawfully listed on labels for wine if the appellation of origin is indicated on the label and the corresponding content requirements for varietal and vintage claims are met. Where the appellation is an American Viticultural Area (“AVA”), not less than 90 percent of the wine must be derived from grapes of the listed variety, with the entire 90 percent grown in the labeled AVA. See 27 C.F.R. § 4.23(b); OAR 845-010-0915. Likewise, at least 95 percent of the wine must be derived from grapes harvested in the labeled calendar year. See 27 C.F.R. § 4.27(a). As Opposer alleges that consumers would perceive the term “Willametter” as a claim that the goods originate from the Willamette Valley AVA, Opposer is entitled to discovery on whether Applicant’s wine complies with the regulations applicable to wines labeled with the Willamette Valley AVA. Accordingly, Applicant must amend its response to provide a full response, remove this limitation, and produce all documents responsive to the request.

RFP No. 12 seeks all “Label Information Records” for any wine labelled with Applicant’s Mark. Applicant objects on grounds that only those records concerning the origin of the grapes is relevant and purports to limit its response to “responsive documents from the Label Information Records for wine labelled with Applicant’s 4811-9688-7430v.2 0044487-000075 Stephen J. Jeffries February 5, 2019 Page 4

Mark.” Applicant’s objection and limitation is not well founded. While information regarding the source of the grapes used to produce Applicant’s wine is certainly relevant, it is only one aspect of whether Applicant’s Mark misleads or is deceptive. Opposer alleges that Applicant’s Mark is deceptive because Applicant’s wine is not 95 percent or more derived from grapes grown within the Boundaries of the Willamette Valley AVA and because it has not been fully finished within Oregon. Second Amend. Notice of Opposition ¶¶ 20-21. To determine whether at least 95 percent of the volume of the wine labelled with Applicant’s Mark is derived from grapes grown within the Boundaries of the Willamette Valley AVA, Opposer needs the Label Information Records to determine what proportion of Applicant’s wine is derived from grapes, as well as the source of those grapes. Label Information Records are also necessary for Opposer to determine whether Applicant’s wine complies with the vintage and varietal requirements under federal and Oregon law for wine labelled with the Willamette Valley AVA. Accordingly, Applicant must amend its response to provide a full response, remove this limitation, and produce all documents responsive to the request.

RFP No. 13 seeks all documents concerning Applicant’s use of “Willamette” or “Willamette Valley” to label, advertise or promote Applicant’s wine. Applicant objects on grounds of relevance, over breadth and undue burden. Applicant’s objections are without merit. Applicant has specifically denied Opposer’s materiality and goods-place association allegations regarding the terms “Willamette” and “Willamette Valley.” See Answer to Second Amend. Notice ¶¶ 17, 42, 44, 51. Discovery regarding Applicant’s use of those terms to label, advertise, or promote its wine is relevant to issue of materiality and the existence of a goods-place association. Further, Applicant’s objections on over breadth and undue burden are unsupported. Accordingly, Applicant must provide a full response.

RFP No. 14 seeks all documents concerning whether use of “Willamette” or “Willamette Valley” to label, advertise or promote Applicant’s wine would be false, misleading, or deceptive. Applicant objects on grounds of relevance, over breadth and undue burden. Applicant’s objections lack basis. Opposer alleges that consumers will construe the use of WILLAMETTER in Applicant’s mark as a claim that the goods originate from the Willamette Valley AVA and will be misled or deceived thereby. Documents concerning whether use of “Willamette” or “Willamette Valley” to label, advertise or promote Applicant’s wine would be false, misleading or deceptive are thus directly and highly relevant to Opposer’s claim. They are also relevant to the issues of goods-place association and materiality. We also disagree with Applicant’s suggestion that the request is overly broad to the extent it seeks documents relating to any wine produced by Applicant and not just the wine labelled with Applicant’s Mark. For example, if Applicant has authored documents expressing its belief that using “Willamette Valley” on the label of a wine fully finished in California, those documents would be highly relevant to the issues in this dispute, regardless of whether the document pertained to the wine labelled with Applicant’s Mark. Accordingly, Applicant must amend its response and produce all non-privileged documents responsive to the request. 4811-9688-7430v.2 0044487-000075 Stephen J. Jeffries February 5, 2019 Page 5

RFP No. 15 seeks all documents concerning whether the use of “Willamette” or “Willamette Valley” to label, advertise or promote Applicant’s wine would violate any Government Regulation pertaining to alcoholic beverages. Applicant’s objections on grounds of relevance, over breadth and undue burden are without merit for the same reasons as detailed with regard to the objections to RFP No. 14. Accordingly, Applicant must amend its response and produce all non-privileged documents responsive to the request.

RFP No. 21 seeks all documents concerning how to describe or identify the geographic origin or appellation of wine labelled with Applicant’s Mark. Applicant purports to object on grounds of relevance, but then responds that it will produce non-privileged documents concerning how to identify the geographic origin of wine labelled with Applicant’s Mark. It is unclear why Applicant excluded the terms “describe” and “appellation” from its response. Please advise whether these omissions were intentional and, if yes, Applicant’s rationale for limiting the scope.

RFP Nos. 31 and 32 seek all documents concerning Applicant’s efforts to clear Applicant’s Mark for use or registration or concerning any opinion or analysis of whether Applicant has the right to use the mark as a trademark for wine. Applicant objects on grounds of over breadth, undue burden and privilege. Applicant provides no support for its claims of over breadth and undue burden. Further, Opposer is entitled to discovery of clearance or opinion related materials that are not protected by privilege, such as search reports and other documents that are not subject to the attorney client or work product privileges. Applicant is likewise required to provide an appropriate privilege log for documents that predate commencement of this proceeding. Accordingly, Applicant must amend its responses, produce all non-privileged documents responsive to the request, and provide a privilege log of withheld documents predating this dispute.

RFP Nos. 35, 36, and 40 seek documents concerning consumer perception, inquiries or confusion regarding the origin, content, source, sponsorship or approval of wine labelled with Applicant’s Mark. Applicant’s responses purport to limit the documents Applicant will product to documents that are “representative” of documents responsive to the requests. Opposer is entitled to discover all non-privileged, responsive documents. Applicant is not permitted to selectively produce responsive documents. Applicant must amend its responses to remove this limitation and produce all non-privileged documents responsive to the requests.

RFP No. 39 seeks documents concerning confusion regarding whether wine labelled with Applicant’s Mark is pinot noir from the Willamette Valley. Applicant purports to object on grounds of relevance. Applicant’s objection is baseless. Discovery regarding observations, perceptions, impressions or inquires about whether the wine labelled with Applicant’s Mark is pinot noir from the Willamette Valley is directly relevant to Opposer’s claims. See Second Amend. Notice ¶¶ 41-44. Accordingly, Applicant must amend its responses and produce all non-privileged documents responsive to the request. 4811-9688-7430v.2 0044487-000075 Stephen J. Jeffries February 5, 2019 Page 6

RFP No. 48 seeks documents sufficient to show the genus or common class name for each good or service that Applicant’ offers under or in connection with Applicant’s Mark. Applicant purports to object on grounds of relevance. This objection is baseless. Applicant has petitioned for cancellation of Opposer’s marks on grounds that the term “Willamette” is purportedly generic. Discovery regarding whether “Willamette,” “Willametter” or other terms are used as the genus or common class name for the wine offered under Applicant’s Mark is directly relevant to Applicant’s counterclaims. Accordingly, Applicant must amend its responses and produce all non-privileged documents responsive to the request.

B. Responses and Objections to Opposer’s First Set of Interrogatories

Opposer has also identified deficiencies in Applicant’s responses and objections to the following Interrogatories:

Interrogatory No. 6 seeks a detailed description of the facts and circumstances concerning any decision by Applicant to select or change the font color used for the word “Willamette” on any wine label bearing Applicant’s Mark. Applicant’s objection on the grounds of relevance lacks merit for the same reasons as set forth above in connection with RFP No. 7. Applicant must amend its answer to set forth a full response.

Interrogatory Nos. 10, 11, 12, 13, and 14 seek identification of the percentage of the volume of the wine labelled with Applicant’s Mark derived from grapes of the pinot noir variety grown within the Boundaries of the Willamette Valley AVA and the geographic source and harvest year of the grapes used to derive Applicant’s wine. Applicant’s objection on the grounds of relevance lacks merit for the same reasons as set forth above in connection with RFP Nos. 10 and 12. Applicant must amend its answer to set forth a full response.

Interrogatory No. 17 seeks identification of all communications regarding the geographic origin, appellation and/or AVA of wine labelled with Applicant’s Mark. Applicant purports to object on a laundry list of grounds, but then states that “subject to” those objections, Applicant “will produce any non-privileged, responsive communications concerning the geographic origin of wine labelled with Applicant’s Mark.” Applicant’s response is insufficient. First, to the extent Applicant purports to invoke the option under FRCP 33(d) to produce business records from which the responsive information can be discerned, Applicant still must specify the records being designated in sufficient detail to enable Opposer to locate and identify them. Second, Opposer is entitled to discover all non-privileged, responsive communications regardless of whether those communications have been reduced to writing. Thus, Applicant must separately identify any responsive communications not reflected in the business records identified by Applicant. Third, it appears Applicant purports to limit its response to communications regarding geographic origin while excluding communications regarding

4811-9688-7430v.2 0044487-000075 Stephen J. Jeffries February 5, 2019 Page 7

appellation and/or AVA. There is no basis for this limitation. Accordingly, Applicant must amend its answer to set forth a full response.

Interrogatory No. 20 seeks identification of all classes of customers that comprise the intended market for wine. Applicant objects on grounds of over breadth, undue burden, vagueness, and that the information is purportedly not within Applicant’s custody or control. These objections lack merit. “The classes of customers for a party’s involved goods . . . are discoverable.” TBMP § 414(3); see also Varian Assocs. v. Fairfield-Noble Corp., 188 U.S.P.Q. 581 (TTAB 1975). There is no support for the claim that Applicant lacks knowledge of this information or that information sought is overly broad or requires undue burden to compile. Accordingly, Applicant must amend its answer to set forth a full response.

Interrogatory No. 22 seeks the annual expenditures incurred by Applicant in connection with the promotion of Applicant’s mark. Applicant’s objections on grounds of relevance and confidentiality are baseless. “Annual sales and advertising figures, stated in round numbers, for a party’s involved goods or services sold under its involved mark are proper matters for discovery; if a responding party considers such information to be confidential, disclosure may be made under protective order.” TBMP § 414(18). Accordingly, Applicant must amend its answer to set forth a full response.

Interrogatory No. 25 seeks identification of all agreements concerning Applicant’s Mark. Although Applicant responds by stating that it has written agreements from which wine sold under Applicant’s Marks is vented, Applicant neither identifies those agreements nor, to the extent Applicant purports to rely on FRCP 33(d), specifies the agreements in sufficient detail to enable Opposer to locate and identify them. Applicant must amend its answer to set forth a full response.

Interrogatory No. 26 seeks a description of any communications between Applicant and Opposer. Applicant objects on grounds of over breadth and undue burden, as well as on grounds that the information is purportedly already in Opposer’s possession. We are unaware of any communications between Applicant and Opposer that do not pertain to the subject matter of this dispute and Applicant certainly hasn’t identified any categories of communication between the parties that would fall outside the scope of relevance. Nor have the communications between the parties been so numerous or complex that it would impose an undue burden for Applicant to respond. As for whether the information is already in Opposer’s possession, Opposer may not have a full record or recall of all communications and the records or recall of Applicant may differ from that of Opposer. Accordingly, Applicant must amend its answer to set forth a full response.

Interrogatory No. 34 seeks all facts and circumstances that support Applicant’s claim that 100% of the grapes used in the production of Applicant’s WILLAMETTER JOURNAL branded wine are grown in the Willamette Valley AVA. Applicant’s response, which merely restates its allegation without providing any of the underlying

4811-9688-7430v.2 0044487-000075 Stephen J. Jeffries February 5, 2019 Page 8

facts and circumstances that support its claim, is non-responsive and evasive. Applicant must amend its answer to set forth a full response.

Please confirm that Applicant will amend and supplement its discovery responses as outlined above to provide full and proper responses so that we can avoid having to seek the Board’s intervention on a motion to compel.

Very truly yours,

Davis Wright Tremaine LLP

Steven E. Klein cc: Scott W. Petersen

4811-9688-7430v.2 0044487-000075

Exhibit 20

OMB No. 1513-0020 FOR TTB USE ONLY DEPARTMENT OF THE TREASURY ALCOHOL AND TOBACCO TAX AND TRADE BUREAU TTB ID APPLICATION FOR AND 18316001000755 CERTIFICATION/EXEMPTION OF LABEL/BOTTLE APPROVAL 1. REP. ID. NO. (If any) CT OR (See Instructions and Paperwork Reduction Act Notice on Back) 88 01

PART I - APPLICATION

2. PLANT 3. SOURCE OF 8. NAME AND ADDRESS OF APPLICANT AS SHOWN ON PLANT REGISTRY/BASIC PRODUCT (Required) REGISTRY, BASIC PERMIT OR BREWER'S NOTICE. INCLUDE APPROVED DBA OR TRADENAME IF USED ON LABEL (Required) PERMIT/BREWER'S Domestic NO. (Required) BWN-CA-21400 Imported Copper Cane, COPPER CANE LLC 1960 SAINT HELENA HWY

4. SERIAL NUMBER 5. TYPE OF PRODUCT RUTHERFORD CA 94573 (Required) (Required) 181103 WINE THE WILLAMETTER (Used on label)

DISTILLED SPIRITS

MALT BEVERAGE

6. BRAND NAME (Required) 8a. MAILING ADDRESS, IF DIFFERENT THE WILLAMETTER JOURNAL

7. FANCIFUL NAME (If any)

9. FORMULA 10. GRAPE VARIETAL(S) (Wine 14. TYPE OF APPLICATION (Check applicable box(es)) Only) Pinot noir a. CERTIFICATE OF LABEL APPROVAL 11. WINE APPELLATION (If on label) b. CERTIFICATE OF EXEMPTION FROM LABEL APPROVAL OREGON "For sale in ______only" (Fill in State abbreviation.)

12. PHONE NUMBER 13. EMAIL ADDRESS DISTINCTIVE LIQUOR BOTTLE APPROVAL. TOTAL BOTTLE c. CAPACITY BEFORE CLOSURE ______(Fill in amount) (800) 400-1353 COLAS@CSA- COMPLIANCE.COM RESUBMISSION AFTER REJECTION d. TTB ID. NO. ______

15. SHOW ANY INFORMATION THAT IS BLOWN, BRANDED, OR EMBOSSED ON THE CONTAINER (e.g., net contents) ONLY IF IT DOES NOT APPEAR ON THE LABELS AFFIXED BELOW. ALSO, SHOW TRANSLATIONS OF FOREIGN LANGUAGE TEXT APPEARING ON LABELS.

PART II - APPLICANT'S CERTIFICATION

Under the penalties of perjury, I declare; that all statements appearing on this application are true and correct to the best of my knowledge and belief; and, that the representations on the labels attached to this form, including supplemental documents, truly and correctly represent the content of the containers to which these labels will be applied. I also certify that I have read, understood and complied with the conditions and instructions which are attached to an original TTB F 5100.31, Certificate/Exemption of Label/Bottle Approval.

16. DATE OF 17. SIGNATURE OF APPLICANT OR AUTHORIZED AGENT 18. PRINT NAME OF APPLICANT OR APPLICATION AUTHORIZED AGENT (Application was e-filed) 11/12/2018 JAY MCPHERSON

PART III - TTB CERTIFICATE This certificate is issued subject to applicable laws, regulations and conditions as set forth in the instructions portion of this form. 19. DATE ISSUED 20. AUTHORIZED SIGNATURE, ALCOHOL AND TOBACCO TAX AND TRADE BUREAU 11/20/2018

FOR TTB USE ONLY QUALIFICATIONS EXPIRATION DATE TTB has not reviewed this label for type size, characters per inch or contrasting background. The (If any) responsible industry member must continue to ensure that the mandatory information on the actual labels is displayed in the correct type size, number of characters per inch, and on a contrasting background in accordance with the TTB labeling regulations, 27 CFR parts 4, 5, 7, and 16, as applicable.

STATUS THE STATUS IS APPROVED.

CLASS/TYPE DESCRIPTION DESSERT /PORT/SHERRY/(COOKING) WINE AFFIX COMPLETE SET OF LABELS BELOW Image Type: Brand (front) or keg collar Actual Dimensions: 7.96 inches W X 3.62 inches H

Note: The image below has been reduced to fit the page. See actual dimensions above.

TTB F 5100.31 (06-2016) PREVIOUS EDITIONS ARE OBSOLETE

Exhibit 21

800 17th Street N.W., Suite 1100 | Washington, DC 20006 | T 202.955.3000 | F 202.955.5564 Holland & Knight LLP | www.hklaw.com

Daniel C. Neustadt +1 202-469-5163 [email protected]

February 15, 2019

Via E-mail ([email protected])

Steven E. Klein, Esq. Davis Wright Tremaine LLP 1300 SW Fifth Avenue, Suite 2400 Portland, OR 97210-5610

Re: Willamette Valley Vineyards, Inc. v. Cooper Cane LLC Opp. No. 91241586

Dear Steve:

We write in response to your letter dated February 5, 2019.

A. Copper Cane’s Document Production and Privilege Log

As you know, the parties just recently agreed on an ESI Order governing this proceeding. With that in place along with a protective order, Copper Cane is now able to commence its rolling document production. Concurrently with this letter, Copper Cane is serving its first document production.

Regarding a privilege log, please propose a mutually acceptable time for the parties to serve their respective logs.

B. Scope of discovery: generally

As you are aware, the Board is empowered to determine only the right to register trademarks. The scope of this proceeding is accordingly limited, to the registrability of the subject marks: Copper Cane’s WILLAMETTER JOURNAL (“Applicant’s Mark”), and Willamette Valley Vineyard’s WILLAMETTE and WILLAMETTE VALLEY VINEYARDS. Discovery, therefore, must be so constrained as well, to remain within the confines of the Board’s jurisdiction. We

Steven E. Klein, Esq. February 15, 2019 Page 2

expect that Willamette Valley Vineyards (“WVV”) agrees and will take a similar position with respect to its discovery responses.1

You may expect in turn that any effort by WVV to exploit the discovery process to mine Copper Cane for fuel for WVV’s publicity smear campaign will be staunchly resisted.2 We trust that the asserted deficiencies in your letter were not so intended.

C. Scope of discovery: geographic origin

Before addressing the specific issues identified in your letter, we think it most efficient to address the interplay of geographic origin and regulatory compliance, an issue repeatedly invoked in WVV’s discovery requests and in your letter.

Time and again, WVV’s aims its discovery requests, not at the discrete issue of geographic origin, but instead at Copper’s Canes compliance with labelling regulations promulgated by the Alcohol and Tobacco Tax and Trade Bureau and the Oregon Liquor Control Commission. The factors necessary to assess compliance with state and federal regulations governing label approval, though, are not coterminous with the factors relevant to geographic origin under the Lanham Act. The latter is the subject of this proceeding. See, e.g., Luxco, Inc. v. Consejo Regulador Del Tequila, A.C., 121 U.S.P.Q.2d 1477 (TTAB 2017) (“The question of registrability of a designation involved in a proceeding such as this [an opposition] must necessarily be determined not by the criteria enumerated in regulations governing the label approval functions of the Department of Agriculture, but rather by the specific provisions of the Trademark Act.”) (internal citations omitted).

We understand the core of WVV’s deceptiveness claims to be that WILLAMETTER JOURNAL is deceptive for wine because the wine sold under the mark is not made from a sufficient percentage of grapes grown in the Willamette Valley AVA and/or the wine is not finished in the Willamette Valley AVA; i.e., that WILLAMETTER JOURNAL wine is allegedly deceptive because, under TTB and OLCC regulations, the associated wine cannot bear the appellation “Willamette Valley.” The TTB and the OLCC, though, are not the arbiters of federal registrability; they lack any authority in that realm. Compliance with these administrative bodies is relevant only to the extent that the factors by which compliance is measured relate to the geographic origin of the wine sold under a mark and the materiality of any alleged deception embodied therein.

The test under the Lanham Act for whether wine originates from a particular geographic place is not whether its contents and finishing accord with AVA guidelines. All that Board precedent requires is a sufficient nexus; not 95% purity. Accordingly, discovery requests directed at compliance with federal and state regulations are relevant to WVV’s deceptiveness claims only

1 Copper Cane agreed to an extension for WVV to respond to discovery in this action until March 8, 2019. 2 Copper Cane reserves all rights to pursue any action related to associated statements by Jim Bernau or David Gomberg on behalf of WVV.

Steven E. Klein, Esq. February 15, 2019 Page 3

to the extent that the requests concern geographic origin or the materiality of any purported deception embodied in Copper Cane’s mark. Copper Cane stands on its objections to any production beyond that purview.

D. Specific Responses

RFP No. 2

Copper Cane is conducting a reasonable search and will produce any non-privileged responsive documents and note any withheld documents on a privilege log.

RFP No. 6

The documents sought under this request concern the approval of wine labels by regulatory authorities. This proceeding concerns the federal registrability of trademarks. Wine labels are beyond the boundary of the Board’s jurisdiction. Conversely, the governmental bodies charged with wine label approval lack any authority over federal trademark registration. Copper Cane therefore maintains its objections.

A point of clarification is due though with respect to the responsive documents that Copper Cane has agreed to produce. WVV appears to have construed Copper Cane’s response to be limited to documents concerning pertinent wine labels that refer to geographic origin. However, the phrase “referring to the geographical origin of the grapes” in Copper Cane’s response modifies the “documents” at issue, not the “labels.” Copper Cane will produce non-privileged responsive documents (1) concerning government approvals sought or obtained by Copper Cane for wine labels bearing Applicant’s Mark and (2) referring to the geographical origin of the grapes from which the labelled wine is derived. We trust that this clarification satisfies WVV’s concerns.

RFP No. 7 and Interrogatory No. 6

Whether Copper Cane considers “Willamette” material to the purchasing decision, or whether Copper Cane believes a good/place association exists is irrelevant. What matters are purchasers’ beliefs and perceptions, to which this request for production is not directed. See, e.g., In Re Castillo, No. 87117266, 2018 WL 2357290, at *4 (TTAB May 11, 2018) (“In determining ‘materiality,’ the Board looks to evidence regarding the probable reaction of purchasers to a particular geographic term when it is used in connection with the goods.”) (citing In re California Innovations, Inc., 329 F.3d 1334, 1341 (Fed. Cir. 2003)).

Separately, WVV’s suggestion that the requested discovery may be pertinent to its likelihood of confusion claim is not well taken. If WVV had information or belief to support an allegation of bad faith or intent, one would expect WVV to have asserted the allegation in one of the three iterations of its Notice of Opposition filed with the Board. The absence of any such allegation in any of WVV’s three notices of opposition reflects the disingenuousness of the argument now

Steven E. Klein, Esq. February 15, 2019 Page 4

raised, and further underscores the dangers of selecting an appellation of origin as a purported trademark.

RFP No. 8

The only potentially relevant discovery responsive to this request concerns whether the wine labeled under Applicant’s Mark is “Fully Finished” within the Willamette Valley. Copper Cane has conceded that the wine is Fully Finished outside of the Willamette Valley. The foregoing notwithstanding, Copper Cane will produce documents sufficient to show the geographic locations where any wine labeled with Applicant’s Mark was “Fully Finished.”

Relatedly, with respect to WVV’s request here and elsewhere for “all documents,” Copper Cane reminds WVV of the Board’s admonition that parties are to be “precise” in their discovery requests and should consider how to significantly limit the expense of any production.

RFP No. 10 and Interrogatories Nos. 10-14

As discussed above, whether a wine complies with the state and federal regulations pertaining to an American viticultural area is irrelevant to the Lanham Act determination of whether a wine “originates” from within the boundaries of that AVA, except to the extent that the regulatory factors pertain to geographic origin. The varietal and harvest year of Applicant’s wine do not pertain to geographic origin.

RFP No. 12

Consistent with the discussion above, Copper Cane maintains that the only relevant discovery responsive to this request concerns the geographic origin of the wine labelled with Applicant’s Mark. Accordingly, Copper Cane will search for and produce exemplary Label Information Records pertinent to that inquiry, namely, records concerning the origin of the grapes and where the wine labelled with Applicant’s Mark is vinted.

RFP Nos. 13 and 14

Copper Cane’s use of the designations “Willamette” and “Willamette Valley” to label, advertise and promote the wine labelled with Applicant’s Mark is irrelevant to the registrability of the mark WILLAMETTER JOURNAL. As stated above, materiality and goods-place association are determined by consumer’s beliefs and perceptions, not by Applicant’s.

RFP No. 15

As discussed above, government regulations pertaining to alcoholic beverages are irrelevant to the determination of trademark registrability, and therefore beyond the purview of this proceeding.

Steven E. Klein, Esq. February 15, 2019 Page 5

RFP No. 21

The appellation of wine labeled with Applicant’s Mark is governed by state and federal regulations which have no bearing on the registrability of WILLAMETTER JOURNAL. The appellation of wine labeled with Applicant’s Mark is therefore irrelevant to the resolution of the claims asserted in the instant proceeding. Copper Cane, however, in response to RFP No. 21, agrees to conduct a reasonable search and produce non-privileged, responsive documents concerning how to describe as well as identify the geographic origin of wine labelled with Applicant’s Mark.

RFP Nos. 31 and 32

We understand that there are no clearance- or opinion-related materials responsive to the referenced requests that are not protected by privilege. As mentioned above, Copper Cane will provide an appropriate privilege log for documents that predate commencement of this proceeding.

RFP Nos. 35, 36 and 40

WVV protests that its “entitled” to all non-privileged, responsive documents. The protest is not well taken.

“The right to discovery is not unlimited.” TBMP § 402.02. The TBMP expressly provides for production of a “representative sampling of the information sought” in discovery. Id. Copper Cane will produce non-privileged documents responsive to the referenced requests sufficient to meet WVV’s discovery needs.

RFP No. 39

Copper Cane maintains that the varietal of wine labelled with Applicant’s Mark is irrelevant to the determination of a mark’s registrability before the Board. To the extent that WVV still disagrees, Copper Cane respectfully requests a fuller explanation of its relevance.

RFP No. 48

Copper Cane will produce non-privileged, responsive documents that show the genus or common class name for the wine offered under or in connection with Applicant’s Mark.

Interrogatory No. 17

As explained repeatedly herein, the appellation and AVA of wine labelled with Applicant’s Mark are beyond the scope of this proceeding. Copper Cane will amend its answer to identify communications regarding the geographic origin of wine labelled with Applicant’s Mark.

Steven E. Klein, Esq. February 15, 2019 Page 6

Interrogatories No. 20, 22, and 34

Copper Cane will be providing supplemental responses to these interrogatories. After WVV has had a chance to review those responses, we would be happy to discuss any remaining concerns.

Interrogatory No. 26

Copper Cane may not have a full record or recall of all communications. Copper Cane will amend its answer and, to the extent its records and recollection allow, provide a supplemental response regarding any verbal communications between Copper Cane and WVV.

* * *

We trust that the foregoing responses, coupled with the commencement of Copper Cane’s document production and forthcoming supplemental responses, addresses WVV’s concerns. To the extent any concerns remain after you have had a chance to review the production(s) and supplemental responses, we would be happy to discuss them.

Sincerely yours,

HOLLAND & KNIGHT LLP

s/ Daniel C. Neustadt

Daniel C. Neustadt

Exhibit 22 Suite 2400 1300 SW Fifth Avenue Portland, OR 97201-5610

Steven E. Klein 503.778.5283 tel 503.778.5299 fax

[email protected]

February 26, 2019

Via Email [email protected]

Daniel C. Neustadt Holland & Knight LLP 800 17th Street N.W., Suite 1100 Washington, D.C. 20006

Re: Willamette Valley Vineyards, Inc. v. Copper Cane LLC, Opp. No. 91241586

Dear Mr. Neustadt:

We write to follow up on the discovery deficiencies raised in our letter dated February 5, 2019, and to reply to your response of February 15, 2019.

A. Copper Cane’s Document Production and Privilege Log.

We have reviewed Copper Cane’s initial document production, which consists of only 516 pages of news articles, website printouts and PTO records already in the public domain. Close to three months have passed since Copper Cane was served with Willamette Valley Vineyards, Inc.’s (“WVV”) discovery requests. There is no reason why Copper Cane would be unable to collect, review and produce a substantial portion of its own internal documents in that timeframe, particularly given its statements in news articles that it has already compiled and turned over many of the same documents to regulatory authorities. As for the suggestion that negotiations over the ESI Protocol somehow delayed Copper Cane’s ability to make a timely production, we note that the only substantive disagreement between the parties was the scope of email collection. That would not have delayed Copper Cane’s ability to produce non-email documents or email from key, known custodians. We expect Copper Cane to make its remaining production of documents without further delay.

We also do not agree to delay receipt of Copper Cane’s privilege log until a future date so as to allow the parties to exchange logs at the same time. There is no requirement or need for a simultaneous exchange. Further, Copper Cane opted to delay serving written discovery for close to two months after WVV served its requests. We are not holding up the prosecution of our case due to Copper Cane’s unilateral choice. Please timely provide Copper Cane’s privilege log without further delay.

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B. Scope of Discovery: Generally.

In the future, please spare us the histrionics about WVV pursuing discovery in support of a ‘publicity smear campaign.’ WVV claims are well founded and in good faith and the discovery WVV seeks is relevant and proper for the reasons set forth in our February 5, 2019 letter. If Copper Cane disagrees, it can stand on its objections and we will let the Board decide the matter.

C. Scope of Discovery: Geographic Origin.

WVV does not, as your letter suggests, contend that the issue of geographic deceptiveness turns on whether Copper Cane complies with TTB regulations or that the TTB is the arbiter of the issue of registrability. While not determinative, the TTB’s regulations and Copper Cane’s compliance therewith are highly pertinent to the issue of deceptiveness. The TTB’s statutory mandate includes prescribing regulations for the labelling of wine for purposes of prohibiting consumer deception and the use of misleading statements on labels and ensuring that consumers have adequate information as to the identity and quality of the labeled products. See Public Law 74-401, 49 Stat. 977 (Aug. 29, 1935). The regulations promulgated by the TTB include provisions pertaining to the establishment of AVAs and their use on wine labels and prohibit any reference, including in a brand name, which suggests an origin other than the wine’s true origin. These federal labeling rules assure consumers that when they buy an AVA-designated wine, they are buying a product wherein both the grape source and the place of production are closely tied to the named place. The same goes for OLCC regulations. Accordingly, evidence and discovery regarding compliance with TTB and OLCC regulations regarding terms that state or imply an AVA is highly relevant, particularly in light of the TTB’s recent determinations regarding Copper Cane’s ability to use THE WILLAMETTER and THE WILLAMETTER JOURNAL branding with wine.

While we certainly understand that Copper Cane intends to argue at trial that consumers are not familiar with regulatory requirements, that such requirements are not material, and that geographic origin only means the place where some of the contents of the product originates, these are all disputed issues. WVV is entitled to take discovery on its claims.

D. Specific Responses.

RFP No. 2. Thank you for confirming Copper Cane will produce non-privileged documents responsive to this request and log responsive documents over which it claims privilege.

RFP No. 6. WVV does not seek discovery regarding government approvals for labels bearing Applicant’s Mark because WVV contends that government bodies have authority over federal trademark registration. WVV seeks discovery because the regulations at issue and Copper

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Cane’s compliance are probative and relevant to the issues of materiality and consumer deception that arise in the context of the Lanham Act.

We also disagree that the “clarification” in your letter that Copper Cane has only agreed to produce responsive documents that concern government approvals sought or obtained by Copper Cane for wine labels bearing Applicant’s Mark and which also refer “to the geographical origin of the grapes from which the labelled wine is derived” resolves the matter. As a threshold matter, Copper Cane has applied to register its mark in connection with “wine,” not “grapes.” Thus the relevant issue is whether Copper Cane’s wine originates in the named place. While the origin of the grapes used to make the wine is one relevant factor, it is not the only relevant factor. WVV has also alleged that geographical origin is tied to the place where the labelled wine is produced. Further, it’s unclear what Copper Cane means when it purports to limit its production to documents “referring” to a particular topic. Accordingly, we reiterate our request that Copper Cane amend its response and produce all non-privileged documents responsive to the request as drafted.

RFP No. 7 and Interrogatory No. 6. Your letter’s reliance on In re Castillo, 2018 WL 2357290 (TTAB May 11, 2018) for the proposition that Copper Cane’s beliefs regarding materiality and the existence of a good/place association are not relevant is misplaced. In re Castillo was an appeal from an ex parte refusal by an Examining Attorney. Examining Attorneys have limited resources and no power to obtain discovery from an applicant. By default, they are limited to supporting their refusals through inferences drawn from publicly available evidence. See In re Loew's Theatres, Inc., 769 F.2d 764, 768 (Fed. Cir. 1985) (“The practicalities of the limited resources available to the PTO are routinely taken into account in reviewing its administrative action.”) Thus, while In re Castillo identifies some of the ways the PTO may show evidence of materiality and/or association in an ex parte proceedings, those methods are not the exclusive or even the most direct means of proof.

Copper Cane’s decision to call out or highlight “Willamette[r]” on its label is probative of materiality and consumer perception. Copper Cane presumably does not gratuitously call out information on its labels that is of no import to consumers. Copper Cane’s decision to emphasize “Willamette” in connection with a wine that is not produced in Oregon and/or does not meet the content requirements for a wine designated with the Willamette Valley AVA likewise is evidence that its use of “Willamette[r]” was intended to deceive. As you know, selection of a mark with an intent to deceive consumers gives rise to an inference that the mark is, in fact, deceptive (i.e., that the intended result will be achieved).

Copper Cane’s intent in adopting its mark is also relevant to likelihood of confusion. As for your letter’s attempt to suggest that WVV is somehow barred from pursuing discovery into this likelihood of confusion factor because WVV’s Notice of Opposition did not include an express

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allegation that Copper Cane adopted its mark in bad faith, I remind you that under the simplified notice pleading standard employed in Board proceedings, an Opposer need only set forth sufficient facts to state a claim and is under no obligation to specifically allege all facts it intends to rely on or include facts pertaining to each of the 13 Du Pont factors. As Copper Cane’s intent is relevant to WVV’s claim of likelihood of confusion, WVV is entitled to discovery.

RFP No. 8. Thank you for confirming the Copper Cane will produce documents concerning the geographic locations where any wine labeled with Applicant’s Mark was “Fully Finished.” As for Copper Cane’s suggestion that it should only be required to produce documents sufficient to show those locations, WVV reserves its right to seek additional documentation after review of Copper Cane’s production. On this point, we note that while Copper Cane has stated that its wine was “Fully Finished” in Rutherford, California, that assertion is contradicted by other evidence in the record, including its statements on its labels and to the TTB that the wine is merely “Vinted and Bottled” in Rutherford and Mr. Wagner’s public statements that Copper Cane’s is “farming and producing wine out of Oregon.”

RFP No. 10 and Interrogatories Nos. 10-14. We disagree that Copper Cane’s compliance with TTB and OLCC regulations regarding varietal and harvest year claims are irrelevant to the issue of deception. As noted above, although not determinative, compliance with TTB and OLCC regulations is highly probative of the issue of deception. Further, because varietal and vintage claims are tied to appellation/AVA, a mark that incorporates or implies an AVA also constitutes a representation regarding the nature and source of the varietal and vintage claims. Accordingly, we reiterate our request that Copper Cane amend its responses, produce all non- privileged documents responsive to the request and answer the interrogatories as drafted.

RFP No. 12. We disagree that the only relevant “Label Information Records” are those pertaining to the origin of the grapes and where the wine was vinted. Also relevant are, among other things, records regarding the proportion of wine that is derived from grapes, the varietal and harvest year of the grapes and the location where the wine was fermented, blended and treated. Further, there is no basis for the suggestion that Copper Cane need only produce “exemplary” records. As Mr. Wagner has publicly stated, Copper Cane has already collected and turned over relevant records to TTB and/or OLCC. See CC_WV-TTAB_0000019 (“Wagner said the winery turned over more than 3,000 pages of documents to the Oregon Liquor Control Commission last September to back up the authenticity of its Oregon wines.”) Accordingly, it should require no additional effort or burden for Copper Cane to produce those records in full.

RFP No. 13 and 14. As noted above, Copper Cane misconstrues the law regarding evidence of materiality and goods/place association. Evidence of Copper Cane’s use of “Willamette” and “Willamette Valley” to label, advertise or promote its wine is both highly probative and relevant to the question of consumer perception. Further, documents regarding whether use of these

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terms with Copper Cane’s wine would be false, misleading or deception is highly probative and relevant to the issue of deceptiveness and Copper Cane’s intent. Copper Cane must amend its responses and produce all non-privileged documents responsive to the requests.

RFP No. 15. We disagree that government regulations pertaining to alcoholic beverages are irrelevant to the determination of trademark registrability, as discussed above. Copper Cane must amend its response and produce all non-privileged documents responsive to the request.

RFP No. 21 and Interrogatory No. 17. Thank you for clarifying that Copper Cane will also expand its responses to RFP No. 21 and Interrogatory No. 17 to include documents and communications concerning how to “describe” the origin of its wine. However, given that federal and state regulations regarding appellation are both probative and relevant to the issue of registrability, we reiterate our request that Copper Cane amend its responses to include all documents and communications concerning appellation and/or AVA.

RFP No. 31 and 32. We look forward to timely receipt of Copper Cane’s privilege log.

RFP No. 35, 36, and 40. Copper Cane cannot rely on selective quotations from TBMP § 402.02 to limit its obligation to produce all documents responsive to these requests as drafted. As the text omitted from your letter’s selective quotation of Section 402.02 makes clear, production of a representative sampling of the information sought may be permitted by the Board “in those cases where complete compliance with a particular request for discovery would be unduly burdensome.” (Emphasis added). Copper Cane has presented no grounds to show, let alone carried its burden to establish, that responding to these requests in full would be unduly burdensome. Copper Cane must amend its responses and produce all non-privileged documents responsive to the requests.

RFP No. 39. Use of a mark that includes or implies an AVA is also a representation regarding the nature and source of varietal claims. Accordingly, varietal claims are relevant.

RFP No. 48. Thank you for confirming that Copper Cane will produce non-privileged, responsive documents that show the genus or common class name for the wine offered under or in connection with Applicant’s Mark.

Interrogatory Nos. 20, 22, 26 and 34. Thank you for confirming that Copper Cane will be supplanting its responses. We request that Copper Cane provided its supplemental responses by no later than Monday, March 4, 2019.

We continue to be hopeful that the parties can amicably resolve their disagreement regarding the appropriateness and sufficiency of Copper Cane’s responses to WVV’s written discovery.

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However, if have not received confirm by close of business on Monday, March 4, 2019, that Copper Cane will amend and supplement its responses as outlined above, WVV will have no option but to file a motion with the Board to compel full responses. Hopefully that will not be necessary.

Very truly yours,

Davis Wright Tremaine LLP

Steven E. Klein

4829-7051-0985v.1 0044487-000075 CERTIFICATE OF SERVICE

The undersigned hereby certifies that a true and correct copy of the forgoing DECLARATION OF DANIEL C. NEUSTADT has on this 1st day of May, 2019 been served on counsel for Opposer by e-mail sent to: [email protected], [email protected], [email protected], [email protected], [email protected], [email protected].

/Daniel C. Neustadt/ Daniel C. Neustadt