Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA979902 Filing date: 06/11/2019

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91243206 Party Defendant Andre Rozier Correspondence FRANCIS JOHN CIARAMELLA Address RICK RUZ PLLC 300 SEVILLA AVENUE CORAL GABLES, FL 33134 UNITED STATES [email protected] 305-921-9326

Submission Opposition/Response to Motion Filer's Name Francis John Ciaramella, Esquire Filer's email [email protected] Signature /Francis John Ciaramella/ Date 06/11/2019 Attachments Motion in Opposition to Opposer Rule 56d Motion for Necessary Discov- ery.pdf(174888 bytes ) Exhibit A.pdf(5949976 bytes ) Exhibit B.pdf(103293 bytes ) Exhibit C.pdf(156497 bytes )

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

______

HAVOC BOXING PROMOTIONS LLC,

Opposer,

v. Opposition No. 91243206

ANDRE ROZIER,

Applicant.

______

APPLICANT’S MOTION IN OPPOSITION TO OPPOSER’S RULE 56(d) MOTION FOR NECESSARY DISCOVERY

In response to Opposer’s Rule 56(d) Motion (“Motion”), filed by the Opposer on May 22,

2019, the Applicant hereby responds as follows. Here, the Opposer requests that the Board allow them to conduct additional discovery in order to respond fully to Applicant’s currently pending

Motion for Summary Judgment filed by the Applicant on May 2, 2019. However, here, the

Applicant has already produced substantial evidence to the Opposer documenting its prior use of a confusingly similar trademark, all before filing its Motion for Summary Judgment on May 2,

2019. Here, additional discovery under Rule 56(d) is not required in order to fully respond to

Applicant’s Motion for Summary Judgment.1

BACKGROUND

On June 5, 2017, Applicant filed Trademark Application Serial No. 87/475,869

(hereafter, “Applicant’s Mark”) for the mark HAVOC V ATHLETICS for use with “Clothing, namely, t-shirts, athletic uniforms, socks, hats, footwear, boxing trunks, coats, underwear, dress

1 It is also noted that the Opposer did file a Response to Applicant’s Motion for Summary Judgment alongside its Rule 56(d) Motion on May 22, 2019. Applicant filed a reply in support of its Motion for Summary Judgment on May 23, 2019. Page 1 of 17

shirts, suits, ties as clothing, shorts.” See 7 TTABVUE, Exhibit A, which consists of a copy of

Applicant’s Trademark Application Serial No. 87/475,869 for the mark HAVOC V

ATHLETICS; see also 7 TTABVUE, Declaration of Francis J. Ciaramella in Support of

Registrant’s Motion to Compel Discovery (“Ciaramella Decl.”) ¶2.

Applicant, ANDRE ROZIER, claims first use of the mark HAVOC in commerce at least as early as 1996. See 4 TTABVUE 3. See also 7 TTABVUE, Ciaramella Decl. ¶3.

On August 23, 2018, the Opposer filed the instant Opposition No. 91243206 to oppose registration of Applicant’s Mark based upon priority and a likelihood of confusion with trademarks for HAVOC BOXING and H HAVOC BOXING owned by Opposer (hereafter,

“Opposer’s Marks”). Please see 7 TTABVUE, Exhibit B, which consists of a copy of the Notice of Opposition. See also 7 TTABVUE, Ciaramella Decl. ¶4.

On September 20, 2018, Applicant filed its Answer and Counterclaim with the

Trademark Trial and Appeal Board, and counterclaimed that Opposer committed fraud on the

USPTO, and that Applicant’s HAVOC mark had priority of use in commerce. Please see 7

TTABVUE, Exhibit C, which consists of a copy of the Answer and Counterclaim to the Notice of Opposition. See also 7 TTABVUE, Ciaramella Decl. ¶5.

On January 30, 2019, the Opposer served Applicant with its First Requests for Production of Documents and First Set of Interrogatories, which were due no later than March 1, 2019.

Please see 7 TTABVUE, Exhibits D and E, which consist of copies of the requests for production and interrogatories, respectively. See also 7 TTABVUE, Ciaramella Decl. ¶6.

On March 1, 2019, counsel for the Applicant contacted Opposer to secure a one-week extension, making the deadline March 8, 2019. The same day, counsel for the Applicant memorialized this conversation in an email to counsel for the Opposer. Please see 7 TTABVUE,

Exhibit F, which consists of a copy of said email. See also 7 TTABVUE, Ciaramella Decl. ¶7.

Page 2 of 17

On March 8, 2019, Applicant timely served upon Opposer its responses to Opposer’s

First Request for Production (with documents) and First Set of Interrogatories. Please see 7

TTABVUE, Exhibits G and H, which consist of copies of Applicant’s responses to Opposer’s requests for production (with documents) and interrogatories, respectively. See also 7

TTABVUE, Ciaramella Decl. ¶8.

On March 28, 2019, Applicant served upon Opposer Applicant’s First Requests for

Admissions, Applicant’s First Set of Interrogatories, and Applicant’s First Requests for

Production of Documents (hereafter, “Applicant’s Discovery”), which were due no later than

April 29, 2019. Please see 7 TTABVUE, Exhibits I, J, and K, which consists of copies of

Applicant’s First Requests for Admission, Applicant’s First Set of Interrogatories, and

Applicant’s First Requests for Production; see also 7 TTABVUE, Ciaramella Decl. ¶9.

On Thursday, April 25, 2019, at approximately 6:05 pm EST, counsel for the Opposer contacted counsel for the Applicant via email and asked for a two-week extension to respond to

Applicant’s Discovery, and to extend the discovery period by 90 days. Please see 7 TTABVUE,

Exhibit L, which consists of a copy of Opposer’s counsel’s April 25, 2019 email; see also 7

TTABVUE, Ciaramella Decl. ¶10.

After conferring with the Applicant beforehand, counsel for the Applicant informed counsel for the Opposer during a phone call on Monday, April 29, 2019 (the deadline for answering) that he would not be able to consent to an extension of time to respond to Applicant’s

Discovery. Counsel for the Applicant made it clear to counsel for the Opposer during their phone call that after discussing the extension request with their client (i.e., the Applicant) that he would not be able to consent to an extension. During the same phone conversation, counsel for the Opposer asked whether Applicant had any further documents within its possession, custody, or control that were responsive to Opposer’s Discovery Requests. Counsel for the Applicant

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informed Opposer that he just received some additional supplementary material and was preparing it for Opposer’s counsel. See 7 TTABVUE, Ciaramella Decl. ¶11.

On May 1, 2019, Opposer served Applicant its second set of requests for production of documents, second set of interrogatories, and first requests for admission. Please see 7

TTABVUE, Exhibits M, N, and O, which consist of copies of Opposer’s First Requests for

Admission, Opposer’s Second Set of Interrogatories, and Opposer’s Second Requests for

Production, respectively; see also 7 TTABVUE, Ciaramella Decl. ¶12.

On May 1, 2019, Applicant served upon the Opposer additional documents as previously discussed with Opposer’s counsel on April 29, 2019. Applicant’s counsel also reminded

Opposer that its responses to Applicant’s Discovery were late. Please see 7 TTABVUE, Exhibit

P, which consists of a copy of Applicant’s additional produced documents. Please see 7

TTABVUE, Exhibit Q, which consists of a copy of Applicant’s counsel’s May 1, 2019 email specifying which documents were responsive to which of Opposer’s requests, and reminding

Opposer’s counsel that their responses to Applicant’s Discovery were still late (originally being due April 29, 2019); see also 7 TTABVUE, Ciaramella Decl. ¶13.

The same day, on May 1, 2019, Applicant’s counsel reminded Opposer’s counsel that

Applicant had never provided an extension to respond to Applicant’s Discovery. Please see 7

TTABVUE, Exhibit R, which consists of a copy of Applicant’s counsel’s May 1, 2019 email; see also 7 TTABVUE, Ciaramella Decl. ¶14.

Later, on May 1, 2019, Opposer’s counsel emailed Applicant’s counsel and stated that

Applicant should have informed Opposer that it was not going to provide Opposer with an extension earlier than the deadline they were due (i.e., on April 29, 2019 during counsels’ phone call), and that it would be excusable neglect on the part of the Opposer under Fed. R. Civ. P.

6(b)(1)(B) due to Applicant not providing an extension, despite the deadline being well-known in

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advance. Please see 7 TTABVUE, Exhibit S, which consists of a copy of Opposer’s counsel’s

May 1, 2019 email; see also 7 TTABVUE, Ciaramella Decl. ¶15.

Under TBMP § 407.03(a), Fed. R. Civ. P. 6(b)(1)(B), and Trademark Rule 2.120(a)(3)

“A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” Here, Opposer’s responses would have been due 30 days from March 28, 2019, on April 29, 2019. See 7 TTABVUE, Ciaramella Decl. ¶9.

Applicant timely responded to Opposer’s Discovery on March 8, 2019, and was prepared to do so a week earlier if Opposer was unwilling to provide an extension. On March 28, 2019,

Applicant served upon Opposer Applicant’s Discovery, serving upon Opposer: Applicant’s First

Requests for Admission, Applicant’s First Set of Interrogatories, Applicant’s First Requests for

Production. Please see 7 TTABVUE, Exhibits I, J, and K; see also 7 TTABVUE, Ciaramella

Decl. ¶9.

As of May 2, 2019, Opposer has not served upon Applicant any responses to either

Applicant’s First Requests for Admission, Applicant’s First Set of Interrogatories, or Applicant’s

First Requests for Production. See 7 TTABVUE, Ciaramella Decl. ¶16.

Accordingly, Opposer’s Responses to Applicant’s Discovery are late.

Thereafter, on May 3, 2019, Opposer lately served Applicant its Responses to

Applicant’s First Requests for Admissions and filed a Motion to Withdraw and Amend its

Admissions. See 11 TTABVUE, Exhibit A, which consists of a copy of Opposer’s lately served

Responses to Applicant’s First Requests for Admission.

Opposer did not serve Applicant with any responses to its First Set of Interrogatories or

First Requests for Production, which were originally due April 29, 2019.

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On May 30, 2019, Applicant served upon Opposer its Responses to Opposer’s Second

Request for Production (with documents), Second Set of Interrogatories, and First Requests for

Admission. See Exhibits A, B, and C attached hereto, which consist of the respective copy of each response.2

ARGUMENT

I. Applicant’s Motion for Summary Judgment Should Not be Denied Pursuant to

Fed. R. Civ. P. 56(d)

A party that believes it cannot effectively oppose a motion for summary judgment without first taking discovery, may file a request with the Board for time to take the needed discovery, which must be accompanied by an affidavit stating facts essential to justify its opposition to the motion. See Fed. R. Civ. P. 56(d); Opryland USA Inc. v. Great American

Music Show, Inc., 970 F.2d 847, 23 USPQ.2d 1471 (Fed. Cir. 1992); and Keebler Co. v. Murray

Bakery Products, 866 F.2d 1386, 9 USPQ.2d 1736 (Fed. Cir. 1989).

As a general rule, the Board is liberal in its treatment of requests for discovery in response to motions for summary judgment. However, when a request for discovery under Fed.

R. Civ. P. 56(d) is granted by the Board, the discovery allowed is limited to that which the nonmoving party must have in order to respond to the motion for summary judgment. See T.

Jeffrey Quinn, TIPS FROM THE TTAB: Discovery Safeguards in Motions for Summary

Judgment: No Fishing Allowed, 80 Trademark Rep. 413 (1990). Cf. Fleming Companies v.

Thriftway Inc., 21 USPQ.2d 1451 (TTAB 1991), aff’d, 26 USPQ.2d 1551 (S.D. Ohio 1992).j

Here, Opposer submitted the Declaration of Peter S. Sloane (the “Sloane Decl.”) which attempts to explain what particular discoverable information is sought by the Opposer, how it

2 It is noted that the deadline to respond to Opposer’s Second Requests for Production, Second Set of Interrogatories, and First Request for Production is stayed due to Applicant’s Motion for Summary Judgment. However, Applicant, in an effort to continue its discovery obligations and good faith participation, still timely served responses on May 30, 2019. Page 6 of 17

would preclude summary judgment, and why it has not previously been obtained. Specifically, the Sloane Decl. stated that the “Opposer is unable to allege facts necessary to fully oppose

Applicant’s MSJ, because discovery has been stayed since Applicant moved for summary judgment, preventing Opposer from receiving responses to discovery requests served on April

30, 2019.” See 10 TTABVUE, Sloane Decl. ¶13.

Moreover, the Opposer stated that they are “unable to allege facts necessary to fully oppose Applicant’s MSJ because the Board has yet to decide on Opposer’s Motion to Withdraw and Amend its Admissions. Id., Sloane Decl. ¶14. This is an improper basis upon which deny

Applicant’s Motion for Summary Judgment under Rule 56(d). Specifically, here, Opposer’s admissions are deemed admitted because the Opposer knowingly missed the Applicant’s April

29, 2019 deadline to serve responses. The fact that the Opposer’s admissions are deemed admitted automatically does not deprive the Opposer of any facts necessary to fully oppose

Applicant’s Motion for Summary Judgment. This is nothing more than a transparent attempt to avoid summary judgment based upon Opposer’s lately served admissions responses. A determination as to whether the Opposer is allowed to withdraw its admissions is made separately from a motion under rule 56(d), and the Opposer cannot rely upon its pending Motion to Withdraw its Admissions as a basis upon which to deny Applicant’s Motion for Summary

Judgment under Rule 56(d).

The Opposer also states that in order to fully support its opposition to Applicant’s Motion for Summary Judgment, the “Opposer requires discovery of information in Applicant’s possession, including any and all documents, information and testimony regarding, inter alia: (i) the specific nature and extent of the relationship between Applicant and Opposer from 2010 to present; (ii) Applicant’s use in commerce of its mark between 1996 to present; (iii) Applicant’s intention in filing a trademark application alleging an intent to use the mark; (iv) facts upon

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which Applicant bases its claim of superior rights to the marks at issue; and (iv) [sic] facts upon which Applicant bases its claim that Opposer has committed fraud on the USPTO.” Id., Sloane

Decl. ¶16.

Here, the Opposer’s Rule 56(d) Motion should be denied because the Opposer has not demonstrated that it is unable to oppose the motion for summary judgment without the discovery already in its possession. The Opposer’s reliance upon Opryland USA Inc. Great American

Music Show, Inc. is misplaced, as the current situation is highly distinguishable.

In Opryland USA Inc., the nonmoving party had not conducted any discovery, nor did it have any documents, testimony, or responses in order to respond to the moving party’s motion for summary judgment. See Opryland USA Inc. v. Great American Music Show, Inc., 970 F.2d

847, 23 USPQ.2d 1471 (Fed. Cir. 1992). Here, the Opposer seems to believe that its outstanding second requests for production, second set of interrogatories, and first requests for admission entitles it to relief on Section 56(d). This is improper for several reasons.

First, the Applicant has already responded to Opposer’s second requests for production, second set of interrogatories, and first requests for admission with supporting documentation (see

Exhibits A, B, and C attached hereto).

Second, even before submitting to Applicant its second requests for production, second set of interrogatories, and first requests for admission, the Applicant had already responded to

Opposer’s First Requests for Production and First Set of Interrogatories with supporting documentation before the filing of its Motion for Summary Judgment. Please see 7 TTABVUE,

Exhibits G and H, which consist of copies of Applicant’s responses to Opposer’s requests for production (with documents) and interrogatories, respectively; 7 TTABVUE, Ciaramella Decl.

¶8; 7 TTABVUE, Exhibit P, which consists of a copy of Applicant’s additional produced documents; 7 TTABVUE, Exhibit Q, which consists of a copy of Applicant’s counsel’s May 1,

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2019 email specifying which documents were responsive to which of Opposer’s requests, and reminding Opposer’s counsel that their responses to Applicant’s Discovery were still late

(originally being due April 29, 2019); and 7 TTABVUE, Ciaramella Decl. ¶13.

All of these responses, including admissions, declarations, interrogatory answers, and documents, provide to the Opposer numerous facts and information regarding the specific nature and extent of the relationship between Applicant and Opposer from 2010 to present, the

Applicant’s use in commerce of its mark between 1996 to present, the Applicant’s intention in filing a trademark application alleging an intent to use the mark, the facts upon which Applicant bases its claim of superior rights to the marks at issue; and the facts upon which Applicant bases its claim that Opposer has committed fraud on the USPTO.

Furthermore, Rule 56(e) states that a party opposing summary judgment “must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc.,

477 U.S. 242, 250 (1986). However, “[t]his requirement in turn is qualified by Rule 56(f)’s provision that summary judgment be refused where the nonmoving party has not had the opportunity to discover information that is essential to his opposition.” Id. Consequently, it follows that if the nonmoving party has had the opportunity to discovery information, which the

Opposer has had on two separate occasions here, a motion for summary judgment should not be denied under Rule 56(d).

Quite simply, the Opposer already has enough discovery within its possession to fully respond to Applicant’s Motion for Summary Judgment.

II. Opposer’s Admissions Are Deemed Admitted

Opposer knew that its responses to Applicant’s discovery requests were due April 29,

2019. An Admission is admitted by operation of law by virtue of Opposer’s failure to timely

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respond. See Fed. R. Civ. P. 36(a)(3). Even now, Opposer provides no explanation for its original delay, or for its delay in seeking to reverse the automatic effects of Rule 36.

Moreover, Opposer has also failed entirely to respond to Applicant’s First Set of

Interrogatories and First Requests for Production of Documents, both of which were concurrently served with Applicant’s First Requests for Admission. Notably, Opposer does not even address the fact that as of the filing of this responsive motion, it has still not responded in any manner to Applicant’s other requests.

Opposer’s course of conduct evidences a refusal to participate in discovery. As such, permitting Opposer to withdraw its admissions-by-operation-of-law would not “promote the presentation of the merits” of this action. See 8 TTABVUE, at 3-4. Instead, allowing Opposer to withdraw its admissions now would also serve to prejudice Applicant, who would be forced to prepare and file a motion to compel due to Opposer’s failure to respond to its other requests.

If Opposer is held to the automatic effects of Rule 36 – as it should be – then it is undisputed that this matter is ripe for resolution by an order of summary judgment in Applicant’s favor, pursuant to Sections 2(d) of the Lanham Act, as well as fraud upon the USPTO.

III. Opposer’s Claim of First Use Date is Not Supported by Any Evidence of

Record

Opposer has made overtures in its Motion that due to the mere registration of its marks

(Registration Nos. 4,457,464 and 4,457,499) that its priority is presumed. See Motion at 7. The

Opposer, therefore, argues that its registrations have been used since 1994 (1996 in commerce), and that the Applicant only possess rights to a trademark that was filed based upon intent to use

(Applicant’s Serial No. 87/475,869). Id .at 7-8.

A presumption of validity attaches to a service mark registration, and the party seeking cancelation must rebut this presumption by a preponderance of the evidence. West Fla.

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Seafood Inc. v. Jet Rests. Inc., 31 F.3d 1122, 31 USPQ.2d 1660, 1662 (Fed. Cir. 1994) (emphasis added). Section 14(1) of the Trademark Act, 15 USC § 1064(1), provides that a cancellation action may be brought on the ground of likelihood of confusion before a registration is five years old. Here, the Applicant counterclaimed priority and a likelihood of confusion before the

Registrant’s marks turned five years old.

Here, the Opposer claims use in commerce as early as 1996. However, the Opposer has provided no evidence to support this claim, and has produced no documents to the Applicant, and has produced no responses to Applicant’s interrogatories. In contrast, the Applicant has supplied to the Opposer a substantial amount of documentation and answers to its two sets of interrogatories demonstrating that Applicant has used the mark as early as 1996. Not only has the Opposer not provided any evidence as far back as 1996, it has not produced any evidence showing use as far back as 2010 (when the Opposer through its CEO first met the Applicant).

Opposer has produced no evidence whatsoever to the contrary and has failed to participate in any meaningful way in discovery. The Applicant, in contrast, has timely responded to Opposer’s first and second requests for production, Opposer’s first and second sets of interrogatories, and

Opposer’s first request for production.

Consequently, a preponderance of the evidence currently of record demonstrates that the

Applicant is in fact the prior user.

IV. There is No Material Dispute of Fact

To establish a likelihood of confusion on a motion for summary judgment, the Applicant must establish that there is no genuine dispute of material fact that (1) Opposer’s use of the marks HAVOC BOXING and H HAVOC BOXING is likely to cause confusion among consumers as to the sponsorship, affiliation or connection of goods offered under the parties’ respective marks; and (2) that Applicant has priority of use. See, e.g., Lipton Indus., Inc. v.

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Ralston Purina Co., 213 USPQ 185, 187 (CCPA 1982); Hornblower & Weeks, Inc., 60 USPQ.2d

1733, 1735 (TTAB 2001).

Federal Rule of Civil Procedure 36(a)(3) provides that requests for admission are deemed admitted as a matter of law if the receiving party failed to respond within the required time period.

“A matter is admitted unless, within 30 days after being served, the party to whom the request is directed serves on the requesting party a written answer or objection addressed to the matter and signed by the party or its attorney.” 37 CFR § 2.120(a)(3).

Here, Opposer has submitted no timely esponses to Applicant’s Discovery (including

Applicant’s Requests for Admission). If a party on which requests for admission have been served fails to timely respond thereto, the requests will stand admitted by operation of law.

Fram Trak Industries v. Wiretracks LLC, 77 USPQ2d 2000, 2005 (TTAB 2006) (requests for admissions deemed admitted by respondent’s failure to respond to petitioner’s requests for admissions); Pinnochio’s Pizza Inc. v. Sandra Inc., 11 USPQ2d 1227, 1228 n.5 (TTAB 1989)

(requests for admissions deemed admitted by respondent’s failure to respond to petitioner’s requests for admissions).

To avoid the requests being admitted by operation of law, the party must show that its failure to timely respond was the result of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B); Giersch v. Scripps Networks Inc., 85 USPQ2d 1306, 1307 (TTAB 2007) (counsel’s mistaken belief that opposing counsel would grant an extension for responding to admissions did not constitute excusable neglect to reopen time to respond under Fed. R. Civ. P. 6(b)) (emphasis added).

Accordingly, because Opposer has failed to provide any responses to Applicant’s

Discovery, Applicant’s First Requests for Admissions are conclusively admitted and established.

Hence, there is no dispute of material fact. See 7 TTABVUE.

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a. Opposer Has Not Demonstrated Excusable Neglect

Insofar as excusable neglect is concerned, it is without merit. Id., Exhibit S. To avoid the requests being admitted by operation of law, the party must show that its failure to timely respond was the result of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B); Giersch v. Scripps

Networks Inc., 85 USPQ2d 1306, 1307 (TTAB 2007) (counsel’s mistaken belief that opposing counsel would grant an extension for responding to admissions did not constitute excusable neglect to reopen time to respond under Fed. R. Civ. P. 6(b)) (emphasis added).

Here, the requisite showing to be made by the moving party (i.e., Opposer) is that of excusable neglect. Fed. R. Civ. P. 6(b)(1)(B); TBMP §§ 509.01(b)(1). In determining whether there has been excusable neglect, four factors are considered: (1) the danger of prejudice to the non-moving party; (2) the length of the delay and its potential impact on judicial proceedings; (3) the reason for delay, including whether it was within the reasonable control of the moving party; and (4) whether the moving party has acted in good faith. See Pioneer Investment Services

Company v. Brunswick Associates Limited Partnership, 507 U.S. 380, 395 (1993); Vital

Pharmaceuticals, Inc. v. Conrad J. Kronholm, Jr., 99 USPQ.2d 1708 (TTAB July 22, 2011).

i. There is a Danger of Prejudice to the Non-Moving Party

In the current proceeding, there is measurable prejudice that would be incurred by the

Applicant. As stated above, the Opposer has completely failed to respond to either Applicant’s

First Set of Interrogatories and First Requests for Production. Accordingly, the Applicant is otherwise prejudiced as it is left with no other recourse but to file a motion to compel, and again, waste the Board’s time and resources in forcing the Opposer to respond to the Applicant’s other discovery requests.

Thus, this factor weighs in favor of granting Applicant’s Motion.

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ii. The Reason for Delay Was Within the Control of the Opposer

Here, the Opposer has completely failed to explain why it did not timely serve its responses to Applicant’s First Requests for Admission, or why it still has not responded to either

Applicant’s First Set of Interrogatories or Applicant’s First Requests for Production. Moreover, the Opposer has not demonstrated any extraordinary circumstances as to why it did not timely answer Applicant’s First Requests for Admission. As such, the delay was wholly within the control of the Opposer.

In subsequent applications of the Pioneer test, several courts and the Board have stated that the reason for the delay and whether it was within the reasonable control of the movant, is generally considered the most important factor in a particular case. See Pumpkin, Ltd. v. Seed

Corps, 43 USPQ.2d 1582 (TTAB 1997).

Thus, this factor weighs in favor of granting Applicant’s Motion.

V. Applicant’s Fraud Claims are Supported by the Record

In its original counterclaim against Opposer, Applicant asserted that the Opposer committed fraud upon the USPTO, namely, that Opposer knew of Applicant and his HAVOC mark at least as early as 2010, roughly two years prior to its filing of Trademark Serial Nos.

85/740,903 and 85/747,962. See 4 TTABVUE at 4-7.

To prove fraud, the Applicant must establish that there is no genuine dispute of material fact that the Opposer knowingly made false, material representations with the intent to deceive the USPTO into issuing registrations to which it knew it was not entitled. In re Bose Corp., 580

F.3d 1240 (Fed. Cir. 2009).

When reviewing the previously produced evidence alongside the discovery responses the

Opposer now makes, it is not unreasonable to conclude that Opposer knew of both Applicant and his HAVOC mark at the time it filed Trademark Serial Nos. 85/740,903 and 85/747,962. In

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other words, the Opposer, through its CEO Robert Diaz, knowingly lied when he stated that “he believes the applicant (here, the Opposer) to be the owner of the trademark/service mark sought to be registered…[and] to the best of his knowledge and belief no other person, firm, corporation, or association has the right to use the mark in commerce, either in identical form thereof or in such near resemblance thereto as to be likely, when used on or in connection with the goods/services of such other person, to cause confusion, or to cause mistake, or to deceive; and that all statements made of his own knowledge are true; and that all statements made on information and belief are believed to be true.” See 15 U.S.C. § 1051(a).

CONCLUSION

For the reasons set forth above, Applicant requests that the Board reject Applicant’s Rule

56(d) Motion and enter summary judgment in its favor and cancel Registration Nos. 4,457,464 and 4,457,499 on the basis of a likelihood of confusion.

Alternatively, the Opposer’s actions and subsequent admissions establish that it has committed fraud upon the USPTO and, thus, the Opposer’s Registrations should be cancelled as a matter of law.

It is in the best interests of judicial economy that TBMP § 407.03(a) be strictly enforced by the Board. The Board has great discretion in determining whether to allow late responses should the Opposer decide to submit any. However, in deciding whether to exercise that discretion to allow late responses, the Opposer should be required to explain why it has not submitted any responses on time, and why it has still not submitted responses to Applicant’s

First Set of Interrogatories and First Requests for Production.

Opposer should not be rewarded with the ability to submit late responses, when it has wholly failed to respond to any of Applicant’s Requests for Production or Interrogatories and has failed to respond to Applicant’s Requests for Admission within the proper time frame.

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Further proceedings would waste the Board’s and the parties’ resources. Applicant therefore requests summary judgment in its favor and dismissal of the opposition.

By:

_/Francis J. Ciaramella/______Francis John Ciaramella, Esquire Florida Bar No. 111927

Rick Ruz, PLLC 7355 SW 87th Avenue Suite 200 Miami, Florida 33173 Phone: (305) 921-9326 Fax: (888) 506-2833

Attorneys for Applicant

Dated: June 11, 2019

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CERTIFICATE OF SERVICE

It is hereby certified that a true copy of the foregoing APPLICANT’S MOTION IN

OPPOSITION TO OPPOSER’S RULE 56(d) MOTION FOR NECESSARY DISCOVERY has served on the following via email:

PETER S SLOANE LEASON ELLIS LLP ONE BARKER AVENUE, FIFTH FLOOR WHITE PLAINS, NY 10601 UNITED STATES [email protected]

By:____/Francis John Ciaramella/_____ Francis John Ciaramella, Esq. Florida Bar No. 111927

Dated: June 11, 2019

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

______

HAVOC BOXING PROMOTIONS LLC,

Opposer,

v. Opposition No. 91243206

ANDRE ROZIER,

Applicant.

______

APPLICANT’S RESPONSE TO OPPOSER’S SECOND REQUEST FOR PRODUCTION

Pursuant the Trademark Rules of Practice and the Federal Rules of Civil Procedure,

Applicant, ANDRE ROZIER (“Applicant”), through his undersigned counsel, hereby responds to Opposer’s Second Request for Production of Documents propounded by Opposer, HAVOC

BOXING PROMOTIONS LLC (“Opposer”), as follows:

GENERAL OBJECTIONS

In addition to the objections separately set forth in response to certain of the requests,

Applicant’s responses are provided subject to the following General Objections, which are hereby expressly incorporated by reference into each and every one of the specific responses below. The failure to include at this time any general or specific objection to a request is neither intended as, nor shall in any way be deemed, a waiver of Applicant’s right to assert that or any other objection at a later date.

1. Applicant objects to Opposer’s instructions and definitions to the extent they require disclosure of information protected by the attorney-client privilege and/or the attorney work product doctrine. Furthermore, Applicant objects to the Requests to the extent they request information from any and all agents, attorneys, investigators, consultants, experts, and other representatives Applicant has retained.

2. Applicant objects to each and every Request to the extent it calls for information to which Opposer has equal or greater access than Applicant.

3. Applicant objects to each and every Request to the extent it requires Applicant to obtain and compile information from third parties.

4. Applicant objects to Opposer’s definition of "you" and "your" to the extent Opposer seeks to obtain information outside Applicant’s personal knowledge and/or seeks information protected by the attorney-client privilege and or work product doctrine.

5. Applicant objects to these Requests to the extent they purport to impose duties and obligations which exceed or are different from those imposed by the Federal Rules of Civil

Procedure or court orders in this action.

OBJECTIONS AND RESPONSES

23. Applicant objects to this request to the extent to which it requires Applicant to provide

Opposer with documents to which Opposer has equal access. Specifically, the instant

request asks for documents relating to the incorporation of the Opposer-company.

24. Applicant objects to this request to the extent to which it requires Applicant to provide

Opposer with documents to which Opposer has equal access. Specifically, the instant

request merely asks for all documents relating to the funding of the Opposer-company.

25. To the best of Applicant’s knowledge, and after a diligent search, no such documents are

in existence, or otherwise within the possession, custody, or control of the Applicant.

26. To the best of Applicant’s ability, Applicant will produce representative documents

showing Applicant’s history with the word HAVOC, and its origins. Opposer is also directed to the many news articles already produced demonstrating Applicant’s affiliation

with the term HAVOC.

27. Applicant objects to this request as duplicative of earlier and similar requests made by

Opposer. Specifically, the instant request refers to clothing items bearing Applicant’s

HAVOC mark. The Opposer is directed to the previous documents submitted in response

to its first requests for production and first set of interrogatories.

28. Applicant objects to this request as duplicative of earlier and similar requests made by

Opposer. Specifically, the instant request refers to social media advertisements by the

Applicant. The Opposer is directed to the previous documents submitted in response to

its first requests for production and first set of interrogatories.

29. Applicant objects to this request as duplicative of earlier and similar requests made by

Opposer. Specifically, the instant request refers documents showing that Applicant sells

his products at boxing events. The Opposer is directed to the previous documents

submitted in response to its first requests for production and first set of interrogatories.

30. To the best of Applicant’s ability, Applicant will produce representative documents

demonstrating how Applicant sells or distributes its goods sold under the HAVOC mark.

Opposer is also directed to the documents already produced showing Applicant’s use of

its HAVOC mark.

31. To the best of Applicant’s ability, Applicant will produce representative documents

showing Applicant’s history with the Opposer. Opposer is also directed to the documents

already produced showing Applicant’s relationship with the Opposer.

32. Applicant objects to this request as duplicative of earlier and similar requests made by

Opposer. Specifically, the instant request refers use of the Applicant’s HAVOC mark in

commerce. The Opposer is directed to the previous documents submitted in response to its first requests for production and first set of interrogatories, which show use of

Applicant’s HAVOC mark over many years.

33. Applicant objects to this request as duplicative of earlier and similar requests made by

Opposer. Specifically, the instant request refers use of the Applicant’s HAVOC mark in

commerce. The Opposer is directed to the previous documents submitted in response to

its first requests for production and first set of interrogatories, which show use of

Applicant’s HAVOC mark over many years.

34. Applicant objects to this Request as overly broad and unduly burdensome. Specifically,

the instant Request is a “catch-all” designed to seek additional documents beyond those

already identified to be produced and is duplicative. Furthermore, the instant request

lacks proportionality and is unlikely to lead to additional discoverable evidence.

By: _/Francis J. Ciaramella/______Francis J. Ciaramella, Esq. Florida Bar Number: 111927

Rick Ruz, PLLC 7355 SW 87th Avenue Suite 200 Miami, Florida 33173 Phone: (305) 921-9326 Fax: (888) 506-2833

Attorneys for Applicant

Dated: May 30, 2019

CERTIFICATE OF SERVICE

It is hereby certified that a true copy of the foregoing Applicant’s Response to Opposer’s Second

Request for Production of Documents has been served on the following via email:

PETER S SLOANE LEASON ELLIS LLP ONE BARKER AVENUE, FIFTH FLOOR WHITE PLAINS, NY 10601 UNITED STATES [email protected]

By:____/Francis John Ciaramella/_____ Francis John Ciaramella, Esq. Florida Bar No. 111927

Dated: May 30, 2019

5/30/2019 Rozier wrecking Havoc in the corner and behind the sewing machine

HOUSTON ROCKETS

GOLDEN STATE WARRIORS

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www.espn.com/sports/boxing/news/story?id=3656317 1/6 5/30/2019 Rozier wrecking Havoc in the corner and behind the sewing machine

NEW YORK -- Andre Rozier is often fashionably late.

Whether he's returning your call, or arriving with his custom-made Havoc outfits for fighters who anxiously warm up in their underwear, Rozier is sometimes a tad behind schedule. HOUSTON ROCKETS It is a befuddling quirk for one of the most interesting figures in boxing, a foible that is easily excused because, well, everyone loves Andre and everyone knows GOLDEN STATE WARRIORS Andre has his hands full. Rozier is a boxing trainer to some of the most successful fighters in New York. MICHIGAN WOLVERINES @ He currently works with professionals Joe Greene, Danny Jacobs, Curtis Stevens and Gary Stark Jr. and U.S. Olympian Sadam Ali, who plans to turn pro ° shortly after the New Year. CHICAGO CUBS Together, they have a combined record of 70-4 with 45 knockouts.

As Rozier is famous for saying, "We are in the hurt business."

But he is also in the fashion business, and few might know that Rozier is just as comfortable at a sewing machine as he is in a fighter's corner.

Rozier, 44, is the founder, creator and exclusive designer of HHavocavoc boxing apparel, a boutique clothing company that provides boxers with glitzy shorts TORONTO RAPTORS and jackets that pushes the boundaries of boxing fashion.

When more than one of his fighters is on the same card, the ring-walk can GOLDEN STATE WARRIORS resemble a catwalk.

Rozier has dressed his boxers in crush velvet, snakeskin, pony skin, zebra skin, corduroy, leather -- you name it.

"Right now, the boxers like crush velvet," Rozier said. "It's a beautiful material. I've used polyesters that give off a fire, a glow. I just try to find something that's eye-catching."

According to Jacobs, there are two sides to Rozier: the strict, no-nonsense trainer, and the creative fashionista.

"We try to separate the two," Jacobs said. "Andre runs you hard even when you're tired. You could have a broke leg and he's like, 'C'mon boy, your leg ain't that broke.'"

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Then, there's the artistic Andre who takes trips to the garment district in Manhattan with his fighters, searching for fabrics and sequins and buttons, trying to find just the right shade of blue to go with that shade of red.

BOSTON BRUINS Rozier will have an opportunity to display his merchandise when Stark, a devoted Havoc customer, faces Leivi Brea (16-7) on the undercard of tonight's Lou DiBella-promoted show at B.B. King's in Manhattan.

Stark will be outfitted in a red, white and blue ensemble made of tissue and satin lame, a brocaded clothing fabric with glittery threads. Stark, who started wearing Havoc in the amateurs, is a loyal customer of Rozier, whom he affectionately calls "Uncle Dre." www.espn.com/sports/boxing/news/story?id=3656317 2/6 5/30/2019 Rozier wrecking Havoc in the corner and behind the sewing machine Rozier is a hands-on designer. He cuts the fabrics (sometimes with Stark's help) stitches it with one of his three sewing machines and goes to an embroiderer to get custom-made prints. He is also his own delivery service, bringing the outfits to the boxers, which can be problematic.

Rozier can sometimes be seen dashing through a crowd to the dressing room with a garment bag minutes before a boxer enters the ring. HOUSTON ROCKETS

When Havoc customer Andre Berto fought Roberto Valenzuela in 2006, he warmed up in a dressing room at Madison Square Garden in his underwear, GOLDEN STATE WARRIORS waiting for Rozier to arrive. Berto was about to walk to the ring in basketball shorts when Rozier rushed in MICHIGAN WOLVERINES @ with the custom-designed shorts, cutting him off in the hallway. Berto wasn't too pleased, but he quickly slipped on Rozier's gear and scored a first-round ° technical knockout.

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"That was crazy," Berto said. "I was upset but it's hard to leave him alone. You get a smile on your face when you see what he's made for you."

Another time, Rozier's car broke down on the way to the Turning Stone Casino in Verona, N.Y., where Greene was fighting. Rozier arrived but only after Greene had entered the ring with backup shorts. Greene won a sixth-round decision against Aundalen Sloan.

His fighters and inner circle tolerate his tardiness, and another odd habit he has of rarely answering his phone, because Rozier is like family -- and relatives can be forgiven for their unusual habits, right? BOSTON BRUINS "We've come a long way together," said Greene's father, Joe Greene Sr. "In the amateurs, there was no way that we could afford to wear attire like that in the ring, but he made it for us anyway."

Greene Sr., who also trains his son, repays Rozier in different ways. When the manager of a pro fighter who wore attire from Rozier's line was slow to pay the balance, Greene Sr. acted like a collection agent and got on the phone and retrieved the money. www.espn.com/sports/boxing/news/story?id=3656317 3/6 5/30/2019 Rozier wrecking Havoc in the corner and behind the sewing machine Most of the time, though, Rozier is on his own.

If a large order comes in, Rozier will stay up all night at his brother Damon's house in Brooklyn. While Andre is gunning the sewing machines until 6 in the morning, Damon, who broke his neck 11 years ago in a motorcycle accident and is in a wheelchair, sleeps in another room, drowning out the racket with his television's surround sound. HOUSTON ROCKETS

Damon raises two sons and one of them, 14-year-old Dashaun, often does his homework in the same workspace that Andre uses. GOLDEN STATE WARRIORS "I go to sleep and he's working," Dashaun said. "I get up in the morning, and he's still working." MICHIGAN WOLVERINES @ When he goes away to training camp, Rozier packs the sewing machines in a ° bag and works on the road.

CHICAGO CUBS Occasionally, Rozier lugs his commercial-grade sewing machines to the gym. It's quite a sight: Andre stitching away while barking instructions to his fighters.

Rozier has also been known to steal naps in the gym. Ali has seen him nod off while he's slipping on his shoes to train.

"To tell you the truth, that man hardly ever sleeps," Ali said.

Damon worries about his health. TORONTO RAPTORS "What he does can take a toll on your body," said Damon, who markets himself as the only African-American comedian in a wheelchair. "But seeing him

GOLDEN STATE WARRIORS achieve his dreams inspires me to do what I do."

Ali's father, Mahmoud, told a story of how Andre was up all night making an outfit for a pro and the next day crashed his car into the guardrail on the Long Island Expressway. He had fallen asleep at the wheel.

"He called me and was like, 'You got to pick me up,'" Mahmoud said. "He works too hard. Sometimes I tell him, 'Andre, you need help.' But he says no. He doesn't want anyone touching his stuff."

Berto's first exposure to Rozier's clothing line came in the amateurs, when he would see boxers from New York dressed in glitzy outfits while he wore the traditional Everlast and adidas clothing.

"I was like, 'Who are these guys?'" Berto said. "They looked like they were getting ready for a pro fight."

After meeting Rozier and befriending several of his fighters, Berto was soon part of the "HavocHavoc movement," which is how Rozier describes the society of LOS ANGELES DODGERS fighters who are loyal to his clothing line.

Rozier has made outfits for Shane Mosley, Diego Corrales, Paulie Malignaggi, Bernard Hopkins, Floyd Mayweather and Zab Judah, among others. BOSTON RED SOX "I don't even look for business now," Rozier said from the kitchen of his brother's home. "It just comes to me. Quite honestly, right now, I'm like the king of the ring."

Rozier expects complete loyalty from his own fighters, and he was hurt when Jacobs told him in the locker room before a bout with Ramon Espinoza on Sept. 13 that he would be wearing Everlast that night.

Up until then, Jacobs had decorated himself only in Rozier's clothing.

"I was so mad that day," Rozier said. "It bothered me a lot, but there's really nothing that I can do. I know he's not loyal to me and that's the bottom line. He wore a basic Everlast outfit. It wasn't anything like Havoc."Havoc

Feeding Rozier's anxiety was an incident at this year's Olympic Trials, when

BOSTON BRUINS Jacobs revealed to Rozier that he intended to rotate him and Mark Breland in the corner from match to match.

"I decided that I wanted Mark helping me because he had the experience of winning a gold medal in the Olympics," Jacobs said. "I still wanted Andre helping me. It was just that I wanted Mark in there, too."

Rozier didn't like the idea and excused himself from the whole tournament and watched from the sideline as Jacobs lost to Shawn Estrada in the 165-pound final. www.espn.com/sports/boxing/news/story?id=3656317 4/6 5/30/2019 Rozier wrecking Havoc in the corner and behind the sewing machine

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"I did not want Danny to lose this tournament," Rozier said. "In fact, I felt like crying when he lost, but fate is a mean, mean character. You get what you give to people."

Nonetheless, Rozier still adores Jacobs like a son, and Jacobs is devoted to Andre. Rozier charges Jacobs, a fast-rising prospect, a minor fee for the clothes. TORONTO RAPTORS "He's my trainer and a friend, but loyalty is not defined by wearing someone's trunks," said Jacobs, who also wore Everlast against Emmanuel Gonzalez on GOLDEN STATE WARRIORS Sept. 27. "Loyalty is defined by you still being around and you still being a part of my team and making money with me.

"It's hard to say no when Everlast is giving you thousands of dollars in free equipment and clothes for me to use and Andre is charging me."

Most recently, Jacobs (11-0, 10 knockouts) wore Rozier's threads in Atlantic City, N.J., on the undercard of Hopkins' upset win over Pavlik. Jacobs annihilated Tyrone Watson on Saturday in the first round, and the sun and the moon returned to their rightful positions in the Havoc universe.

"It was a wonderful fight," Rozier said. "And of course, Danny looked great in Havoc."Havoc

Mitch Abramson covers sports for the New York Daily News.

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Houston Rockets coach Mike D'Antoni has ended talks with management about a contract extension, league sources told ESPN.

D'Antoni plans to complete the final season of his deal in 2019-20, which could become a pathway to his own free agency the next year. @

BOSTON BRUINS D'Antoni's agent, Warren LeGarie, informed Rockets general manager Daryl ° Morey of the coach's decision on Thursday afternoon, sources said.

There had been conversations constructed around the Rockets idea of a performance-based extension, but those never gained traction with D'Antoni's camp, sources said.

www.espn.com/sports/boxing/news/story?id=3656317 5/6 5/30/2019 Rozier wrecking Havoc in the corner and behind the sewing machine

The successes in his three years on the job -- four Western Conference series victories, a conference finals appearance and an NBA coach of the year award -- led D'Antoni to believe that a potential extension would follow the more HOUSTON ROCKETS traditional guaranteed framework of comparable coaching peers.

The Rockets are a franchise in flux, with an entire roster available in trade talks GOLDEN STATE WARRIORS and two high-profile assistant coaches recently told by the organization that they wouldn't be brought back next season.

MICHIGAN WOLVERINES @ D'Antoni, 68, told ESPN recently that he had hoped to coach at least three more years. ° CHICAGO CUBS "I've let Daryl and [owner] Tilman [Fertitta] know that I'm energized to keep coaching -- and believe that I can continue to do this at a high-level for at least another three years," D'Antoni told ESPN.

"I want be part of a championship here."

Fertitta called the Rockets' loss in the Western Conference semifinals to the Golden State Warriors "unacceptable." Top assistant Jeff Bzdelik -- who was talked out of retirement in November to address the team's defense -- and

TORONTO RAPTORS respected assistant Roy Rogers weren't brought back for next season by management.

D'Antoni has averaged 58 victories in his three seasons with the Rockets, GOLDEN STATE WARRIORS including four playoff series victories and a trip to Game 7 of the 2018 Western Conference finals. The Warriors eliminated the Rockets in the past two seasons.

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www.espn.com/sports/boxing/news/story?id=3656317 6/6 5/30/2019 Boxing News: Andre Rozier Is Wreaking Havoc

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ARTICLES OF 2005

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Published 14 years ago on November 10, 2005 By Zachary Levin

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FEATURED ARTICLES / 4 days ago Last Friday night the unthinkable happened to one of Andre Rozier’s protégés. Super middleweight Jaidon Codrington, the brightest prospect in New York, was knocked out in 18 seconds by Allan Green. It was supposed to be his unveiling before a national audience on FEATURED ARTICLES / 4 days ago ShoBox, but instead the 9-0 boxer-slugger found himself unconscious for roughly three minutes.

As awful as the knockout was, the pandemonium that followed as the ghter lay on his back, helpless to the world, was worse. Besides the fact he could have been trampled by those storming the ring, the emotional overload from his people was hard to watch—and impossible not to. It was a display of love, grief, shock, fright, anguish, and more love. Members of Codrington’s family and camp lay next to him on the canvas trying to coax him back to consciousness with sympathetic words and sobs. “I love you, J! I love you, J! I love you, J!”

But a ghter is a solitary gure, ultimately facing his trials alone.

The unthinkable happens frequently in boxing. This was the underlying message of Andre Rozier’s discussion over dinner recently in downtown Manhattan. Rozier is Codrington’s co- trainer at the Starrett City Boxing Club in Brooklyn. He is also the head trainer of Jaidon’s still- undefeated stablemates, Joe Greene (6-0) and Curtis Stevens (9-0), and trains several blue- chip amateurs. The 41-year-old is a daily presence in their lives, a combination of a drill sergeant and a tough love parent.

“When we’re preparing for combat, it’s business time,” Rozier said, ordering a soy-based vegetarian dish and not the bloody steak one might expect. “I don’t want any joking, I don’t want any downtime, I don’t want any playing.”

The grave attitude Rozier instills in his ghters is his attempt to ensure the unthinkable won’t happen. Usually it doesn’t.

“We utilize aggressive techniques to win our battles. We commit to lots of attacks, we keep our number of punches up—combinations win ghts. And you must always be tenacious. Always.”

Contrary to the trainer’s teachings, Codrington allowed Green to lock him in his corner and force the 21-year-old into a defensive role. That wasn’t Starrett City boxing, and Rozier couldn’t have liked what he saw.

tss.ib.tv/boxing/articles-of-2005/2848-andre-rozier-is-wreaking-havoc 1/5 5/30/2019 Boxing News: Andre Rozier Is Wreaking Havoc For those of us who have only known ghters charging out of Rozier’s corner and doing the bullying, it was disconcerting. One can only imagine how Codrington felt, being the real green man, facing an equally skilled opponent but with nearly twice as many bouts (now 18-0, 12 KOs).

Rozier came to my attention in the late ‘90s, from following the local amateur boxing scene. If you heard a kid from “Coney Island Strong Brothers” might be ghting, you took on the motto of the United States Postal Service. (Neither snow, nor rain, nor heat, nor gloom of night stopped me from getting lost in far-ung neighborhoods that made Beirut look quaint.) A trio of “Strong Brothers”—lightweight Charles Vanderveer, middleweight Joe Greene, and light heavyweight Curtis Stevens—began their tutelage under Rozier not long after getting toilet-trained, and by the time they were 18 had an estimated combined record of 450- 20 (with a ton knockouts).

When these ghters began turning pro, Rozier moved camp from Coney Island to the East New York section of Brooklyn, where Starrett City is located. The gym, teeming with talent, is becoming a modern day version of Detroit’s Kronk, the boxing factory that during its golden age in the ‘70s and ‘80s cranked out champions like a Ford assembly line.

Of course, Codrington’s horrible crash will reverberate throughout Starrett City. This low-slung cinderblock dungeon buried beneath a garage has only known success lately. Along with Rozier’s aforementioned young roughnecks, WBA welterweight titlist Luis Collazo (26-1), junior welterweight Dmitriy Salita (23-0), featherweight Gary Stark Jr. (12-0), and elite amateurs William Rosinsky, Daniel Jacobs, Anthony Irons, and Saddam Ali all ply their trade there. If the fallen star doesn’t recapture his past glory, the fertile sweat-pit has capable understudies ready to ll in.

Everyone who enters this gym is on speaking terms with adversity, however. They all come from the roughest parts of Brooklyn and Queens, and were drawn to the hardest game for a reason. Rozier is no exception.

“You learn how to ght or you learn how to run,” Rozier chuckled, speaking of growing up in Brownsville, where his dynamo nephew Curtis Stevens still lives. Stevens dons a “B-Ville” bandana when he enters the ring, and it’s not simply local pride that elicits cheers from his neighborhood fans, but an acknowledgement that here is a clean living, driven, disciplined brother—something rarely broadcasted about his demographic.

Rozier once thought he was destined for stic stardom, too. Before he was old enough to compete in the Golden Gloves, he had compiled a record of 52-2. He was a light heavyweight, about the same size he is now. His two losses only came when he was drained from dropping down to middleweight. When he was of age for the Gloves and took the physical, he failed— high blood pressure. He took the physical a week later, and failed again.

“I thought I was going to be world champion. I thought I was one of the few who had what it took. Unfortunately, it didn’t work out that way.”

Rozier examined the steaming dish placed before him, described as Creole chicken, but is actually a tofu creation avored to taste like the real thing. He thinks that his high blood pressure was due to stress, but still decided to become a vegetarian. The vegetarian restaurant he chose, Red Bamboo, is one of his favorite places to unwind after doing 24 straight rounds of grueling pad work for his charges.

He left boxing for three years after failing his medical. But a kid who lived in his building wanted to learn how to box, and Andre started taking him to the gym. Since then, over 20 years later, Rozier hasn’t been able to resist the smell of liniment and sweat, the sound of leather on bone.

“I’m a teacher, and I like to guide my students. I was slated to be a trainer.”

Boxing has been his one true love, an obsession that never abates.

“My passion for the sport is so, so great. I remember when Ali was boxing on TV, I used to sneak around, grab a glimpse, because it was past my bedtime. But I’d peak around the corner and watch Ali. And I’d always say, ‘I wish I could be like that. I want to be like Muhammad Ali.’”

A roll call of his other favorite ghters includes Joe Frazier, Marvin Hagler, Sugar Ray Leonard, Azumah Nelson, Aaron Pryor. “The list goes on and on,” he said. “I watch every boxing match I can see. If there was 24 hours of boxing on TV, I’d be watching it.”

His ghters don’t share his lust for the sport, Andre said. They’ll catch the big ghts, but would rather be doing the ghting themselves. Rozier understands that not everyone can be like him. He’s like that PhD candidate who never intends on getting his degree because it’s the learning that makes him tick. tss.ib.tv/boxing/articles-of-2005/2848-andre-rozier-is-wreaking-havoc 2/5 5/30/2019 Boxing News: Andre Rozier Is Wreaking Havoc His dedication to boxing notwithstanding, Rozier has other sides to him that cause you to do a double take.

“I’ve been sewing since I was 12 years old,” he said.

When he was growing up, custom tailors displayed their wares in front of their stores. It was an urban phenomenon, he explained, mainly catering to black and Hispanic youth.

“I wanted some of that special gear, I wanted tailor-made clothing. They had elaborate pants with zipper pockets, sharp materials like Aberdeen wool, stuff like that. It was really cool. But it was very expensive. Back then, tailor-made slacks were $50.”

Rozier said his family was middle class—albeit by Brownsville standards—and never wanted for anything. But the idea of mom parting with $50 so the 6th grader could have special pants was not happening.

If Rozier were to look like he just walked off the set of “Supery,” his duds would have to be literally homespun. He asked his grandmother, an accomplished seamstress, if she would serve as his tailor. She declined but offered to teach him how to sew.

“She showed me how to cut, how to stitch, how to put fabric together, how to make sure your clothing was going together piece by piece,” he said. “I can still remember the rst pair of pants I made. Oh my God, how grotesque they were! But, I made them.”

Nine months later he was putting money in his pocket, doing jobs for the tailors whose designs he used to ogle.

“By the time I entered high school,” he said, “I was the best dressed cat around. Every night I would make something. I would go to the material store; I’d have pants the next day. I had fty pairs of pants in my closet. I was a y guy, low-key and smooth. But the clothing does help. It gave me more savoir fair.”

A pragmatist, Rozier eventually married his two main pastimes, boxing and fashion. Thus was born his boxing apparel company Havoc Enterprises. When he isn’t instructing ghters at Starrett City, he’s likely at the New Jersey headquarters of Havoc. All of his ghters are outtted in his glitzy designs, as well as some of the biggest names in the industry. When Diego Corrales entered the ring for his ballyhooed rematch against Jose Luis Castillo, he was resplendent in Havoc gear, which included a black cape that would be the envy of Batman. Fighters are increasingly wearing Havoc over the more established brands like Everlast, Grant, and Spartan.

The trajectories of his ghters’ careers and his apparel company have been skyrocketing in tandem.

“Everything is coming together,” said Rozier, who wore humble baggy sweats at dinner, reminding me of a gifted boxer who will throw easy combinations at half-speed when shadowboxing—they’ve got nothing to prove. The only item that stuck out was a “Mean Joe Greene” T-shirt of his own making.

Complimenting the clever advertising campaign on his chest, I shifted the conversation back to his litter pit-bull ghters, and Codrington’s upcoming ght. Rozier said that while he’s taught them to hunt down opponents with brutal eciency, he always prays that no one involved gets seriously hurt.

It was implied when he said, “No one involved,” that he was referring not to his ghter but the other guy. At the time, it was almost unthinkable that on November 5th, Jaidon Codrington, the brightest prospect in New York, would need our prayers.

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Zachary Levin

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ARTICLES OF 2005

Published 13 years ago on December 31, 2005 By Chris Gielty ¬

A Shot of Boxing on the Last Day of the Year

The Guardian reports that talks have already taken place between Nicolay Valuev‘s co- promoters – Don King and Wilfried Sauerland – and Danny Williams‘ promoter Frank Warren for Nicolay Valuev to face Danny Williams. I’d suggest Danny Williams needs to worry about Matt Skelton (who Williams is reportedly scheduled to ght in February) before he entertains notions of facing the Beast From The East.

The Mirror in the UK looks forward to a big year in boxing for 2006. The Mirror considers what the future might bring for Joe Calzaghe, Amir Khan and Ricky Hatton, among others.

The Parksville Qualicum News has an interesting column on the travails of former Canadian Super Middleweight title holder Mark Woolnough. Woolnough’s career turned controversial – as widely reported in the Canadian press – at the beginning of this year when Woolnough and

four other men were charged with mansCONTINUElaughter READINGand assault after a ght outside a Parksville nightclub The case returns to court next month It’s an interesting read as Woolnough is still

ARTICLES OF 2005

Published 13 years ago on December 31, 2005 By Editor ¬

Hot bantamweight prospect Raul “The Cobra” Martinez heads back to Chicago next Friday night as he is featured in the co-main event of SHOBOX “THE NEW GENERATION,” an action packed evening of professional boxing presented by Dominic Pesoli’s 8 Count Productions,’ HOME OF THE BEST IN CHICAGO BOXING, Kathy Duva’s Main Events Inc., along with Miller Lite and TCF Bank.

The two-time national amateur champion sporting a perfect 12-0 record with 9 knockouts, six of which have come in the rst round, will take on Colombian Andres “Andy Boy” Ledesma, 13- 1 (8 KOs) in a scheduled eight round bout.

Speaking after a training session at his home gym in Georgetown, Texas, Martinez said, “I’m truly looking forward to returning to Chicago. The fans were terric in September, they were very supportive from the start of the ght,” an internationally televised rst round knockout of Miguel Martinez on September 16th at the Aragon Ballroom. CONTINUE READING Regarding his upcoming ght with Ledesma “The Cobra” said “I haven’t seen him ght

ARTICLES OF 2005

tss.ib.tv/boxing/articles-of-2005/2848-andre-rozier-is-wreaking-havoc 4/5 5/30/2019 Boxing News: Andre Rozier Is Wreaking Havoc

Published 13 years ago on December 31, 2005 By Phil Woolever ¬

Here’s the early call on many top matches scheduled for the rst half of 2006: Happy New Year!

As the new calendar dawns, there are already a considerable amount of premium bouts on the horizon. Things don’t look to be bogged down by undetermined championships next year. In many cases the scheduled face-offs involve the best ghters in the division, or at least close enough for general bragging rights. If anybody else with proper qualications signs up to force the issue, all the better.

It can be argued that some pairings could have taken place within a more optimal timeframe, or that some headliners carry distracting baggage, but there are certainly enough heavy hitters on deck. That nobody can deny.

It doesn’t matter whether one considers the proverbial glass half empty or half full; there’s still

the same amount of juice in the vessel. CONTINUEIt’s nice toREADING know that even with a high number of cancellations there will still be plenty of important contenders on tap

TRENDING

FEATURED ARTICLES / 3 weeks ago FEATURED ARTICLES / 5 days ago FEATURED ARTICLES / 3 weeks ago FEATURED ARTICLES / 4 weeks ago

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

______

HAVOC BOXING PROMOTIONS LLC,

Opposer,

v. Opposition No. 91243206

ANDRE ROZIER,

Applicant.

______

APPLICANT’S RESPONSE TO OPPOSER’S SECOND SET OF INTERROGATORIES

Pursuant to Rule 2.120 of the Trademark Rules of Practice and Rule 33 of the Federal

Rules of Civil Procedure, Applicant, ANDRE ROZIER (“Applicant”), through his undersigned counsel, hereby objects and responds to Opposer’s Second Set of Interrogatories propounded by

Opposer, HAVOC BOXING PROMOTIONS LLC (“Opposer”) as follows: GENERAL OBJECTIONS

In addition to the objections separately set forth in response to certain of the

Interrogatories, Applicant’s responses are provided subject to the following General Objections, which are hereby expressly incorporated by reference into each and every one of the specific responses below. The failure to include at this time any general or specific objection to an

Interrogatory is neither intended as, nor shall in any way be deemed, a waiver of Applicant’s right to assert that or any other objection at a later date.

1. Applicant objects to Opposer’s instructions and definitions to the extent they require disclosure of information protected by the attorney-client privilege and/or the attorney work product doctrine. Furthermore, Applicant objects to the interrogatories to the extent they request information from any and all agents, attorneys, investigators, consultants, experts, and other representatives Applicant has retained.

2. Applicant objects to each and every interrogatory to the extent it calls for information to which Opposer has equal or greater access than Applicant.

3. Applicant objects to each and every interrogatory to the extent it requires Applicant to obtain and compile information from third parties.

4. Applicant objects to Opposer’s definition of "you" and "your" to the extent Opposer seeks to obtain information outside Applicant’s personal knowledge and/or seeks information protected by the attorney-client privilege and or work product doctrine.

5. Applicant objects to these interrogatories to the extent they purport to impose duties and obligations which exceed or are different from those imposed by the Federal Rules of Civil

Procedure or court orders in this action.

OBJECTIONS AND RESPONSES

20. Instagram and Facebook.

21. Applicant objects to this request as it would be unduly burdensome. Specifically, the

instant request seeks to have Applicant list every single boxing event it has ever held

while using its HAVOC mark. In response, and pursuant to Rule 33(d), the Applicant

directs Opposer to the documents produced in response to its first sets of interrogatories

and requests for production which show photographs of Applicant’s HAVOC mark as it

appeared in many boxing events over numerous years.

22. To the best of Applicant’s ability, Applicant will produce representative documents

demonstrating how Applicant sells or distributes its goods sold under the HAVOC mark.

Opposer is also directed to the documents already produced showing Applicant’s use of

its HAVOC mark. 23. There are no such periods of time during which Applicant did not use the mark HAVOC.

24. Applicant objects to this interrogatory on the basis that it is unrelated to the present

proceeding. Specifically, the interrogatory seeks to have Applicant identify the names

and addresses of all business owned or operated by the Applicant over a period of five

years. Applicant’s ownership of other entities, which are not a party to this proceeding, is

unrelated to Opposer’s claim of priority and a likelihood of confusion. Notwithstanding

the objection, the Applicant responds as follows: Applicant was also involved with the

company Havoc Promotions, Inc., a New York Corporation originally formed in 2006.

25. Applicant objects to this interrogatory on the basis that it is unrelated to the present

proceeding. Specifically, the interrogatory seeks to have Applicant identify all

employees of any business owned or operated by the Applicant over a period of five

years. This interrogatory is unrelated to Opposer’s claim of priority and a likelihood of

confusion. Notwithstanding the objection, the Applicant responds as follows: Havoc

Promotions, Inc. was operated with another individual, Nirmal Lorick.

26. Applicant objects to this interrogatory on the basis that it is unrelated to the present

proceeding. Specifically, the interrogatory seeks to have Applicant identify all investors

in any business owned or operated by the Applicant over a period of five years. This

interrogatory is unrelated to Opposer’s claim of priority and a likelihood of confusion.

27. Rob Diaz stopped working for the Applicant when it was discovered that Opposer sent a

cease and desist letter to a business affiliate of the Applicant.

28. Yes, Applicant claims common law rights to the name and design of the mark shown in

Opposer’s Registration No. 4,457,499. Specifically, the instant registration is nearly

identical to other variations of the mark HAVOC as used by the Applicant. The Opposer

is also directed to Applicant’s prior documents production showing Applicant’s use of an identical mark (e.g., Applicant’s Documents 061 which shows use of an identical

HAVOC mark by Applicant in 2009 before Applicant and Opposer met through Rob

Diaz in 2010).

29. The mark that is the subject of Application No. 87/475,869 is an alternative design of the

HAVOC mark used by Applicant. Use of this mark is evidence in the documents already

produced by Applicant.

30. This letter should already be in possession of the Opposer, but to the best of Applicant’s

knowledge, the letter in question was sent in 2016.

31. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

32. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

33. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

34. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

35. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel. 36. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

37. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

38. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

39. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

40. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

41. Applicant has already indicated to Opposer through his counsel which documents are

responsive to which of Opposer’s requests. Opposer is directed to these communications

from Applicant’s counsel.

42. Applicant objects to this Request as overly broad and unduly burdensome. Specifically,

the instant Request is a “catch-all” designed to seek additional documents beyond those

already identified to be produced and is duplicative. Furthermore, the instant request

lacks proportionality and is unlikely to lead to additional discoverable evidence.

By: _/Francis J. Ciaramella/______Francis J. Ciaramella, Esq. FL Bar Number 111927

Rick Ruz, PLLC 7355 SW 87th Avenue Suite 200 Miami, Florida 33173 Phone: (305) 921-9326 Fax: (888) 506-2833

Attorneys for Applicant

Dated: May 30, 2019

CERTIFICATE OF SERVICE

I hereby certify that a true and complete copy of the foregoing Applicant’s Response to

Opposer’s Second Set of Interrogatories has been served on the following via email:

PETER S SLOANE LEASON ELLIS LLP ONE BARKER AVENUE, FIFTH FLOOR WHITE PLAINS, NY 10601 UNITED STATES [email protected]

By:___/Francis John Ciaramella/__ Francis John Ciaramella, Esquire

Dated: May 30, 2019

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

______

HAVOC BOXING PROMOTIONS LLC,

Opposer,

v. Opposition No. 91243206

ANDRE ROZIER,

Applicant.

______

APPLICANT’S RESPONSE TO OPPOSER’S FIRST REQUEST FOR ADMSSIONS

Pursuant to Rule 2.120 of the Trademark Rules of Practice and Rule 36 of the Federal

Rules of Civil Procedure, Applicant, ANDRE ROZIER (“Applicant”), through his undersigned counsel, hereby objects and responds to Opposer’s First Set of Request for Admission propounded by Opposer, HAVOC BOXING PROMOTIONS LLC (“Opposer”) as follows.

GENERAL OBJECTIONS

In addition to the objections separately set forth in response to certain of the Requests for

Admissions, Applicant’s responses are provided subject to the following General Objections, which are hereby expressly incorporated by reference into each and every one of the specific responses below. The failure to include at this time any general or specific objection to a

Request for Admission is neither intended as, nor shall in any way be deemed, a waiver of

Applicant’s right to assert that or any other objection at a later date.

1. Nothing herein shall be construed as an admission by Applicant regarding the competence, admissibility, and/or relevance of any document, or as an admission of the truth or accuracy of any characterization or document of any kind sought by the Requests. Applicant

Page 1 of 7 reserves the right to challenge the competency, relevance, materiality, and admissibility of any documents Applicant produces in response to any request at trial of this or any other action, or at any subsequent proceeding of this or of any other action.

2. Applicant objects to the Requests on the ground, and to the extent, that they seek materials or information that are privileged and protected from production under the attorney/client privilege, the work-product rule, or any other privilege or immunity from discovery.

3. Applicant objects to the Requests on the ground, and to the extent, that they seek discovery of information not relevant to the disputes at issue in this lawsuit.

4. Applicant objects to responding to any Requests to the extent that it requires

Applicant to gather and summarize information already in the possession of or equally available to Opposer.

5. Applicant’s failure to make any objection, either in these General Objections or in a specific response below, through inadvertence, ignorance of facts giving rise to such objection, or for any other reason, will not be considered a waiver of such objection.

6. These responses, while based on diligent search by Applicant’s counsel are based on Applicant’s knowledge, understanding, and belief. Applicant reserves the right to supplement or amend these responses as a result of mistake, inadvertence, oversight, or subsequent discovery. Applicant also reserve the right to object at trial to the introduction of these responses, or of supplemental responses, on any and all appropriate grounds, and to introduce into evidence information omitted from these responses as a result of mistake, inadvertence, oversight, or subsequent discovery.

7. Applicant objects to these interrogatories to the extent they purport to impose duties and obligations which exceed or are different from those imposed by the Federal Rules of

Civil Procedure or court orders in this action.

Page 2 of 7

RESPONSE TO OPPOSER’S FIRST REQUEST FOR ADMISSIONS

1. Applicant admits that Applicant was aware of the Opposer, through its CEO Rob Diaz, in

2010. Any and all other allegations contained within this request are denied.

2. Applicant requests clarification of this request. Specifically, what does Opposer mean

when it states that “Applicant and Opposer conducted business together”?

3. Applicant admits that he was aware of the Opposer, through its CEO Rob Diaz, at the

time Opposer filed Application Nos. 85/740,903 and 85/747,962 (i.e., in 2012). Any and

all other allegations contained within this request are denied.

4. Applicant did not object to Opposer’s Marks until filing a counterclaim against Opposer

after Opposer initially filed an opposition against the Applicant’s Application No.

87/475,869. Any and all other allegations contained within this request are denied.

5. Applicant did not object to Opposer’s Marks until filing a counterclaim against Opposer

after Opposer initially filed an opposition against the Applicant’s Application No.

87/475,869. Any and all other allegations contained within this request are denied.

6. Applicant did know of Opposer’s applications (Serial Nos. 85/740,903 and 85/747,962)

at the time it filed Application No. 87/475,869. Any and all other allegations contained

within this request are denied.

7. Applicant admits that it was aware of the Opposer, through its CEO Rob Diaz, at the time

Applicant filed Trademark Application No. 87/475,869. Applicant denies any allegation

that Opposer is the senior user of any HAVOC mark. Any and all other allegations

contained within this request are denied.

8. Applicant did know of Opposer’s applications (Serial Nos. 85/740,903 and 85/747,962)

at the time it filed Application No. 87/475,869. Any and all other allegations contained

within this request are denied.

Page 3 of 7

9. Applicant admits that, appearing pro se, he filed Application No. 87/475,869 for the

below design mark based upon an intent to use. Applicant denies any allegations that it

has not otherwise used the mark HAVOC in commerce and limits this admission

expressly to Application No. 87/475,869. Any and all other allegations contained within

this request are denied.

10. Denied. Applicant has previously produced to Opposer documents evidencing use of the

above design mark (Application No. 87/475,869) in commerce.

11. Applicant admits that no statement of use has been submitted for the mark HAVOC V

ATHLETICS, the subject of Application No. 87/475,869. It is noted that due to

Opposer’s Notice of Opposition, no Notice of Allowance has issued to which Applicant

could respond with evidence of use in commerce of the same. Applicant denies any

allegations that it has not otherwise used the mark HAVOC in commerce and limits this

admission expressly to Application No. 87/475,869. Any and all other allegations

contained within this request are denied.

12. Denied.

13. Denied.

14. To the best of Applicant’s knowledge, Applicant does not own a portion of the Opposer-

company Havoc Boxing Promotions LLC. Any and all other allegations contained within

this request are denied.

Page 4 of 7

15. To the best of Applicant’s knowledge, Applicant has not invested funds in the Opposer-

company Havoc Boxing Promotions LLC. Any and all other allegations contained within

this request are denied.

16. Denied.

17. Denied.

18. Denied.

19. Denied.

20. To the best of Applicant’s knowledge, the Applicant has not received any such

communications.

21. To the best of Applicant’s knowledge, the Applicant has not received any such

communications.

22. Denied.

23. Denied.

24. Denied.

25. Denied.

26. Denied.

27. Denied.

28. Denied.

29. Denied.

30. Denied.

31. Denied.

32. Denied.

33. Denied.

34. Denied.

Page 5 of 7

35. Denied.

36. To the best of the Applicant’s knowledge, Applicant admits that the documents

designated as Applicant’s Documents 001 through Applicant’s Document’s 068 are

genuine. Any and all other allegations contained within this request are denied.

37. To the best of the Applicant’s knowledge, Applicant admits that the documents submitted

in response to Opposer’s First Sets of Document Requests and Interrogatories are

genuine. Any and all other allegations contained within this request are denied.

38. To the best of the Applicant’s knowledge, Applicant admits that the documents submitted

in response to Opposer’s Second Sets of Document Requests and Interrogatories are

genuine. Any and all other allegations contained within this request are denied.

By:

_/Francis J. Ciaramella/______Francis John Ciaramella, Esquire

Rick Ruz, PLLC 7355 SW 87th Avenue Suite 200 Miami, Florida 33173 Phone: (305) 921-9326 Fax: (888) 506-2833 Attorneys for Applicant

Dated: May 30, 2019

Page 6 of 7

CERTIFICATE OF SERVICE

It is hereby certified that a true copy of the foregoing Applicant’s Response to Opposer’s First

Request for Admissions has been served on the following via email:

PETER S SLOANE LEASON ELLIS LLP ONE BARKER AVENUE, FIFTH FLOOR WHITE PLAINS, NY 10601 UNITED STATES [email protected]

By:____/Francis John Ciaramella/_____ Francis John Ciaramella, Esq. Florida Bar No. 111927

Dated: May 30, 2019

Page 7 of 7