Estta971455 05/05/2019 in the United States Patent And

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Estta971455 05/05/2019 in the United States Patent And Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA971455 Filing date: 05/05/2019 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91230917 Party Defendant RLP Ventures, LLC Correspondence RLP VENTURES LLC Address PO BOX 2605 NEW YORK, NY 10108-2605 UNITED STATES [email protected] no phone number provided Submission Other Motions/Papers Filer's Name Ramona Prioleau Filer's email [email protected] Signature /Ramona Prioleau/ Date 05/05/2019 Attachments Opposition to Motion and Cross-Motions.pdf(239948 bytes ) Declaration Exhibits.pdf(5761623 bytes ) IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD MATCH GROUP, LLC (successor-in- interest to TINDER, INC.) Opposer, Opposition No. 91230917 v. RLP VENTURES, LLC Applicant. OPPOSITION TO MOTION FOR PROTECTIVE ORDER AND CROSS- MOTIONS TO COMPEL DEPOSITIONS AND EXTEND TESTIMONY PERIOD I. INTRODUCTION Applicant RLP Ventures, LLC (“Applicant”) hereby responds to and opposes the Motion for Protective Order of Match Group, LLC (“Opposer”). Applicant opposes the Motion for Protective Order on the grounds that Opposer: (i) lacks standing to make a motion on behalf of the individuals noticed for deposition; (ii) a motion for a protective order is an improper response to a notice of testimonial deposition under Trademark Trial and Appeal Board Manual of Procedure (“TBMP”) §§ 521 and 526; and (iii) the Opposer has provided misleading information in its motion for protective order. As a general matter, Applicant opposes the Motion for Protective Order also on the grounds that Applicant’s Notices of Deposition (i) are clear; (ii) seek clearly relevant information, that is tied to the specific grounds for opposition asserted by Opposer; and (iii) are not intended to harass the individuals noticed for deposition. Furthermore, Applicant’s notices, which set the place for deposition in New York, NY, were provided to the individuals noticed for deposition as early as March 20, 2019 and the location was not objected to by their legal representative at that time and Applicant offered to conduct the depositions “at such time and place as may be agreed to by the parties.” Therefore, Applicant’s notices of deposition are proper and the depositions should proceed as noticed. Separately, Applicant brings this cross-motion to compel the attendance each of the following Match Group, Inc. (“MGI”) individuals: Amanda Ginsberg; Gary Swidler; Alan Spoon; Pamela Seymon; and Thomas McInerney (each a Deponent and together, “Deponents”). at their depositions pursuant to the Federal Rules of Civil Procedure and the Trademark Rules of Practice and to extend the defendant’s testimonial deadline. This cross-motion is made necessary due to MGI’s refusal to produce Deponents for their deposition pursuant to the Notices of Deposition by Written Questions dated March 20, 2019 (See Prioleau Decl. Exs. B-1 – B-5). The testimonial cutoff in this matter is May 6, 2019 (the next succeeding secular or business day following May 4, 2019). To date, neither the individuals noticed for deposition nor their publicly-identified legal representative has responded to the Notices of Deposition. Applicant hereby moves the Trademark Trial and Appeal Board (“the Board”) for an order: 1. Compelling MGI to produce Deponents for their deposition at a place and time mutually agreed upon by Applicant and MGI and 2 2. Resetting the defendant’s testimonial cut-off for Applicant to a date 90 days after the issuance of the order (and resetting subsequent trial dates accordingly) (a) to allow Applicant the opportunity to attempt to seek the trial testimony of the individuals noticed by either deposition, declaration or affidavit or to secure the attendance of the witnesses by subpoena pursuant to 35 U.S.C. § 24 and Fed. R. Civ. P. 45. In its Motion for Protective Order, Opposer falsely alleges that “Applicant has no legitimate need for the testimony it seeks from Match Group’s “apex” personnel” and Opposer offers misleading factual statements about the nature of the Notices of Deposition. In doing so, Opposer obscures relevant facts related to Applicant’s attempts to resolve testimonial matters during the Applicant’s testimony period in accordance with TBMP § 703. As an initial matter, Opposer uses the undefined “Match Group” in its motion, obscuring the fact that the Opposer in this proceeding is Match Group, LLC and the individuals noticed for deposition relate to the non-party Match Group, Inc. Match Group, LLC and Match Group, Inc. are two distinctly formed legal entities. If by its obscure reference to “Match Group’s “apex” personnel,” Opposer is disclosing material, non-public information that each Deponent is personnel of the Opposer, then Opposer has arguably exposed MGI to violations of the Securities and Exchange Commission (“SEC”) regulations as well as the Nasdaq Listing Rules. Nevertheless, Applicant responds to Opposer’s Motion for Protective Order based on information in the Declaration of Ramona Prioleau attached as Attachment A (the “Prioleau Decl.”) that supports Applicant’s Opposition to Opposer’s Motion for Protective Order and Applicant’s Cross-Motions. II. RELEVANT BACKGROUND 3 Pre-Trial Disclosures: On March 20, 2019, Applicant served its Pre-Trial Disclosures, identifying Deponents as individuals likely to have knowledge of information that the Applicant may use to support its claims in the Opposition proceeding. Prioleau Decl. Ex. A. Notices of Testimonial Deposition: On March 20, 2019, Applicant served upon Jared Sine, General Counsel and Secretary of Match Group, Inc. and the legal representative of the Deponents (See Prioleau Decl. Exs. C and W, p. RLP 335, first paragraph), as well as Opposer its Notices of Deposition of each of the Deponents, which were noticed for April 4, 2019. See Prioleau Decl. Exs. B-1 – B-5 and D. On March 27, 2019, Opposer sent a letter to Applicant which objected to Applicant’s notices of deposition on the grounds that Applicant’s notices were per se improper, both in form and substance. They are also abusive, representing the quintessential example of an unjustified attempt to depose “apex witnesses” without cause noting that an undefined “Match Group” would not comply with the Notices. See Prioleau Decl. Ex. E. Opposer notably did not, however, object to New York, NY as a proper venue for the depositions. Id. Sine, the publicly-disclosed legal representative, did not respond to Applicant’s Notices of Deposition. On March 28, 2019, Applicant specifically responded to Opposer’s objections and offered to pursue other options to get the desired testimony. See Prioleau Decl. Ex. F. On April 1, 2019, Opposer offered Evan Bonnstetter as a witness in place of the individuals Applicant noticed for deposition. See Prioleau Decl. Ex. G. On April 2, 2019, Applicant asked Opposer to provide detail of: Mr. Bonstetter’s legal authorization to answer on behalf of the individuals that Applicant noticed for deposition and his knowledge of the subject matter of each of the deposition questions previously submitted. 4 See Prioleau Decl. Exs. B-1-B-5 and H. On April 4, 2019, Opposer emailed Applicant regarding Mr. Bonstetter’s background, but failed to provide detail of: Mr. Bonstetter’s legal authorization to answer on behalf of the individuals that Applicant noticed for deposition and his knowledge of the subject matter of each of the deposition questions previously submitted. See Prioleau Decl. Ex. I. On April 5, 2019, Applicant emailed Opposer and Jared Sine, the publicly-disclosed legal representative (See Prioleau Decl. Exhibit J), offering its willingness to pursue other options to get the desired testimony, including affidavits and declarations from the individuals noticed for deposition that provided testimony related to all of the deposition questions submitted on March 20, 2019 as well as requesting confirmation that: a. MGI will not comply with Applicant’s Notices of Deposition; b. Mr. Bonnstetter is not: i. Legally authorized to answer Applicant’s deposition questions on behalf of the individuals that Applicant noticed for deposition and ii. Knowledgeable of the subject matter of each of the deposition questions submitted on March 20, 2019. c. MGI will provide Applicant with the name of a deponent that is: i. Legally authorized to answer Applicant’s deposition questions on behalf of the individuals that Applicant noticed for deposition and ii. Knowledgeable of the subject matter of each of the deposition questions submitted on March 20, 2019. On April 8, 2019, Opposer emailed Applicant its contention that the Notices of Deposition were improper and again failed to offer a witness in place of the individuals Applicant noticed for deposition that was legally authorized to speak on said individuals behalf or knowledgeable of the subject matter of the deposition questions. See Prioleau Decl. Ex. K. Sine, the publicly-disclosed legal representative, did not respond to Applicant’s April 5, 2019 email. 5 On April 8, 2019, Applicant emailed Opposer’s Attorney requesting clarification of said attorney’s representation of MGI and the individuals noticed for deposition. See Prioleau Decl. Ex. L. On April 10, 2019, Opposer emailed Applicant stating that “these individuals are officers and employees of party-Opponent Match Group.” See Prioleau Decl. Ex. M. On April 12, 2019, Applicant emailed Opposer’s Attorney requesting the names of the officers and employees of party-opponent, Match Group, LLC that were among the individuals noticed for deposition as well as any update to the legal representative for the individuals noticed for deposition. See Prioleau Decl. Ex. N. On April 18, 2019, Applicant emailed Opposer explaining that the Notices of Deposition are proper; that the individuals noticed for deposition have unique, first-hand knowledge of the subject matter of each of the deposition questions submitted on March 20, 2019; and reiterated its willingness to pursue other options to get the desired testimony.
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