ESTTA861773 12/01/2017 in the UNITED STATES PATENT and TRADEMARK OFFICE BEFORE the TRADEMARK TRIAL and APPEAL BOARD Proceeding 9

Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA861773 Filing date: 12/01/2017 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91223136 Party Plaintiff Texas A&M University Correspondence JOHN C CAIN Address FLECKMAN & MCGLYNN PLLC 8945 LONG POINT ROAD , SUITE 120 HOUSTON, TX 77055 UNITED STATES Email: [email protected], [email protected], [email protected] Submission Testimony For Plaintiff Filer's Name Zachariah Wolfe Filer's email [email protected], [email protected] Signature /Zachariah Wolfe/ Date 12/01/2017 Attachments 2017.12.01 Notice of Filing of Deposition.pdf(308135 bytes ) 2017 0808 Deposition of Shane Hinckley.pdf(777567 bytes ) IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

TEXAS A&M UNIVERSITY § OPPOSITION § Opposer, § Opposition No.: 91223136 § v. § Application Serial No.: 86/445,864 § § Filed: November 5, 2014 § WASHINGTON SOAP COMPANY § § Applicant. §

OPPOSER’S NOTICE OF FILING OF TESTIMONY DEPOSITION

In accordance with 37 C.F.R. § 2.125(d), Opposer Texas A&M University files the attached certified transcript and exhibits of the testimony deposition of Shane Hinckley taken on

August 8, 2017. (Exhibits will be filed separately due to file size limitations.)

December 1, 2017 /s/ John C. Cain John C. Cain Email: [email protected] Zachariah Wolfe Email: [email protected] Fleckman & McGlynn, PLLC 8945 Long Point Rd, Suite 120 Houston, Texas 77055 Telephone: (713) 722-0120 Facsimile: (832) 446-2424

ATTORNEYS FOR OPPOSER, TEXAS A&M UNIVERSITY

CERTIFICATE OF SERVICE

I hereby certify that a true and correct copy of Opposer’s Notice of Filing of Testimony Deposition is being served on Applicant on December 1, 2017 by email to [email protected] with copies of the exhibits being served on Applicant by certified mail to Mr. Jeff Sellentin, Washington Soap Company, 785 16th Pl., Suite 22, Mukilteo, WA 98275-2283.

/s/ Zachariah Wolfe Zachariah Wolfe

Shane Hinckley 8/8/2017

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

Texas A&M University, ) Opposition No. 91223136 ) Serial No. 886/445,864 Opposer, ) ) VS. ) OPPOSITION ACTION ) Washington Soap ) Company, ) ) Applicant. ) Mark: 12th MAN HANDS ******************************************* ORAL DEPOSITION OF

SHANE HINCKLEY

AUGUST 8, 2017

******************************************

ORAL DEPOSITION OF SHANE HINCKLEY, produced as a witness at the instance of the OPPOSER, and duly sworn, was taken in the above-styled and numbered cause on the 8th day of August, 2017, from 9:02 a.m. to 4:45 p.m., before Donna J. Whiteside, CSR in and for the State of Texas, reported by machine shorthand, at Texas A&M University, Jack K. Williams Administration Building, 400 Bizzell Street, Room 002, College Station, Texas, pursuant to the Federal Rules of Civil Procedure and the provisions stated on the record or attached hereto.

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2 1 A P P E A R A N C E S 2 3 FOR THE OPPOSER: 4 Mr. John C. Cain FLECKMAN & McGLYNN, PLLC 5 8945 Long Point Road, Suite 120 Houston, Texas 77055 6 Phone: (713) 722-0120 Fax: (713) 722-0122 7 [email protected] 8 Ms. Katherine R. Knight THE TEXAS A&M UNIVERSITY SYSTEM 9 OFFICE OF GENERAL COUNSEL John B. Connally Building, 6th Floor 10 301 Tarrow Street College Station, Texas 77840-7896 11 Phone: (979) 458-7461 Fax: (979) 458-6150 12 [email protected] 13 FOR THE APPLICANT: 14 Mr. Jeff Sellentin (NOT PRESENT) WASHINGTON SOAP COMPANY 15 785 16th Place, Suite 22 Mukilteo, Washington 98275-2283 16 [email protected] 17 ALSO PRESENT: 18 Ryan Pope 19 20 21 22 23 24 25

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3 1 I N D E X 2 Page 3 Appearances...... 2 4 Examinations Page 5 6 EXAMINATION BY MR. CAIN...... 11 7 OPPOSER'S EXHIBITS 8 No. Description Offered 9 1 Printout of Book Entitled "The Twelfth 35 10 Man" by Wilbur Evans and H.B. McElroy 11 2 Photo from Circa 1930 of Kyle Field 38 12 3 Photo from Kyle Field in a Game in 1984 39 13 4 Manuscript of Dr. E. King Gill's Speech 42 14 5 Photo of a Statue of E. King Gill on the 44 Plaza Outside Kyle Field 15 6 News Article Out of the Eagle Newspaper 45 16 Dated August 12th, 2013 17 7 A National Sports Blog Entitled "Good 47 Bull Hunting" 18 8 Newspaper Article from an Alabama 49 19 Newspaper Titled "Who Is The 12th Man for Texas A&M Aggies?" 20 9 News Article by KBTX dated January 50 21 of 2017 22 10 Document from the Association of Former 53 Students Website Depicting the Statues 23 of E. King Gill 24 11 12th Man Trademark Certificate Issued on 62 September 4th of 1990 25

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4 1 EXHIBITS CONTINUED 2 12 Trademark of Service Certificate of 12th 62 Man for Classes 14 and 41, Registered on 3 January 16, 1996. 4 13 12th Man Mark in Class 41, Registered 62 December 18, 2007 5 14 Trademark Certificate for Home of the 62 6 12th Man in Classes 25 and 41, Registered March 12, 2013 7 15 Screenshots From the Texas A&M Athletic 63 8 Website 12thMan.com 9 16 (No exhibit offered) 10 17 Screenshots of Videos from Website 60 11 18 Texas A&M Athletics Mobile App 67 12 19 Media Guide 68 13 20 Article by Steve Berkowitz 77 14 21 Printouts of the 12thManFoundation.com 79 15 22 12th Man Foundation Logo 82 16 23 Sticker That Contains the 12th Man Logo 82 17 24 Copy of the July 15, 2017, 12th Man 83 Magazine 18 25 Picture of the Outside of Kyle Field 88 19 Student Entrance 20 26 Photos of the Student Union in the 89 Memorial Student Center 21 27 Photo of the 12th Man Hall in the 90 22 Memorial Student Center 23 28 Pictures of the 12th Man Rally Towels 91 24 29 Photo of the Section of the Stadium that 92 Displays the "Home of the 12th Man" 25

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5 1 EXHIBITS CONTINUED 2 30 Sports Illustrated Article Dated 1983 92 3 and Entitled "College and Pro Football Spectacular" 4 31 "Dude Perfect Video. World's Longest 94 5 Basketball Shot." (On USB Drive) 6 32 Video on USB (Skipped, Not Attached.) 7 33 Video on USB (Skipped, Not Attached.) 8 34 Video on USB (Skipped, Not Attached.) 9 35 Screenshots of the Dude Perfect Videos 96 10 36 (Skipped and Not Attached) 11 37 (Skipped and Not Attached) 12 38 Video of Johnny Manziel's Heisman Trophy 107 Acceptance Speech [On USB Drive] 13 39 Article out of Sports Media Watch 108 14 40 Website Entitled "Topbet Sports Betting 109 15 Tips, News, and Analysis" 16 41 Article Out of the Sports Section in the 110 Dallas News from February of 2015 17 42 Article by National Sports Writer George 112 18 Schroeder 19 43 Picture of a Branded State of Texas, 112 Texas A&M License Plate 20 44 Dallas Morning News Article Regarding 113 21 the License Plate 22 45 Blog Post from TexAgs 115 23 46 12th Man Foundation Facebook Page 116 24 47 Post Off of the Reddit Blog 117 25

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6 1 EXHIBITS CONTINUED 2 48 Post Off of the Reddit Website Entitled 118 3 "Home of the 12th Man, Removed from Seattle CenturyLink Field" 4 49 Texas A&M Athletics Facebook Page 118 5 50 Instagram Social and Media Account of 119 6 Texas A&M Athletics 7 51 Official Twitter Account of Texas A&M 119 Athletics 8 52 Official Texas A&M University Pinterest 120 9 Account 10 53 Official Twitter Account of Texas A&M 121 University 11 54 Search on Twitter for Hashtag 12th Man 121 12 and @TAMU 13 55 Results of Search on Twitter for Hashtag 122 TAMU and Hashtag 12th Man 14 56 Twitter Search for the Word "Texas#12th 122 15 Man" 16 57 Texas A&M Athletics YouTube Page 123 17 58 Depict All of the Products That Are 125 Branded with 12th Man 18 59 Table Referencing a Representative 142 19 Sampling of Some of the Infringers of the 12th Man Mark and Enforcement Action 20 Taken 21 60 Cease and Desist Letter to Aggie Student 143 Painting 22 61 Cease and Desist Letter to 146 23 Aggielandtickets.com 24 62 Cease and Desist Letter to Aggswaggear 147 25

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7 1 EXHIBITS CONTINUED 2 63 Cease and Desist Letter Sent By the 147 3 Collegiate Licensing Company to Around Aggieland 4 64 Cease and Desist Letter to Atkinson 147 5 Toyota 6 65 Cease and Desist Letter to the Cake 148 Junkie 7 66 Cease and Desist Letter Sent to Celtic 148 8 Realtors 9 67 Cease and Desist Letter sent in November 149 of 2010 to a Chevy Dealership in Dallas, 10 Texas 11 68 Cease and Desist Letter Sent to 149 Montelongo's Fine Jewelry 12 69 Cease and Desist Letter sent on February 150 13 of 2012 to Fabulous Fare 14 70 Cease and Desist Letter Sent to Fat 151 Burger Grill 15 71 Cease and Desist Letter Sent by Our 150 16 Licensing Agency on November 20th, 2014 to Chasing Trends 17 72 Cease and Desist Letter Sent on January 151 18 of 2014 19 73 Cease and Desist Letter Sent to Kate's 151 Coasters 20 74 Cease and Desist Letter From Our 152 21 Licensing Agency, Sent on January of 2013 to Kroger 22 75 Cease and Desist Letter From Our 152 23 Licensing Agency Sent on February 5th of 2014 to a Company Located in Hawaii 24 76 Cease and Desist Letter Sent to Party 155 25 Time Rentals

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8 1 EXHIBITS CONTINUED 2 77 Cease and Desist Letter Sent to Polaris 155 3 Fun Center 4 78 Cease and Desist Letter sent in 156 September of 2009 to Reebok 5 International 6 79 Cease and Desist Letter Sent on February 156 of 2014 to Arcade Designs 7 80 Cease and Desist Letter Sent in February 157 8 of 2014 to Ten Club 9 81 Cease and Desist Letter Sent to 157 Ms. Rebecca Boenigk 10 82 Cease and Desist Letter Sent to TNT 158 11 Graphics Pro 12 83 Cease and Desist Letter Sent in June 159 of 2015 to Want This Tee 13 84 Cease and Desist Letter Sent in April 159 14 of 2014 to the Ware County Touchdown Club 15 85 Complaint that Texas A&M Filed Against 162 16 the Seattle Seahawks in 2006 17 86 Story by Jeff Caplan, Dated 163 January 30th, 2006 Entitled the "12th 18 Man campaign irks Texas A&M" 19 87 Settlement Agreement between Texas A&M 165 and the Seattle Seahawks 20 88 Cease and Desist Letter Sent to 167 21 Montelongo's Fine Jewelry 22 89 News Article that says 12th Man Lifts 177 CenturyLink Field into Guinness World 23 Record Book for Loudest Stadium 24 90 News Article Released by the NFL 178 25

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9 1 EXHIBITS CONTINUED 2 91 Article in USA Today, Written by a 179 3 Reporter with the Associated Press and picked up by USA Today, Dated January 4 of 2014. The headline is "Johnny Manziel takes a shot at Seattle's 12th 5 Man" 6 92 Article in the Houston Chronicle Dated 180 January 22nd, 2014 7 93 Sports Blog Nation Post 181 8 94 Washington Post Article Entitled 184 9 "Seattle Seahawks moving away from Texas A&M Home of the 12th Man," Dated August 10 of 2015 11 95 CBS Sports Article Dated August of 2015 185 12 96 Article in Forbes 186 13 97 Copy of the Trademark Complaint Filed 189 Against the Indianapolis Colts 14 98 Houston Chronicle Article Dated November 190 15 of 2015 16 99 Video [On USB Drive] 191 17 100 Settlement Agreement With the 199 Indianapolis Colts 18 101 The New Seattle License Agreement 201 19 102 Texas Tribune News Article Dated August 203 20 of 2016 21 103 Collection of National Articles 203 22 104 More Examples of National Publications 204 - Referencing the New Agreement Between 23 107 Seattle and Texas A&M Regarding the 12th Man Trademark 24 110 Various Cease and Desist Letters 210 25 - Prepared by Outside Counsel

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10 1 EXHIBITS CONTINUED 2 157 Opposer's Notice of Examination of 14 3 Shane Hinckley...... 4 158 Screenshots From the Texas A&M Athletic 63 Website 12thMan.com 5 159 Texas A&M University's 12thMan.tamu.edu 55 6 Website 7 Changes and Signature...... 217 8 Reporter's Certificate...... 219 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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11 1 (All exhibits were premarked before the 2 deposition commenced.) 3 THE REPORTER: Pursuant to the Rules. 4 Is this Federal or State? 5 MR. CAIN: This is Trademark Trial and 6 Appeal Board, so I guess it's Federal. But it's 7 administrative, as opposed to in an actual court. 8 Have you been sent the caption? 9 THE REPORTER: Yes, I have it. 10 SHANE HINCKLEY, 11 having been first duly sworn, testified as follows: 12 EXAMINATION 13 BY MR. CAIN: 14 Q. Please state your name. 15 A. Shane Hinckley. 16 Q. And where are you employed, Mr. Hinckley? 17 A. Texas A&M University. 18 Q. What is your title? 19 A. Vice president of brand development. 20 Q. Can you briefly give me an overview of your 21 job description, your responsibilities, as vice 22 president of brand development -- 23 A. Yes. 24 Q. -- at a high level. 25 A. In my division we oversee the strategy and

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12 1 implementation of our brand and our brand message, 2 which involves areas of communications, public 3 relations, creative marketing, digital web and social 4 media. We also apply that brand message in a retail 5 and interactive component through the licensing of our 6 trademarks. 7 Q. And what are -- how many trademarks does 8 Texas A&M have? 9 A. We have more than I can remember at the 10 moment, but at least 30 or 40, I would imagine. 11 Q. And what are the -- the most significant or 12 most well-known or most -- most valuable? 13 A. Sure. There's two that are the most 14 prominent. I would say, aside from our name Texas 15 A&M, the most prominent or prevalent trademark we have 16 is the 12th Man. Those are the two that stand out the 17 most -- most widely recognized. 18 Q. What is the next most widely recognized 19 beyond that? 20 A. Well, you have some logos. That would be the 21 logo of our block TAM mark that represents Texas A&M. 22 You also have some other phrases that are recognized, 23 things like Gig 'em, things that Texas A&M fans say. 24 We have other marks. Our mascot mark, which would be 25 Reveille. We also have marks associated with our

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13 1 Corps of Cadets, our Aggie ring, and the list goes on 2 and on. 3 Q. So as the vice president of brand 4 development, are you the person at Texas A&M who is 5 ultimately responsible for filing, prosecution, and 6 maintenance of the trademarks? 7 A. Yes, I am. 8 Q. And does that include the trademark 12th Man? 9 A. Yes, it does. 10 Q. Are you the person at Texas A&M who is 11 most -- or who is ultimately responsible for the 12 licensing, the oversight of quality control, and the 13 -- working with third-party vendors with respect to 14 the trademarks of Texas A&M? 15 A. Yes, I am. 16 Q. Does all that include the 12th Man mark? 17 A. Yes, it does. 18 Q. As the vice president of brand development, 19 are you the person at Texas A&M who is ultimately 20 responsible for trademark watching services, 21 enforcement, and litigation related to trademarks? 22 A. Yes, I am. 23 Q. And does that include the 12th Man trademark? 24 A. Yes, it does. 25 Q. As the vice president of brand development at

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14 1 Texas A&M, are you the person who is ultimately 2 responsible for the overall brand strategy and the 3 awareness of third parties and their relationship -- 4 or their understanding of the trademarks of Texas A&M? 5 A. Yes, I am. 6 Q. And that includes with respect to the 12th 7 Man? 8 A. Yes, it does. 9 Q. Let me show you -- you are testifying here 10 today on behalf of Texas A&M University; is that 11 correct? 12 A. That's correct. 13 Q. And you have -- you're here as -- in response 14 to a notice of examination in this trademark 15 opposition proceeding; is that correct? 16 A. That's correct. 17 Q. Let me show you what -- and just for the 18 record, some of the exhibits that we use today will be 19 out of order. For the most part they will be in 20 order. I will try to note whenever we're using an 21 exhibit that's out of order, and we'll try to 22 reference not only the exhibit number but the Bates 23 Nos. As we go. 24 (Exhibit 157 offered.) 25 Q. (BY MR. CAIN) Let me hand you what has been

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15 1 premarked as Opposer's Exhibit No. 157. It is a 2 multipage document bearing Bates Nos. TAMU 1369 3 through 1375. Do you recognize and have seen this 4 document before? 5 A. Yes. 6 Q. And this is the actual notice of examination 7 of you for the testimony today, correct? 8 A. Correct. 9 Q. If you'll flip over to page 1371, where it 10 references Opposer's Rule 26(a)(3)(a) pretrial 11 disclosures. Have you seen that document before? 12 A. Yes, I have. 13 Q. And you'll note that as you look through that 14 document it includes a number of topics to be 15 discussed in your testimony today. Do you see that? 16 A. Yes, I do. 17 Q. Have you reviewed that list? 18 A. I have. 19 Q. And are you prepared to talk about every 20 topic that is listed in this pretrial disclosure? 21 A. Yes, I am. 22 Q. Okay. Let's start -- I'd like to just get 23 some background information on you. 24 A. Okay. 25 Q. Can you give me just an overview of your

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16 1 educational history after high school. 2 A. Sure. I have an undergraduate and a graduate 3 degree from Utah State University. I also have 4 certificates in various different areas of study; 5 international relations, human resource management, 6 political science, as well as those degrees I've 7 mentioned. 8 Q. And what were your degrees in, your 9 undergraduate -- 10 A. So my undergraduate degree was a political 11 science degree with a certificate in international 12 relations. And my graduate degree was in human 13 resource management. 14 Q. And after leaving college, can you give me 15 just an overview of your work history. 16 A. Sure. So after leaving college, I worked in 17 the retail industry for approximately ten years; 18 worked for a company called Hastings Entertainment. 19 During that time I had the opportunity to conduct my 20 first licensing deal with Lucas Arts for the movie 21 "Phantom Menace." It was the first time that Lucas 22 Arts had ever pre-released images from the film in a 23 licensing capacity, so it was kind of a first for 24 them, as well as for myself. 25 After the -- my work in retail and

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17 1 marketing, I began to work for higher education at the 2 University of Utah. I had the opportunity to oversee 3 both their retail operations in the bookstore as well 4 as oversee their trademark and licensing 5 responsibilities at the University of Utah. 6 During that time I was able to have 7 several licensing and trademark interactions. One 8 specifically was with the U.S. Olympic Committee and 9 the Olympic Organizing Committee. The Winter Games 10 were held in Salt Lake City on our campus, in our 11 stadium, opening and closing ceremonies, and I was 12 able to negotiate the first co-licensing deal with the 13 Olympic Committee, to my knowledge, in their history, 14 combining University of Utah marks and Olympic marks. 15 Q. And when did you graduate with your -- do you 16 have a master's degree? 17 A. I do. 18 Q. So when did you graduate with your master's 19 degree? 20 A. Now, you're showing my age. I don't -- I 21 don't remember exactly. It was -- it was in the '90s. 22 It would have been early to mid-'90s. And during that 23 time I was also employed by Hastings. So I was 24 working concurrently. 25 Q. When did you begin your employment with

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18 1 Hastings? 2 A. 1990, while I was an undergraduate. 3 Q. And you worked for Hastings for about ten 4 years? 5 A. Till 1999. '90, to '99. 6 Q. So 1999, is that when you joined the 7 University of Utah? 8 A. That's when I joined the University of Utah, 9 and I worked for them till about 2008. I had the 10 opportunity to do other licensing components there. 11 I worked with licensing -- the first catch-phrase BCS 12 Busters for the University of Utah when they broke the 13 bowl championship series as a non-power 5 school. I 14 was involved in licensing the likes and images of 15 coaches. Coach Jim Borland at the time, the 16 basketball coach, also helped Urban Meyer use his 17 likeness in some marketing opportunities. So I kind 18 of started my portfolio of understanding trademark 19 licensing and rights of publicity and images in the 20 industry. 21 Took that opportunity and started to work 22 with professional organizations at the national level, 23 specifically the International Collegiate Licensing 24 Association. 25 Q. When did you begin working with the

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19 1 International Collegiate Licensing Association? 2 A. I would say soon after my arrival at Utah, 3 possibly '91. 4 Q. And what did you do in association with the 5 International Collegiate Licensing Association? 6 A. That was a collection of all of the 7 universities across the country, as well as the 8 vendors that were licensees of that industry. Both in 9 athletics, outside athletics, products, and then 10 worked with retailers. So in that capacity, I served 11 as a board member for six years, served as the 12 president of the organization for one year, and served 13 as a -- members of various committees offering 14 professional development to colleges and mentoring 15 colleges within the organization. I'm still active 16 today in the organization as well. 17 The topic -- the topics in that 18 organization would be enforcement of -- of licensing 19 and trademarks. It would be promotion of your -- of 20 your trademarks, how to generate business and revenue 21 from your trademarks. All of those areas were courses 22 of topic of discussion and professional development. 23 Q. And in your role at the University of Utah, 24 you had direct oversight with respect to all of those 25 activities in terms of licensing products that had

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20 1 university logos and university trademarks? 2 A. That's correct. We oversaw the entire 3 program for licensing to third parties, as well as 4 managing the brand in any type of B-to-B sponsorship 5 relationship or giving brand input on to how the brand 6 was portrayed to the general public. 7 Q. What types of actual products were branded 8 with University of Utah trademarks? 9 A. I think it's easier to ask me what type of 10 products were not branded. We did everything. We 11 might not have done cars, but we did motorcycles and 12 we did various components from lamps to snow globes, 13 to T-shirts, to hats, to home decor, to dishes, 14 plates, perfumes, soaps, anything you could think of. 15 Q. And were all of those materials sold in the 16 university bookstore? 17 A. Most of them were sold in the bookstore. 18 Some were licensed as exclusives to other retailers. 19 But you could find a majority of them in the 20 University of Utah bookstore. 21 Q. So you could also find them outside the 22 bookstore in other locations? 23 A. Yes, that's correct. We didn't just work 24 within the bookstore, we worked with our retailers 25 that helped us convey the brand. We also did

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21 1 licensing deals for products that weren't for sale, 2 products that were promotional based, marketing based 3 in support of marketing efforts either for our 4 partners or for the university. 5 Q. What types of product are you talking about? 6 A. So at times you could have possibly a 7 sponsor, perhaps AT&T becomes a sponsor of an athletic 8 event. And in Utah it was cold, so in November you 9 would attend a game and you would get a red 10 AT&T/University of Utah co-branded scarf that you 11 didn't have to pay for, things like that. 12 Perhaps the hospital was opening a new 13 wing at the University of Utah Hospital, and you would 14 have new -- it was a new infant pediatric center, and 15 we would co-brand the -- or brand University of Utah 16 Onesies for newborns and infants, and they were given 17 away to all the children that were born within the 18 infant facility there. 19 Q. How would you describe the scope of the -- of 20 the use of the University of Utah brands in terms of a 21 national basis? Was it localized to Utah or did it go 22 beyond borders? 23 A. So at that time I would describe Utah as what 24 I would describe as an emerging brand. The University 25 of Utah was well-known within the state, but it

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22 1 probably hadn't gained notoriety outside of the Rocky 2 Mountain Pacific Northwest area. But during my time 3 there that brand grew, especially into a national 4 athletic brand. I think athletics helped move the 5 university's brand to the next level when they became 6 the first -- as I offered earlier -- BCS Busters. 7 Some attention on coaches like Rick Majerus making the 8 national championship games in basketball, Urban Meyer 9 in football. We gained some national attention pretty 10 quickly and grew that program in both scope and value 11 for the brand. 12 Q. So at what point did you -- so when you left 13 University of Utah, is that when you transferred to 14 Texas A&M? 15 A. Yes. So in -- in the course of my work with 16 other schools, I met my counterpart at the -- at Texas 17 A&M University. During that time we discussed various 18 activities, compared notes, so to speak. I told him I 19 was familiar with the university -- or Texas A&M 20 University's 12th Man trademark. It was very 21 prominent in Utah and I had heard about it, knew about 22 it. And we talked about how his enforcement efforts 23 were, some of the branding elements that he did, 24 compared notes. That was common discussion. 25 And through that course of discussion

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23 1 over time, he actually recruited me to come and 2 replace him as he moved on to another job, and that's 3 how I arrived at Texas A&M University. 4 Q. So when you arrived at Texas A&M, when was 5 that? 6 A. It was -- started the interview process in 7 2007 and officially started in March of 2008. 8 Q. And what was your title when you first 9 joined? 10 A. Assistant vice president of business 11 development. 12 Q. Who did you report to? 13 A. At that time I reported to the vice president 14 of marketing and communications. 15 Q. How long did you hold the title of assistant 16 vice president of business development? 17 A. From 2008 to 2013. 18 Q. And then what -- what did your title become 19 in 2013? 20 A. So in 2013 I was promoted interim vice 21 president of marketing and communications. I held 22 that interim vice president position for three and a 23 half years. And then last year, in early 2016, I was 24 promoted to vice president of brand development. 25 Q. So as the vice president of brand

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24 1 development, you have personal knowledge of trademark 2 filings, prosecutions, and maintenance? 3 A. I do. 4 Q. For all the trademarks of Texas A&M? 5 A. Yes, I do. 6 Q. And you also have institutional knowledge, 7 the knowledge of Texas A&M with respect to the filing, 8 the prosecution, the maintenance of these trademarks? 9 A. Yes, I do. 10 Q. And do you have both personal knowledge and 11 the institutional knowledge of Texas A&M with respect 12 to the licensing and the oversight of quality control 13 in the working with your third-party vendors with 14 respect to trademarks? 15 A. Yes, I do. 16 Q. And do you have both personal knowledge and 17 the institutional knowledge of Texas A&M with respect 18 to trademark watching and enforcement and litigation 19 regarding trademarks? 20 A. Yes, I do. It actually takes up a lot of my 21 time. 22 Q. What percentage of your time these days is 23 spent with trademark watching, enforcement, and 24 litigation? 25 A. I would say in the role -- because I oversee

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25 1 a lot of things -- it is something that I deal with on 2 a -- definitely a weekly basis, some weeks even daily. 3 Q. And in your role as vice president of brand 4 development, do you have personal knowledge and the 5 institutional knowledge with Texas A&M with regard to 6 the overall brand strategy and awareness of 7 third-party reactions to the trademarks of Texas A&M? 8 A. Yes. Part of our brand strategy is to mix 9 both the promotion, the analysis of how our brand is 10 portrayed in the marketplace and craft our enforcement 11 strategy around those. So they're an all woven 12 together as part of one overall strategy. 13 Q. Can you describe for me your department at 14 Texas A&M? 15 A. Sure. So the division I'm in, it has 37 16 full- and part-time people. I report directly to the 17 senior vice president, chief communication and chief 18 marketing officer of Texas A&M. Within the division 19 of marketing and communications, I have an oversight 20 of -- I have four direct reports and will have 12 21 employees total, including those direct reports, plus 22 several part-time and student employees underneath me. 23 Q. A minute ago you said that from 2013 to 2016 24 you were an interim vice president of marketing and 25 communication?

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26 1 A. Yes. 2 Q. And then now you report to the senior vice 3 president of communications? 4 A. Yes. 5 Q. What -- what role did you have in the 2013 to 6 2016 time frame with respect to communications? 7 A. Sure. So at that time I reported directly to 8 the president of Texas A&M. I was part of -- and 9 still am part of their senior executive administrative 10 team. We were involved in a small group that led all 11 communications, public relations, strategy, and 12 marketing, as well as branding of the university. 13 Our unit was there to support the various 14 goals of the university, whether it be academic, 15 student oriented, whether it be fund-raising, donor 16 oriented, whether it be brand and external exposure 17 community relations. Our unit oversaw all of those 18 under my time as interim, and I'm still involved 19 heavily in those responsibilities today in my current 20 role. 21 Q. So are you aware generally of any 22 communications, either outside of Texas A&M or from 23 Texas A&M relating to Texas A&M trademarks? 24 A. Yes. As a matter of fact, we have both media 25 watch services. We have trademark watch services. We

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27 1 are actively compiling daily reports of mentions of 2 Texas A&M in the media, in trade journals, in the 3 marketplace, on blogs, online, and we review that 4 daily. 5 Q. And what's the purpose of that type of 6 review? 7 A. The purpose of that is to assess our brand 8 performance, assess the -- how our brand is perceived 9 in the marketplace, both at a regional and a national 10 level. And it's also -- it gives us the ability to 11 measure against certain matrix, the work that we do 12 within marketing and communications, to determine if 13 we're able to move the needle in terms of how we're 14 perceived. 15 Q. And so in addition to helping craft the 16 message from Texas A&M, you have direct knowledge of 17 unsolicited communications from outside Texas A&M 18 regarding Texas A&M; is that correct? 19 A. That's correct. So one of the nice things 20 about working at Texas A&M is the Aggie network. And 21 specifically in the area of communications in terms of 22 use of our mark or use of our brand. We have a lot of 23 former students who understand how important our 24 trademarks and our logos and our brands are to us, and 25 they are constantly letting us know when they're aware

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28 1 of improper, unauthorized use. We have a team that 2 monitors that on social media. We have -- we read 3 about news stories, we read trade journals. We're 4 very in the know in terms of where and when we're 5 mentioned and whether it's a good mention, a bad 6 mention, an unauthorized use or an authorized use. 7 Q. And typically if you find there's 8 unauthorized use of Texas A&M trademarks, what actions 9 do you take? 10 A. Well, we have a process in place. We've 11 established a process because it happens frequently. 12 Our process is we gather the data, we then review the 13 data and pass it along to our general counsel. And if 14 we feel there's an actionable item, we will ask our 15 general counsel to help us reach out to the entity to 16 cease use. Depending on the situation, we may give a 17 phone call and then follow-up with the cease and 18 desist. But most of the time we're able to educate 19 the third party and let them know that their use has 20 been unauthorized and we need them to stop, and that's 21 usually enough. 22 In rare instances we have do have to 23 proceed to further steps which can involve litigation, 24 and we always try to do that as a last resort. But 25 our brand is invaluable, and it's extremely important

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29 1 that we protect it. 2 Q. So your initial step is typically with -- 3 with -- when you're dealing with unauthorized use of 4 Texas A&M trademarks, your first step is to try to 5 handle it within your department? 6 A. We do. We do take an approach of we would 7 rather educate and reach out, and that -- that 8 internal view is that if it's somebody we know or have 9 a relationship with, it's easier for us to make a 10 phone call or an email. We've recently, in certain 11 cases, asked our legal counsel to generate some 12 letters on our behalf that are more friendly in 13 nature, explaining our use, explaining our rights, 14 asking them to respond and say, you know, we're not -- 15 we don't want to take you to court. In some cases 16 we'll say we want to waive fees, all we want you to do 17 is stop using our mark. And for the most part, people 18 respond. We have a lot of cases that fall under this 19 category, and I have a team that works for me that 20 does this full-time. 21 Q. So if -- if you have a situation that goes -- 22 where you're not able to handle the situation either 23 internally in your department or through the general 24 counsel's office, what other avenues do you have to 25 deal with unauthorized use?

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30 1 A. So we have some resources. We have resources 2 in terms of -- we have an agency that oversees our 3 licensing process. There are times that we will use 4 that agency to reach out on our behalf. That agency 5 is IMG Collegiate Licensing, formerly known as the 6 Collegiate Licensing Company. We will also use 7 outside counsel to represent us on cases that are 8 involved with our higher profile marks. Specifically 9 in this case all of our 12th Man issues are -- we work 10 with outside counsel on. 11 Q. Do you have oversight at Texas A&M with 12 respect to licensing of products and sale of products 13 through bookstores similar to your tenure at 14 University of Utah? 15 A. I do. And in that regard we have a 16 relationship that's broad and deep with retailers at a 17 national level, at a regional level, and at a local 18 level. So much so that we are constantly, in our role 19 of overseeing that program, we are traveling on a 20 regular basis. We are bringing those -- we call them 21 partners together, the licensee, the retailer, the 22 vendor, and we're working on ways that we can create 23 licensed programs to help promote our brand as a 24 touchpoint in the marketplace and help the retailers 25 and the vendors see a good return on investment for

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31 1 being a licensee with Texas A&M. 2 Q. What types of products are licensed for sale 3 using Texas A&M trademarks? 4 A. It's going to be the same answer that I gave 5 you earlier. We haven't licensed a car yet at Texas 6 A&M, but we've licensed just about everything else: 7 Clothing, house decor, dishware, children's clothing, 8 toys, consumables, financial services, perfumes, 9 soaps, you know, you name it; cups, glassware, 10 drinkware, boots, belt buckles, decorations for your 11 wall, for your front porch, mailbox covers, it goes on 12 and on and on. We've even licensed covers that go 13 over your -- that go over your air conditioner on the 14 outside so you can have an air conditioner that's 15 branded Texas A&M if you want. 16 Q. And are those -- those products sold on 17 campus in the Texas A&M bookstore? 18 A. They're sold everywhere. They're sold in our 19 bookstores, in our regional stores that are -- you 20 know, people from the local community have started. 21 They're sold at national retailers everywhere. For 22 example, Walmart, Target, Kohl's, Sears, JCPenney's, 23 and then they're sold online worldwide from websites 24 like Amazon, Fanatics and various components of 25 retailers I just mentioned.

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32 1 The volume of those sales currently at 2 retail are approximately $85 million in retail sales, 3 approximately. And that brand value has grown 4 significantly since I came here in 2008. 5 Q. So the 85-million number you just offered, is 6 that for all licensed sales in the year -- 7 A. That's for all -- 8 Q. -- in one year? 9 A. -- for all licensed sales in one year at 10 retail. 11 Q. For all trademarks? 12 A. For all trademarks, that's correct. 13 Q. Do you have a feel for what percentage of 14 that $85 million per year is the 12th Man trademark? 15 A. The 12th Man trademark, while we don't 16 currently have the ability to track exactly by 17 trademark, the 12th Man trademark is applied and used 18 in a lot of products and a lot of promotions that we 19 have sponsorships with, so I would also include goods 20 and services in that capacity. 21 And we have a lot of sponsors that pay us 22 for licensing agreements, that pay us upwards of six 23 figures just for that company's use. So we can go -- 24 we can talk about hats or we can talk about financial 25 services or we can talk about sponsorships. And at a

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33 1 various level, I would say that it's significant. 2 It's certainly the most recognized and most cherished 3 trademark at Texas A&M. 4 Q. So of all the trademarks, do you -- do you 5 believe that the 12th Man trademark is the most 6 valuable? 7 A. I -- I believe that it's of equal value to 8 our primary brand, which is our block ATM. So 9 together those two would be our most valuable marks. 10 Q. Let's talk about your personal knowledge of 11 the 12th Man trademark. When did you first become 12 aware of the 12th Man trademark? 13 A. Well, that's an interesting question. So I 14 grew up in Nebraska, born and raised; and in Nebraska 15 we followed Nebraska football. There's no other 16 sports team in the state. And I can remember in the 17 early '80s watching college football on TV and seeing 18 Texas A&M play a game on national TV, and I remember 19 them talking about the 12th Man Kickoff Team and 20 talking about the 12th Man tradition at Texas A&M. 21 And I must have been 14, maybe 15 at the most, years 22 old, and that stuck with me. I thought that was the 23 coolest thing I had ever heard. So just as a -- in a 24 casual fan growing up of sports, I heard about it, I 25 remembered it.

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34 1 And then, obviously, when I was at the 2 University of Utah, when Texas A&M sued Seattle. 3 Seattle is in the Pacific Northwest, close to Salt 4 Lake City, that was huge news. And everybody heard 5 about that lawsuit and about the fight over the 12th 6 Man mark. And it was -- and I knew just from my 7 history, I was like, well, Texas A&M has owned that 8 mark for a long time so I don't think there's going to 9 be any problem there. But I've known about the mark 10 long before I came to work here at Texas A&M. 11 Q. So now that you're the vice president of 12 brand development at Texas A&M, do you have 13 institutional knowledge of Texas A&M with respect to 14 the history of the 12th Man trademark? 15 A. I do. Matter of fact, I've had to because 16 it's such -- it's such an empowered and powerful brand 17 for us that in my role, you better know your history 18 or you're not going to be able to do your job. So 19 yes, I have -- I have knowledge of that. 20 Q. And was that knowledge developed before the 21 current trademark proceedings that we're dealing with? 22 A. Oh, absolutely. As I -- as I gave 23 anecdotally, I was aware of it both as a -- as a -- 24 just a general person in the public. Then when I was 25 working in the industry at another institution I was

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35 1 aware of it. And then became aware of it immediately 2 when I came to Texas A&M in 2008 because we were just 3 dealing with year one of our licensing agreement that 4 we settled with the Seattle Seahawks on the 12th Man. 5 And we were actively using it to promote different 6 activities here on campus from day one. So I've been 7 aware of it from day one on the job. 8 Q. So with respect to the licensing efforts with 9 third-party vendors, with manufacturers, and then with 10 your license with Seattle, you've been activity 11 involved in licensing efforts and oversight of 12th 12 Man since day one when you started -- 13 A. Yes, since -- 14 Q. -- at Texas A&M? 15 A. -- day one of my job, every single day. 16 Q. Let's talk about just the -- some of the 17 history of 12th Man at Texas A&M and have you identify 18 some of the key documents for me. 19 (Opposer's Exhibit 1 offered.) 20 Q. (BY MR. CAIN) So I am going to hand you what 21 has been offered as Exhibit No. 1. It has Bates Nos. 22 TAMU 0001 through 17. Can you identify this for me? 23 A. Opposer's Exhibit 1 is a book entitled "The 24 Twelfth Man" by Wilbur Evans and H.B. McElroy. 25 Q. That's the book?

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36 1 A. Yes. 2 Q. And the book is actually sitting here on the 3 table for your reference. 4 A. So this exhibit has excerpts from the book. 5 The book talks about the story of the 12th Man as it 6 relates to Texas A&M and Texas A&M Athletics, 7 football. I think that the book is important because 8 it shows that the authors -- one of the authors was 9 the vice president and general manager of the Cotton 10 Bowl Athletic Association in Dallas. And he also 11 twice served as the Texas Sports Writers Association, 12 as well as the national president of the College 13 Sports Information Directors of America. He was -- at 14 this time, he was involved in a national organization 15 that was not connected to Texas A&M. And he also had 16 co-author of H.B. McElroy who was the sports 17 information director at Texas A&M who worked on the 18 book with him as well. 19 Q. And you said at the time, when was this book 20 actually written? 21 A. The book has a copyright date of 1974. 22 Q. And do you recall if this -- how this relates 23 to the life of E. King Gill? 24 A. So the interesting thing about the book is 25 it -- it starts out at the very beginning talking

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37 1 about standing up for Texas A&M and it references on 2 page 10, it references -- "at Texas A&M you would have 3 enough enthusiasm, pride and loyalty to keep the 4 students -- and even their dates -- standing 5 throughout every football game." It talks about that 6 enthusiasm, pride and loyalty are traits to be found 7 in any -- in almost any successful program. But where 8 these qualities become a religion, as they have at 9 Texas A&M, they create a rather miraculous atmosphere 10 which can be best described as "The Twelfth Man" 11 spirit. 12 Q. You're referring to Bates No. Page 10? 13 A. Yes. 14 Q. Which is page 11 of the book? 15 A. Yes, page 10 in the exhibit, that's correct. 16 Q. Okay. 17 A. On page 11 of the book. 18 But the book also goes on to reference 19 the E. King Gill story. And it talks about how E. 20 King Gill is a player -- former player in another 21 sport, was in the stands one day and -- in 1922, when 22 Texas A&M was playing a post-season game and the coach 23 at the time, Dana Bible, had some injury problems and 24 needed a couple of extra players to suit up, but he 25 couldn't find enough and he knew about E. King Gill

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38 1 because he was another student athlete from a previous 2 sport, and he asked him to come down out of the stands 3 and suit up, which he did, and he stood ready on the 4 sidelines to go in and play the game, should he get 5 called on. He never was called on. But in honor of 6 that tradition of being ready to support the team, the 7 student body to this day continues to stand the entire 8 game and is known as the 12th Man. And E. King Gill 9 was the original 12th Man, started the tradition in 10 1922. And this book from 1974 references that 11 tradition. 12 Q. So for Texas A&M, there's the tradition of 13 the 12th Man and the tradition of standing. But at 14 some point, 12th Man also became a trademark of Texas 15 A&M, correct? 16 A. That's correct. And while it was used 17 regularly throughout the years by the school, you 18 could -- you could easily -- I mean, it's become a 19 common law mark and then it became a federally 20 registered trademark eventually at Texas A&M. 21 (Opposer's Exhibit 2 offered.) 22 Q. (BY MR. CAIN) Let's take a look at just a 23 couple of examples of some early use. Let me show you 24 Opposer's Exhibit No. 2, which is Bates No. 18. Can 25 you identify that?

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39 1 A. Yes. This is a photo from circa 1930 of Kyle 2 Field. It shows a football game. The stands are 3 filled, standing-room only, overflow standing room in 4 various areas. It's an aerial photo. And it shows 5 the Texas A&M band spelling out 12th Man on the field, 6 recognizing the 12th Man tradition at Texas A&M, circa 7 1930. 8 And this photo can be found also in our 9 library archives at the library here on campus, as 10 well as it's commonly found in other areas online now. 11 Q. What's the name of that library? 12 A. I believe it's the Cushing Library that has 13 the archives that this came from. 14 (Opposer's Exhibit 3 offered.) 15 Q. (BY MR. CAIN) Let me show you what's Exhibit 16 No. 3, which is Bates No. 19. 17 A. Exhibit No. 3 is a photo from Kyle Field in a 18 game in 1984, during about the same time that I 19 recognized the 12th Man Kickoff Team on national TV. 20 It shows Kyle Field has grown. The stadium is filled 21 to capacity. There's standing room only again. 22 There's tens of thousands of people, obviously, from 23 this shot; and the band is again spelling out 12th Man 24 on the field. You have the Texas A&M trademark at the 25 center of the field and also in the end zones. And so

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40 1 you've got 12th Man spelled out by the band next to 2 our trademarks. 3 Q. What do you know about the -- about the life 4 of E. King Gill after this incident in 1922 and how he 5 was viewed with respect to the university? 6 A. I know that E. King Gill was still a 7 prominent figure in university -- university lore, and 8 I know that E. King Gill participated in several 9 events after his life as a student here at Texas A&M. 10 And I know that there was -- so much so that the 11 university, you know, after his passing, has 12 memorialized E. King Gill with two statues of him 13 currently on campus, as well as numerous references in 14 archives, to photos of him, newspaper articles of him 15 telling the story as he's told it himself, and as well 16 as providing other -- other accounts of the E. King 17 Gill story. 18 And so I know that he's very -- very much 19 honored and revered at Texas A&M, and the story of how 20 he was ready to support his team and stand ready to go 21 in in a moment's notice is revered here, almost -- 22 almost a hundred years later. 23 Q. In preparing and pulling together examples of 24 use of 12th Man and some of the other documents that 25 we have here today, did you have some of the people

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41 1 working for you do some investigative work along those 2 lines? 3 A. So the answer is yes, but to describe 4 accurately the work that had to be done, we pulled six 5 full-time people together and we -- I organized them 6 into teams, and there was so much -- so much 7 information available to us from the various areas, 8 Cushing Library, online interactions, news and public 9 relations, media and news stories, both national and 10 local, video content from national pundits, talk 11 shows, programs that covered Texas A&M or events 12 nationally that involved Texas A&M, as well as social 13 media, fan pages, blogs, product that had been in the 14 marketplace, licensing agreements, litigation, legal 15 action. It took six full-time people working a solid 16 month to pull together thousands of pages of 17 information, and what we have here today is just a 18 sampling of that. 19 Q. And those six people that were working for a 20 month to pull together information, they were 21 specifically looking for information regarding the 22 12th Man? 23 A. Yes, this was the 12th Man. This was not our 24 other logos and our other brand. This was just 25 specifically the 12th Man.

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42 1 (Opposer's Exhibit 4 offered.) 2 Q. (BY MR. CAIN) And in the research that your 3 team did, did they find some actual archived papers of 4 E. King Gill? 5 A. They did. They found an archived speech that 6 he gave at our muster event. And if -- if -- I'm 7 referring to Opposer's Exhibit 4. And this was found 8 in the Cushing Library by one of our researchers, 9 Dr. Ann Kellett. And it's a manuscript of Dr. E. King 10 Gill's speech at the Aggie muster in 1964. 11 This document, he addresses -- if you 12 know anything about Texas A&M muster, it's a time when 13 we get together to remember those who have passed on 14 during that year, and it's a way of the Aggie family 15 to let them know that they're never forgotten. 16 Q. Is that on a particular date every year? 17 A. It is. It's April 21st of every year. 18 And this muster ceremony, it's a very 19 prestigious event to be -- to be invited to speak at. 20 And we have national speakers come to this. And on 21 this particular day Dr. Gill was asked to speak, and 22 he goes through this event and he tells the personal 23 story. And he talks about how Dana Bible came to him 24 in 1922. And at this time it was 42 years ago, so 25 he's remembering it 42 years later.

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43 1 But he talked about how there was about 2 10- to 12,000 people in the stands at the time that 3 this happened to him, and they were playing Centre 4 College who had won nine games and was considered at 5 the time the national champions. And the Texas A&M 6 Aggies came down and played them in that bowl game and 7 they ended up winning. But he gives a personal 8 account of his story, about how he was asked to go out 9 and stand ready on the field and how -- that it 10 affected his life. 11 He even talks about how humble, yet proud 12 he was, that he represented a group of, at the time it 13 was young men. At that time Texas A&M was all male, 14 but the student body. And that any one of them could 15 have been the twelfth man selected to come down and 16 stand. But that he needed to stand up for things that 17 were right and the traditions of this country and this 18 school, and he said it made him a better person, a 19 better doctor and a more responsible citizen, and that 20 he hopes that -- that the 12th Man tradition continues 21 in that line and it has. And it has almost a hundred 22 years later. 23 Q. And is this a typed-out speech? 24 A. It is a type-out speech, but it also has his 25 personal handwritten notes around it. So there are a

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44 1 couple of pages of his handwritten notes. There are 2 some typed-out parts. But he obviously gave it some 3 thought and it's in his hand. 4 Q. Now, this particular game in 1922, the Dixie 5 Classic, that was the precursor of what game? 6 A. I believe it became the Cotton Bowl. 7 Q. And referencing back to Exhibit No. 1, one of 8 the authors of that book was -- 9 A. Was the vice president of the Cotton Bowl. 10 And so he had -- he had personal historical knowledge 11 of the game. It was part of the history of the Cotton 12 Bowl. It's been included, and he was very aware of it 13 and called it out. 14 Q. And here in Exhibit 4 we have the actual 15 personal recollection of E. King Gill of that day? 16 A. Yes, that's correct. 17 (Opposer's Exhibit 5 offered.) 18 Q. (BY MR. CAIN) Let me show you what's been 19 offered as Exhibit No. 5, which is Bates No. 26. Can 20 you identify that? 21 A. Yes, Exhibit 5 is a photo. It's a photo of a 22 statue of E. King Gill on the Plaza outside Kyle Field 23 on Texas A&M University's campus. It also contains -- 24 and it's E. King Gill in his football uniform as he 25 stood ready to go in to the game, even though he was

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45 1 never called. And there's a plaque that talks about 2 the game, the Dixie Classic, and how he was called 3 from the stands. And he was a basketball player and a 4 former football team member, but this year he was not 5 on the football team. And so he suited up, never 6 entered the game. And it talks about the 12th Man 7 tradition. And it's become part of the special Aggie 8 spirit at Texas A&M. 9 Q. When was that statue erected? 10 A. This statue was erected approximately 2013 or 11 2014 during the remodel of Kyle Field. It's the 12 second statue of E. King Gill and not the first. 13 (Opposer's Exhibit 6 offered.) 14 Q. (BY MR. CAIN) Let me show you what's been 15 offered as Exhibit No. 6, which is Bates Nos. 27 16 through 29. Can you identify that? 17 A. Yes. So this is a news article out of the 18 local College Station Eagle newspaper. It's dated 19 August 12th, 2013. It shows a photo on top of the 20 article of the E. King Gill statue, which at the time 21 interim president, Mark Hussey, several Board of 22 Regent members from the Texas A&M Board of Regents, 23 and several board members from the 12th Man 24 Foundation, they are there at the ceremony to 25 recognize the newly created statue and celebrate the

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46 1 history of the 12th Man. 2 The newspaper article then shows actual 3 photo of E. King Gill that the statue is modeled 4 after. And it goes on to tell about the story of E. 5 King Gill and Dana Bible and the 12th Man. It also -- 6 it also tells a personal account from E. King Gill who 7 spoke, as we offered, at the 1964 muster. And he 8 spoke about how the tradition took off, even more than 9 it already had, around the 1939 season because Texas 10 A&M won the national championship that year. 11 And he said that a gentleman who was at 12 the game where he was called down from the stand, 13 E. E. McQuillen was asked to re-create an event that 14 would be suitable for radio. And the memory he used 15 was of Gill coming out of the stands. And from that 16 point on, when they heard that account on the radio, 17 students began standing for the entirety of the games. 18 And this was in the late '30s. And some of them had 19 already been doing that before. But this is when it 20 solidified, and that has been going on forever. It 21 also references the original statue of E. King Gill 22 that was donated to the school in 1980. 23 Q. So this Exhibit No. 6 and also the book that 24 we had looked at, Exhibit No. 1, to your knowledge, 25 are these accurate retellings of the --

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47 1 A. Yes, very accurate. 2 Q. -- 12th Man? 3 (Opposer's Exhibit 7 offered.) 4 Q. (BY MR. CAIN) Let me show you what's been 5 offered as Exhibit No. 7. It's Bates Nos. 30 through 6 35. Can you identify that? 7 A. Exhibit No. 7 is a national sports blog that 8 is entitled "Good Bull Hunting." The headline of this 9 sports blog reads: "The History of the 12th Man." 10 And it has a quote at the head of the blog, and the 11 quote reads as follows: "The feeling of the 12th Man 12 embraces more, however, than readiness to serve on an 13 athletic field. It includes a desire to upheld the 14 lofty ideals of the institution. It represents 15 complete loyalty to honor, comradeship to one another 16 and the deep feeling of personal pride in the program 17 of the school." And it's sourced from the 18 Bryan-College Station Eagle newspaper, 1942. 19 And the article goes on to talk about it 20 being an undisputed fact that the 12th Man belongs to 21 Texas A&M University, and reports on the story of the 22 12th Man team and the 12th Man season from 1921 that 23 culminated in the 1922 game at the Dixie Classic. And 24 what's interesting in this blog is there is a letter 25 from an individual, Mr. Tiny Keen, written to Red

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48 1 Thompson who was a Yell leader at that game -- excuse 2 me, the other way around -- it was from Red Thompson 3 written to Mr. Tiny Keen; and Red Thompson was a Yell 4 leader, class of '21, and he recalled events of that 5 day. 6 And in this letter that he writes to 7 Tiny, he talks about how -- he talks about the game, 8 he talks about the atmosphere, and he was standing on 9 the sidelines leading yells when Coach Bible came up 10 to him and told him to go up in the stands and get E. 11 King Gill. And he ran up in the stands, found King -- 12 E. King Gill, told him that coach wanted him now. And 13 he got down there on the sideline and the coach told 14 him take off his clothes and put on his football 15 uniform, and he needed -- he needed to be on the 16 sideline to stand for that day. 17 And so that -- that's a personal account 18 from Red Thompson, class of '21, to another person 19 about the E. King Gill story. 20 Q. And to your knowledge, is that an accurate -- 21 A. Yes, it is -- 22 Q. -- copy of the -- 23 A. It's actually a copy of the letter -- 24 THE REPORTER: Hold on. If you'll just 25 let him finish the question completely, we'll have a

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49 1 clean record. 2 THE WITNESS: I'm so sorry. 3 THE REPORTER: Thank you. 4 Q. (BY MR. CAIN) To your knowledge, is this an 5 accurate description of the story and of the 6 particular letter? 7 A. It is an accurate description of the story, 8 and the blog is not just a -- somebody else writing 9 the letter, it actually shows a picture of the actual 10 letter that was sent and written. 11 (Opposer's Exhibit 8 offered.) 12 Q. (BY MR. CAIN) I'll show you what's been 13 offered as Exhibit 8, Bates Nos. 36 and 37. Can you 14 tell me what this is? 15 A. Exhibit 8 is a newspaper article from an 16 Alabama newspaper, the prominent Alabama newspaper in 17 Birmingham. And the title of the article is "Who Is 18 The 12th Man for Texas A&M Aggies?" It's written by 19 Cheryl Wray. She is a reporter for -- that covers the 20 University of Alabama football team. And this article 21 talks about the upcoming game for Alabama in College 22 Station against Texas A&M. And it was dated 23 October 17th, 2015. 24 And in an effort to share with the 25 Alabama fans who are going to be watching the game or

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50 1 visiting Kyle Field, she talks about who is the 12th 2 Man, and why are those words emblazoned across the 3 side of Kyle Field? 4 She then recounts the history of the 12th 5 Man, E. King Gill's story, references the 1922 game 6 against Centre College, and then finishes the article 7 saying "that Aggie fans stay standing for the entire 8 game to symbolize their report and being a member of 9 the team." And then she references the 1980s when the 10 12th Man Kickoff Team was created, as I offered in my 11 personal knowledge from a teenager, in that article. 12 Q. And this is in a newspaper in Alabama? 13 A. Yes, this was a newspaper article from 14 Alabama. They were not associated with Texas A&M, and 15 it was not a Texas A&M sports beat writer. 16 (Opposer's Exhibit 9 offered.) 17 Q. (BY MR. CAIN) Let me show you what's been 18 offered as Exhibit No. 9. It's Bates Nos. 38 and 39. 19 A. Exhibit 9 -- Exhibit 9 is an article from a 20 local television station by Steve Fullhart, KBTX. 21 It's one of our local affiliate stations. And this 22 news article is dated January of 2017. 23 And Steve goes on and talks about how 24 almost 95 years ago, E. King Gill became Texas A&M's 25 first 12th Man. The story calls upon the 12th Man as

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51 1 a symbol of Aggies willingness to serve when called 2 upon and how the tradition has grown. 3 It also includes the new photo and 4 some -- what I would imagine -- would be some video if 5 you were to watch it online, the statue of the E. King 6 Gill being unveiled, the second statue that I offered 7 earlier. 8 The interesting piece of this to me that 9 we haven't discussed yet is that this article 10 references the fund-raising arm of Texas A&M 11 Athletics, and it used to be called the Aggie Club, 12 but it was renamed to the 12th Man Foundation. And 13 the 12th Man Foundation is responsible for ticket 14 sales and donations to Texas A&M Athletics. 15 And then it references also the 12th Man 16 towel being introduced to fans at Kyle Field in 1985, 17 and the 12th Man towel is a towel that fans who are 18 standing -- part of the 12th Man wave as they do their 19 yells, to show support to the team and intimidate the 20 opposing team. 21 It then goes on to reference the phrase 22 "Home of the 12th Man," being affixed to the student 23 section of Kyle Field, the most prominent, visible 24 trademark on -- when TV games are broadcasts, it's on 25 national TV and seen by millions of people every week

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52 1 that we have a home game. And then it references the 2 trademark that we acquired with the USPTO in 1990 for 3 12th Man. 4 Q. So these 12th Man towels, are those just used 5 for home games? 6 A. 12th Man towels are not. They are carried by 7 fans to every game away or home, and they're a 8 prominent part of the spirit and tradition. The 9 towels actually say "12th Man" on them, often have 10 trademarks -- other trademarks of Texas A&M or other 11 trademarks of third parties in association. Sometimes 12 we'll have a sponsor help provide those, and their 13 trademark will be on the towel. 14 For example, we did a licensing deal, 15 again, with Lucas Arts in Star Wars and we created 16 12th Man rally towels that were co-branded with the 17 Texas A&M 12th Man mark and Star Wars. And we've also 18 done it with our conference, the SEC Conference. One 19 year we had our national retailing partner, Walmart, 20 of Bentonville, Arkansas, the largest retailer in the 21 world. They were a sponsor and produced co-branded 22 Walmart and Texas A&M 12th Man towels that we gave out 23 over -- over 10,000, possibly as high as 20,000 towels 24 at a game co-branded in that way. And they recognized 25 our trademark and wanted to be a sponsor of that

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53 1 tradition. 2 Q. How many games since 1985 have these 12th Man 3 towels been used? 4 A. Well -- so if you average approximately 12 5 games per year, let's say, you can -- you can take 6 that 12 games times -- how many seasons is that? 7 Q. So are you saying it's been used in every 8 game since 1985? 9 A. Yes, it's been every game since. And the 10 12th Man towels have hundreds of thousands of units 11 produced every single year. They're given away, 12 they're sold in retail stores, they're a licensed 13 product, they're a sponsored product. They're a game 14 enhancement, fan enhancement product, and it's part of 15 the tradition. And it's in support of the 12th Man 16 and their willingness to stand ready, and it's another 17 aspect of how they can support the team. 18 (Opposer's Exhibit 10 offered.) 19 Q. (BY MR. CAIN) Let me have you identify 20 Exhibit No. 10. It's Bates Nos. 40 and 41. 21 I think this may have been pulled from 22 the Association of Former Students website. 23 A. I was looking at the article, Exhibit 10, and 24 I knew it was from a Texas A&M website. I wasn't sure 25 which of the three that reference our traditions it

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54 1 was from. But as I look at it, I recognize it from 2 the Association of Former Students website. And it 3 shows the 12th Man statue, the original statue that 4 was given to Texas A&M in 1980. I previously talked 5 about the second statue. The 12th Man was so 6 important that the class of '80 decided that they 7 needed to give a gift of E. King Gill. The statue was 8 prominently placed in the North Plaza outside of Kyle 9 Field. It became the number one fan -- both Texas A&M 10 fan and visitor picture destination on Texas A&M's 11 campus. Everybody came by to get a picture by the E. 12 King Gill 12th Man statue. 13 This statue, back in the day in 1980, it 14 was the cost of $22,000, but it was the entire class 15 gift. That's how much they thought of the 12th Man 16 tradition. And this statue now stands in Rudder Plaza 17 by the water fountain and people still take pictures 18 of it, even though the second E. King Gill statue, a 19 much larger and more prominent statue by Kyle Field is 20 there. Both of those statues are number one tourist 21 photo destinations on our campus. 22 The website -- or the exhibit also 23 talks -- takes some information from our website, from 24 the Association of Former Students' website, and it 25 talks about the entire tradition of Texas A&M. And it

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55 1 shows a photo of the Home of the 12th Man phrase 2 inside Kyle Field with all of our students standing, 3 just like E. King Gill during a football game. 4 (Opposer's Exhibit 159 offered.) 5 Q. (BY MR. CAIN) This is one that's a little 6 out of order, but this is Exhibit No. 159. It is 7 Bates Nos. TAMU 1832 through 1404. Can you identify 8 this? 9 A. Yes. Exhibit 159 is basically the Texas A&M 10 University's 12thMan.tamu.edu website. It's a 11 scrolled-down website that shows the entire history of 12 the 12th Man starting from 1922, with pictures of 13 E. King Gill in uniform, pictures of the newspaper 14 coverage of the game that day. It shows pictures from 15 1930, which we offered the band on the field. 16 Then it goes and talks about the 12th Man 17 song, which was written and produced in 1941, and on 18 the website there's actually a picture of a record -- 19 LP -- and the title said clearly "12th Man." 20 Q. If you flip back on page 1404, is that the 21 picture you're referring to? 22 A. Yes. On Bates page 1404, it says: "The 12th 23 Man." It also has the Texas A&M seal affixed to the 24 label. And it says: "The songs of Texas A&M by the 25 Singing Cadets," which is a student organization, "and

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56 1 the Aggieland Orchestra." 2 It goes on to talk about 1950 when the 3 12th Man Foundation formed. As we mentioned earlier, 4 they're responsible for ticket sales and fund-raising 5 efforts for Texas A&M Athletics. It shows -- it shows 6 a picture of the 12th Man Foundation logo, which we 7 can talk about more. I think there is an another 8 exhibit we'll talk about. 9 We also talk about in 1968, the student 10 section unveiled a banner that went across almost the 11 entire length of the midfield that said "the 12th Man 12 is here," recognizing they're carrying on the 13 tradition of the 12th Man and E. King Gill. And that 14 was in 1968, four years coincidentally after E. King 15 Gill gave his muster speech. And there's a photo of 16 that. 17 Then it references E. King Gill's passing 18 in 1974. In the newspaper article that talks about 19 how the original 12th Man passed away, and it talks 20 about his history in that newspaper article. It 21 references the 1980, first E. King Gill statue on 22 campus. And then it references a 1983 Kickoff Team 23 created by Coach Jackie Sherrell in which the entire 24 Kickoff Team was made up of walk-ons from the student 25 body, and all of them were -- came down out of the

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57 1 student section for tryouts and made that team. It 2 led the nation that year in kickoff return coverage, 3 which was a special thing. And there's a broadcast -- 4 also an ESPN national broadcast that talks about the 5 12th Man Kickoff Team on national television. It 6 references the 1985 12th Man towel that was created by 7 the students in honor of that tradition, accompanied 8 by a photo of the fans waving the towel by the banner 9 of the Home of 12th Man on Kyle Field. 10 Q. And from that photo, what percentage of 11 people in the stands appear to have those towels? 12 A. 100 percent, some even have two in their 13 hand. So it's more than a hundred. 14 In 1988, the prominent home of the 12th 15 Man phrase was permanently added to Kyle Field, and is 16 one of the most visible, iconic phrases in all of 17 sports today. 18 In 1990, the 12th Man Kickoff Team became 19 one player instead of the entire team. That one 20 player now is awarded No. 12 in honor of the 12th Man. 21 And that 12th Man is a walk-on from the student body, 22 and they are featured prominently, as that story is 23 told today, in kickoff coverage situations. We have 24 public announcers, national announcers, broadcasters 25 calling and telling the story of the 12th Man, and the

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58 1 camera is often focused on that player as they go down 2 the field to make a play during the kickoff. So that 3 story is retold every single week on TV. 4 Then in that same year, the 12th Man 5 trademark was issued to Texas A&M. References our 6 trademark certificates. In 1996, the 12th Man 7 trademark was declared incontestable. In 2006, the 8 ESPN analyst called the 12th Man student the best in 9 college football, honoring the 12th Man tradition; and 10 there's a video that plays showing that. 11 And then in 2006 it also referencing the 12 licensing agreement, settlement agreement we signed 13 with the Seattle Seahawks, allowing them to use the 14 12th Man trademark, where they acknowledged our 15 ownership of the mark. 16 2007, we signed a very, very limited deal 17 with the Buffalo Bills, also for use of the 12th Man 18 mark. It has extremely limited use within their 19 stadium. And then in 2011, it references our renewal 20 of our licensing agreement with Seattle. In 2011, 21 Sports Illustrated named Texas A&M the top game day 22 environment in college football due to the history and 23 the tradition of the 12th Man. 24 And then in 2012, the national profile of 25 Texas A&M was raised even higher as it talks about our

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59 1 move to the SEC Conference. Two years later, the 12th 2 Man statue in 2014, the new one was unveiled. And in 3 2014, the 12th Man flag started flying in Aggieland, 4 and there's a picture of the flag and it says "12th 5 Man," it's raised before every game. 6 And in 2014, Aggie Athletics, our old 7 athletic website, became 12thMan.com. In addition to 8 that, our social media sites for athletics also use 9 the handles of 12th Man. And then in Kyle -- in 2015, 10 Kyle Field was built and numerous articles referencing 11 Kyle Field as the new Home of the 12th Man with a new 12 remodel. And it was the largest remodel in collegiate 13 athletic history with a price tag of almost 14 $500 million. And the elements of branding of "Home 15 of the 12th Man" and "12th Man" are both on the inside 16 and outside of that facility. 17 This website goes on to talk about in 18 2016, our trademark lawsuit against Indianapolis 19 Colts, and then the settlement of that lawsuit over 20 the 12th Man. And then it references our 2016 new 21 licensing agreement with Seattle. It talks about how 22 many years it's been since E. King Gill started the 23 tradition. It talks about how Texas A&M has the 24 largest student attendance in college history in any 25 one game, in honor of the 12th Man tradition.

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60 1 It's been over 27 years since the USPTO 2 officially issued the certificate of registration for 3 the 12th Man trademark. And we have several 4 hundred -- this Web page has been counting our 5 infringement issue, well over 550 and counting, and it 6 probably needs to be updated. There's a few more on 7 that list. And it's a very accurate Web page that 8 talks about the history of the 12th Man trademark. 9 THE WITNESS: Can we take a break for 10 just a second? 11 MR. CAIN: Sure. 12 (Break.) 13 Q. (BY MR. CAIN) So on that last exhibit, 159, 14 there's also a video that was embedded that was called 15 "There's a Spirit"? 16 A. That's correct. 17 Q. Are you familiar with that? 18 A. Yes, I am. 19 (Opposer's Exhibit 17 offered.) 20 Q. (BY MR. CAIN) Can you take a look at Exhibit 21 No. 17, which is Bates Nos. 92 through 96. Is this 22 screenshots from that particular video? 23 A. Yes. This Exhibit 17 references a video that 24 is posted at multiple locations on the Web, one being 25 the website we offered in the previous exhibit. These

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61 1 screenshots show the video residing on the Texas A&M 2 Athletics YouTube page and describe the video. The 3 video is actually a production of the story of E. King 4 Gill, the story of the legend of the 12th Man, and 5 shows how it has evolved and exists today. 6 There are numerous screenshots in this 7 exhibit. Exhibit, Bates page 93, references the Home 8 of the 12th Man, which is prominently displayed inside 9 Kyle Field on the student section. It also, on Bates 10 Exhibit page 94, it continues to show it with -- with 11 students and fans in attendance during the games. 12 Shows those same fans holding 12th Man towels. 13 It continues to show on other pages. It 14 shows levels of vision, visibility of the sign from 15 down on the field, on the north -- other end of the 16 field, up in the sky. It's very, very visible, close 17 and away. 18 And then the last page Bates page 96, it 19 shows up close you can see the 12th Man towels with 20 the 12th Man logo on it in the students and the fans' 21 hands as they stand and rally for the 12th Man for 22 Texas A&M. 23 Q. All right. So you talked earlier about the 24 actual trademark registrations that have been 25 obtained?

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62 1 A. Yes. 2 (Opposer's Exhibits 11 through 14 3 offered.) 4 Q. (BY MR. CAIN) Let me just show you 5 Exhibits 11, 12, 13 and 14 and have you identify 6 those. 7 A. Exhibit 11 is the 12th Man trademark 8 certificate issued on September 4th of 1990 in Classes 9 16, 20, 24, 25, and 36. 10 Q. And the exhibit includes all of the printouts 11 from the trademark office records regarding this 12 particular registration? 13 A. Yes, it does. 14 Exhibit 12 is the trademark of service 15 certificate of 12th Man for Classes 14 and 41, 16 registered on January 16th, 1996. It also includes 17 the printout from all of the information associated 18 with this certificate and Classes from the USPTO. 19 Exhibit 13 is the 12th Man mark in Class 20 41, registered December 18th, 2007. This particular 21 registration does not include college, and is a 22 broader application and use beyond that of college in 23 Class 41. It also contains all of the filings, 24 correspondence, history and information associated 25 with the filing on the USPTO office and website.

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63 1 Exhibit 14 is the trademark certificate 2 for Home of the 12th Man in Classes 25 and 41, 3 registered March 12th, 2013. Again, it includes all 4 of the information, history, attorney correspondence, 5 et cetera, associated with this trademark on the USPTO 6 website. 7 Q. And these -- these registrations that are 8 depicted in Exhibits 11, 12, 13, and 14, are you 9 person who is ultimately responsible for maintenance 10 of these trademark registrations? 11 A. Yes, I'm the one who is responsible for the 12 maintenance of. We're the ones responsible for 13 following up on any required actions for defending 14 those trademarks when we find infringing use and 15 ensuring the proper use of those trademarks within the 16 class codes in which we've registered, as well as in 17 other areas as well. 18 Q. And those registrations are currently up to 19 date? 20 A. Yes, they are. 21 (Opposer's Exhibit 15 offered.) 22 (Opposer's Exhibit 158 offered.) 23 Q. (BY MR. CAIN) Let me show you what has been 24 offered as -- actually, I'll give you two exhibits -- 25 Exhibit No. 15, which is Bates No. 90, and then

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64 1 Exhibit No. 158, which is Bates Nos. 1376 through 2 1381. Can you identify these two exhibits? 3 A. Exhibit No. 15 and Exhibit No. 158 are 4 screenshots from the Texas A&M Athletic website 5 12thMan.com. The screenshots depict all sports, not 6 just football, but all sports, men's and women's, 7 within the Texas A&M Athletic Association. Again, all 8 linked to 12thMan.com. There are examples on this 9 page in Exhibit 15, Bates page 90, of example of a -- 10 of co-branding and sponsorship agreements where we've 11 entered into agreement for use of the 12th Man and a 12 third party. 13 That third party happens to be KBTX, a 14 news organization, and its 12th Man weather report 15 presented by KBTX, where KBTX is the licensee and we 16 are the licensor in that agreement. And they tell the 17 weather for games and events at Texas A&M. 18 Exhibit 158 continues to show the breadth 19 of the Texas A&M athletic department. It has various 20 pages that show different sports, different student 21 athletes, our primary brand. It also has links and 22 advertisements to buy Texas A&M gear at the 12th Man 23 shop. I'm specifically referring to Bates page 1377. 24 And you can see that example of the 12th Man shop, and 25 then it depicts product bearing Texas A&M trademarks.

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65 1 Also, on Bates page 1378, we see examples 2 of branding and marketing, asking people to purchase 3 season tickets for Texas A&M athletic events on the 4 12thMan.com website with a link and an advertisement 5 on where to go to purchase those tickets. 6 On Bates page 1380, we also talk about 7 our athletic video, photography and content production 8 team. That team is called the -- it's called 12th Man 9 Productions. It's branded on that page as 12th Man 10 Productions. And 12th Man Productions host regular 11 studio shows and programs and networking for national 12 broadcasts in our 12th Man studios. The 12th Man 13 studios are located inside Kyle Field, and it's where 14 we both broadcast nationally from ourselves and we 15 make use of 12th Man studios for national broadcasters 16 who come in during the season to run television shows 17 and interviews that go public. I myself, have, in the 18 course of my job have done several news and media 19 shows in those studios myself. 20 And the last page, which is Bates 21 page 1381, shows that when you click on the 12th Man 22 shop, it then takes you to a product assortment page, 23 showing gear being sold on behalf of Texas A&M online 24 with Texas A&M trademarks. 25 Q. And all of this -- this athletic website is

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66 1 at 12thMan.com? 2 A. Yes. 12thMan.com is where you go to access 3 all this information, including information about our 4 staff, information about our traditions, information 5 about our facilities, information about what to expect 6 on game days on campus. If you want to tailgate, if 7 you -- and it also has other -- other advertising and 8 promotional spots for third-party sponsors to tie in 9 with our 12th Man trademark to sell their goods and 10 services, as well as to get services to go to buy 11 tickets, to buy merchandise, to see profiles on our 12 students, our student athletes, and to learn more 13 about the history of Texas A&M. 14 Q. And 12thMan.com covers every single sport 15 that's offered at Texas A&M? 16 A. It covers every sport. I believe there's 21 17 sports currently. I may be off by one. But 18 approximately 21 sports on the men's and women's side. 19 Q. And there's information about the players and 20 their schedules? 21 A. Yes. There's roster information, there's bio 22 information about our student athletes, talking about 23 what they're studying in school, to what their 24 academic accomplishments have been, to what their 25 athletic accomplishments have been, and you can get

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67 1 that for every sport. 2 Q. Both men's and women's? 3 A. Men's and women's, and you can get coach 4 information and history and records online as well. 5 (Opposer's Exhibit 18 offered.) 6 Q. (BY MR. CAIN) Let's take a look at 7 Exhibit 18, which is Bates pages 97 and 98. Can you 8 identify that? 9 A. Exhibit 18 is the Texas A&M Athletics mobile 10 app that you can download to access the same 11 information we talked about on the website, but it's 12 through an app for a smartphone. The name of the app 13 is 12th Man, and it references all of the Texas A&M 14 athletic informational settings that we just finished 15 talking about in the last exhibit. 16 Q. So everything that you can get from 17 12thMan.com on your computer, you can use this 12th 18 Man app to get on your smartphone? 19 A. That's correct. And it's branded as 12th Man 20 with the primary block TAM and 12th Man on the app 21 itself. 22 Q. Do you know how many uses of this app there 23 have been or how many times it's been downloaded? 24 A. I can tell you that unique individual 25 downloads have been over 45,000 to date. Based upon a

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68 1 number of times of -- a person has used it, we would 2 expect that to be in the high six figures and may be 3 even low seven figures. 4 Q. And is that people here locally or across the 5 country? 6 A. Well, it's -- this is an app that's available 7 worldwide, it's used worldwide. We've tracked 8 locations in North America, South America, Europe, 9 Central America, we've tracked -- Asia, all over the 10 world, we have Aggies and fans and people who are 11 interested in Texas A&M downloading and using this 12 app. 13 (Opposer's Exhibit 19 offered.) 14 Q. (BY MR. CAIN) Let me show you what's been 15 offered as Exhibit 19, and this is Bates Nos. 99 16 through 310. Tell me what this exhibit is. 17 A. This exhibit is the Media Guide. It's a hard 18 copy printout of an electronic file that's available 19 on the Internet that is available worldwide but 20 targeted to fans of Texas A&M, as well as people who 21 are interested in learning more about the Texas A&M 22 football program. Again, it is available worldwide. 23 People have downloaded it or accessed it from all over 24 the world. And we have seen that information on 25 our -- on our data. That --

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69 1 Q. Are copies of this Media Guide given to 2 outside media who come to Texas A&M to broadcast 3 games? 4 A. Yes. So in addition to the information 5 that's available, specifically we produce this for the 6 media -- national media who come and cover our events. 7 So these media guides are used to help national 8 reporters from national publications and national TV 9 have an understanding of who's on the field, the 10 coaches, the history of the program, the history of 11 the school, and the history of our traditions. A lot 12 of times these reporters, as they cover the games, 13 want to know about what makes Texas A&M unique or 14 special, and the 12th Man is -- is the most 15 prominently featured and highlighted and commented 16 upon tradition at these events by these reporters. 17 Q. This particular Media Guide is for football, 18 but do you also have similar media guides for other 19 sports? 20 A. We do, we have similar Media Guide for other 21 sports as well. And other stadium, for example, the 22 soccer stadium references the 12th Man inside and the 23 Home of the 12th Man inside its facility, and we see 24 that in various practice facilities, other game 25 venues, and our -- matter of fact, our athletic

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70 1 branding talks about it being the Home of the 12th Man 2 or the 12th Man as well. 3 For example, our practice football 4 facility, we have a wrap that covers the outside of 5 that facility that -- the wrap talk -- it says "Texas 6 A&M, Home of the 12th Man," and it's visible to 7 everybody who drives by our campus on the busiest road 8 in College Station. 9 Q. So flipping through just the first couple of 10 pages of this Media Guide, you have a table of 11 contents, you've got some other quick facts and 12 information, and then there's a section beginning at 13 page 105. Can you talk about that -- those next few 14 pages. 15 A. Yes. So, and Bates page 105 which is Media 16 Guide page 5, it talks about media points of interest. 17 And the 12th Man statue is prominently featured for 18 the media to show them some photo ops, some beat roll 19 opportunity, and it allows them -- it starts to tell 20 them about locations on campus that are prominent for 21 telling the story of Texas A&M. 22 That continues on page -- Bates page 112. 23 There is a historical oversight of the university, not 24 just the athletic program, but the entire university. 25 The timeline starts in 1862 and continues through till

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71 1 today. Prominently featured as one of the most 2 historical and important events in Texas A&M is 1922 3 with the picture of E. King Gill and the legend of the 4 12th Man is born, as E. King Gill stands ready to 5 assist the Aggies on the grid iron. And that serves 6 as an example of how much and part of the DNA the 12th 7 Man tradition is for Texas A&M. 8 On Bates page 113 we provide comments 9 about Texas A&M at a glance. And it's prominently 10 featured under a photo that shows our stadium in game 11 action, with the Home of the 12th Man displayed so 12 that media members who are -- who are from outside 13 fully understand and are immersed in the 12th Man 14 tradition and legend. 15 On Bates page 114 we have traditions at 16 Texas A&M, and the very first tradition -- we have a 17 lot -- but the very first and most prominent is the 18 12th Man. And the -- and it describes how the term 19 refers to the entire student body, past and present, 20 which basically means everyone at Texas A&M, and how 21 it originated in 1922 and how it continues on today. 22 So on Bates page 115, it goes on to talk 23 about another tradition, about the Corps of Cadets. 24 The picture that's featured prominently shows the 25 Corps of Cadets in dress uniform with the 12th Man

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72 1 towel with the trademark Texas A&M and trademark 12th 2 Man displayed on the towel, tucked into their 3 uniforms, as part of their game day presentation. 4 Also, further into the Media Guide on 5 Bates page 118, which is also Mini Guide page 118, we 6 talk about how to connect to Texas A&M, we talk about 7 our social media, but we prominently call and feature 8 the web site that was an earlier exhibit, it's called 9 [email protected]. 10 In this picture, we have a picture of 11 E. King Gill, and we call attention to everything that 12 you need to know about the tradition, dating 1922 to 13 today's date. 14 Q. And you're referring to Exhibit No. 159, 15 that's at the 12thMan.tamu.edu? 16 A. Yes, that is correct. 17 Q. So it's -- is it safe to say that anyone who 18 has entered Kyle Field since Home of the 12th Man, was 19 placed on the second deck of Kyle Field, has seen the 20 signage, "Home of the 12th Man"? 21 A. With no disrespect to anybody who might be 22 disadvantaged, you would have to be blind to never 23 have seen it. 24 Q. Let's talk about just -- how many people have 25 come to Texas A&M and visited Kyle Field?

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73 1 A. Well, in Bates page 271, on Media Guide 2 page 171, it talks about the top 25 crowds at Kyle 3 Field. The top 18 crowds are over a hundred thousand 4 people per home game. And, you know, the last few are 5 in the high eighties and low nineties. Just those top 6 25 attended games are, you know, 2 million people. So 7 if you take the number of home games we have per year, 8 we average about seven, and even for those who -- away 9 games who see the 12th Man and support of the away 10 games with the 12th Man towels and are watching on TV, 11 in-person attendance at Kyle Field is several million 12 over those years. And on TV, with the -- with the SEC 13 Network and the national coverage and the prominence 14 of Home of the 12th Man and how the 12th Man tradition 15 is talked about on every single broadcast, there have 16 been hundreds of millions of people that have seen 17 that over the years. 18 In Bates page 272 for the Media Guide, 19 the media is told about the Kyle Field history and 20 timeline, and the article that talks about Kyle Field 21 is headlined "Home of the 12th Man." And it talks 22 about the facility and the structure, and that's -- 23 that's why we call it Home of the 12th Man is because 24 it's where the 12th Man shows its support, week in and 25 week out.

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74 1 On Bates page 274, Media Guide page 174, 2 it shows a listing -- just going back the past 12 or 3 13 years, approximately -- and it shows how every 4 game -- almost every game during those seasons, 5 sometimes -- sometimes seven games -- as low as seven, 6 but as high as 13 games, have been on national TV. It 7 talks about how TV has broadcast our games ON ESPN, 8 the SEC Network, CBS. We've seen our games on FOX 9 Sports, on ABC. And so it shows that nationally on a 10 national and international TV audience, which reaches 11 millions and millions of people, our home games are 12 featured on TV every single year and our away games as 13 well. 14 Q. Is it part of your function as the vice 15 president of brand development to be aware of how 16 Texas A&M is portrayed in these national telecasts and 17 how your trademarks are used? 18 A. Yes, it is. We have a large role in building 19 our brand strategy into what appears on TV, what is 20 the message on TV. We are actively providing, through 21 our Media Guide and other means, these national 22 correspondents talking points about our traditions and 23 our brand. 24 Our office, either oversees directly or 25 assists the athletic department in doing that. We are

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75 1 working to license third-party vendors to gain 2 prominent attention in those spaces. We're talking 3 about things like the 12th Man Kickoff Team for when 4 we're not in Kyle Field so that that can be coverage 5 and brought to attention. And we are out there 6 measuring and recording kind of brand impressions that 7 we see and hear from either our fans or those not 8 affiliated with Texas A&M. 9 Q. On average, one of these national telecast 10 where the Texas A&M game is shown, how many times 11 would the 12th Man trademark be shown in signage or 12 used by sportscasters on an average telecast? 13 A. So it's almost too many to count. It's that 14 prolific. So at a home games when you're showing the 15 screenshots from the side of the stadium, Home of the 16 12th Man, it's so large and so prominent, you see it 17 on almost every play. Anytime there's a crowd shot at 18 all, you're going to see it or the 12th Man towels. 19 Every time there's a kickoff, Texas A&M scores a lot 20 of points and there's a lot of kickoffs by Texas A&M, 21 and we definitely -- the announcers are talking about 22 the 12th Man Kickoff Team. 23 Matter of fact, I remember specifically 24 one game in the SEC, the 12th Man Kickoff Team and the 25 actual 12th Man himself, the No. 12, he made three

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76 1 incredible plays. And every time after -- after that, 2 they only focused on him going down the field, and the 3 announcers were talking about the 12th Man Kickoff 4 Team. So it is almost -- every time there's a third 5 down on the opposing team, the announcer will talk 6 about how loud the 12th Man is being in the stadium, 7 making it difficult for the opposing team to hear the 8 snap count. It just goes on and on and on. And 9 pregame -- in pregame our announcers and our pundits 10 and our national analysts are talking about the 12th 11 Man, they'll do stories showing the 12th Man statue, 12 they'll have different people on to talk about how the 13 12th Man is anticipated to affect the game. 14 Recently, last year against UCLA, there 15 was a UCLA player who tried to downplay the effect of 16 the 12th Man, and in that -- in that course of the 17 game, the fans found out about their comments and they 18 started chanting about how big the student section was 19 and mocking him downplaying, and they talked about the 20 12th Man, it got coverage in the LA Times because they 21 were so loud and he couldn't hear, and reference the 22 12th Man, and it was on national TV as well. 23 Q. So is it fair to say that 12th Man, as a 24 term, it transcends tradition, spirit, and trademark 25 use with Texas A&M?

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77 1 A. Yes. As I said before, I believe that it's 2 in the DNA of Texas A&M. We might change or alter our 3 logo as we evolve, but we'll never change the 12th 4 Man. That will always be a part of us. And it's 5 invaluable to the school. We can't even imagine a 6 situation where we were not associated with the 12th 7 Man trademark. 8 (Opposer's Exhibit 20 offered.) 9 Q. (BY MR. CAIN) Let me show you Exhibit 20, 10 which is Bates Nos. 311 through 313. Can you identify 11 that? 12 A. So Exhibit 20 is an article by Steve 13 Berkowitz, a nationally syndicated writer for USA 14 Today. Steve is talking in this article which was 15 published January 30th, 2016. He's talking about 16 Texas A&M's athletic revenue, and the article headline 17 reads "Texas A&M's 192.6 million in revenue puts it in 18 college sports elite." This was an article announcing 19 that Texas A&M was the number one school in the 20 country in athletic revenue. 21 Q. For the year 2015? 22 A. For the year 2015. 23 And it talks in the article about how the 24 facilities, the ticket sales, and the funding and 25 donor funding and revenue from activities around the

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78 1 games make up this money. 2 It also talks about how the bulk of that 3 money flows through the 12th Man Foundation, which is 4 responsible for ticket sales, as well as donor and 5 facility support. And this particular article was 6 followed -- followed this year by another article by 7 the same newspaper where Texas A&M was again number 8 one, with over a 194 million in revenue, number one 9 nationally. 10 You know, we've talked about marketing 11 strategies and we've talked about the brand in 12 appearance. A part of our brand is the business of 13 the brand, and that business is important to Texas 14 A&M. And it goes to help our students who are here 15 for education and academic -- academic opportunities. 16 And it funds scholarships, and it funds different 17 offerings that the university is able to give. And 18 that brand is incredibly important to us, and it's who 19 we are. We might have buildings come and go, we might 20 have Classes come and go, but the Texas A&M brand is 21 never going to -- never going to go away, and with it 22 the 12th Man brand is there forever. 23 Q. And so the -- the $194 million revenue that 24 you offered, that's for the calendar year 2016? 25 A. That's correct. So you have calendar

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79 1 reference year 2015 and 2016, back to back the number 2 one school in the nation in athletic revenue, based 3 off of our brand and our offering. 4 Q. So you mentioned there talking about the 12th 5 Man Foundation and how that relates to revenues from 6 ticket sales and revenues from donations. 7 (Opposer's Exhibit 21 offered.) 8 Q. (BY MR. CAIN) Let me show you Exhibit 9 No. 21, which is Bates Nos. 314 through 332. And this 10 is the printouts of the 12thManFoundation.com. Is 11 that the main website for the 12th Man Foundation? 12 A. Yes. Exhibit 21 references the main website 13 for 12thManFoundation.com. I think it's important to 14 note that the 12th Man Foundation is a private entity 15 and that they actually have a licensing agreement with 16 the university to use the phrase 12th Man and use our 17 Texas A&M marks. In that capacity as a private entity 18 in that agreement, they serve as our fund-raising arm 19 and they oversee ticket sales for athletic events. 20 This website exhibit shows an example of the logo that 21 we worked with them to create, and to ensure brand 22 compliance and allow them to use and identify 23 themselves as the 12th Man Foundation. That's on 24 Bates 313 on the first screenshot. 25 Q. That's the logo in the center of the page?

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80 1 A. That's the logo in the center of the page in 2 the shield format that shows the word 12th Man and 3 then the Texas A&M block TAM. 4 Q. And I think earlier you said those are the 5 two top trademarks of Texas A&M? 6 A. Those are. Those -- those are the two top 7 trademarks of Texas A&M, together representing the 8 12th Man Foundation. 9 If you go to Bates page 315, there's a 10 primary promotion of scholarship endowments, and it's 11 branded the "1922 Fund." The 1922 Fund references the 12 year E. King Gill stood and the original 12th Man was 13 formed. So even our scholarship endowments are 14 referencing the 12th Man tradition. 15 We have featured stories in this website 16 called 12th Man featured stories, and the use of 12th 17 Man is prolific throughout the website, including the 18 history of the 12th Man Foundation and why -- why it's 19 in existence. 20 On Bates page 318 we see a financial 21 reporting of the 12th Man Foundation, and it 22 continues -- actually for right now, I'm just 23 referencing Bates page 318. 24 Q. Okay. 25 A. This is a financial accounting for the last

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81 1 six years, with the year-ending 2016 and the year 2 beginning 2011. It shows total revenues to the 12th 3 Man and then it also shows -- it's a balance ledger. 4 Those revenues are in the tens of millions of dollars. 5 Most recently, total revenues for 2016 shows 6 $44.9 million in revenues. 7 Q. Through the 12th Man Foundation? 8 A. Through the 12th Man Foundation for 9 donations, ticket sales, activities, et cetera. 10 The website continues with Bates 11 pages 319 through 329, and it talks about our 12th Man 12 magazine. The 12th Man magazine is a printed copy and 13 an online edition for dues-paying members. And it is 14 a magazine that features stories about our student 15 athletes, our coaches, our athletic programs, our 16 facilities, our scholarship opportunities, and former 17 students who are donors as well. And there are 12 18 issues of this magazine a year, one for every month. 19 And then on the 12th Man Foundation 20 website, on Bates page 330 and 331, are examples of 21 our ticket sales for athletic events. All of those 22 people that we talked about in attendance that we 23 offered earlier, they have to buy a ticket to get in. 24 This is how they do that. 25 And so they come to buy basketball

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82 1 tickets, baseball tickets, football tickets, 2 volleyball tickets; and those two pages show the 3 different venues and different opportunities for 4 tickets through the 12th Man Foundation. 5 (Opposer's Exhibit 22 offered.) 6 Q. (BY MR. CAIN) Okay. Let me show you 7 Exhibit 22, which is Bates pages 333 and 334. Can you 8 briefly tell me what that is. 9 A. Exhibit 22 is another example of the 12th Man 10 Foundation logo containing the 12th Man phrase and the 11 Texas A&M block TAM mark in use at a physical location 12 in the 12th Man offices, also used as branding on 13 windows throughout the facility. And it is a logo 14 that is created and overseen by our division and used 15 in accordance to the licensing agreement by the 12th 16 Man Foundation in the marketing efforts on behalf of 17 Texas A&M Athletics. 18 (Opposer's Exhibit 23 offered.) 19 Q. (BY MR. CAIN) Okay. Let me show you Exhibit 20 No. 23. Can you identify that? 21 A. Exhibit 23 is a sticker that contains the 22 12th Man logo with the same elements I recently 23 described. This sticker is given to donors of the 24 12th Man Foundation. The unique thing about this 25 sticker is that most people who are giving large

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83 1 amounts of money to an organization, they tend to have 2 means and drive nicer cars and you're not going to see 3 those cars cluttered with bumper stickers or window 4 decals. Our donors put this sticker on their cars, on 5 BMWs, on Lexuses, it's a sign of pride. It means a 6 lot to be associated with Texas A&M and the 12th Man, 7 so that's how that brand transcends to fan loyalty out 8 in the marketplace. 9 (Opposer's Exhibit 24 offered.) 10 Q. (BY MR. CAIN) I'm going to give you a 11 magazine and then Exhibit No. 24, which is copies of 12 the individual pages; and it's Bates Nos. 335 through 13 366. 14 A. This Exhibit 24 is a copy of the July 15th, 15 2017 12th Man magazine, one of the magazines we 16 offered earlier in the exhibit of the 12th Man 17 website. This is a hard copy printout. In this 18 magazine -- 19 Q. 12th Man is the actual name of this magazine? 20 A. Yes, the actual name of the magazine is 12th 21 Man Magazine. In this article it has the statement of 22 financial position on Bates page -- starting on Bates 23 page 346 for the years 2015 and 2016. The -- 24 Q. Again, this is part of the annual report 25 provided --

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84 1 A. This is part of the annual financial report 2 that's provided about how the 12th Man performs. It's 3 more of an updated report than we saw on the previous 4 exhibit. And it references our total net assets for 5 2015 and 2016 in the 12th Man Foundation, the total 6 assets for 2015, approximately $293 million, and the 7 total assets for 2016 are approximately $279 million. 8 This includes contributions upwards of $80 million for 9 2015 and 2016 each year annually, which can be seen on 10 Bates page 347. 11 Those total -- those total assets are 12 important because it represents the value of the 12th 13 Man brand, and it represents how the brand has been 14 put into place through a coordinated marking and 15 communication strategy and branding strategy to build 16 upon the value of the brand so that we can deliver the 17 services and expectations that go along with the brand 18 to our Texas A&M fans. 19 On page -- Bates page 350, we have an 20 annual giving report that talks about the distribution 21 of donors. The distribution of donors is nationwide. 22 In 46 states we have donors who give to Texas A&M. So 23 it is not just a regionally based brand, it is 24 national. And the -- 25 Q. So there are donors to the 12th Man

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85 1 Foundation in at least 46 states? 2 A. Yes, in at least 46 states throughout the 3 United States. 4 Q. So in at least 46 states, there are donors 5 who have those 12th Man stickers that you referred to 6 that are probably located on their cars? 7 A. Yes, that's correct, visible to people in 8 those locations to see. And they affiliate the 12th 9 Man with Texas A&M in 46 states in the country. 10 On Bates page 351, I think there's 11 another important item to note. Of our -- of our 12 donors to the 12th Man Foundation, 11,000 of them have 13 season tickets, but there's almost 8,000 that do not. 14 And so that shows that there are 8,000 donors to the 15 12th Man Foundation who are not consumers of -- of 16 sports through season tickets, that donate because of 17 the value of the 12th Man brand. So it shows that 18 it's beyond just affiliation with sports but to the 19 school itself. 20 Bates page 353 also shows ticketing 21 revenue that the 12th Man Foundation is responsible 22 for, which is a piece of the athletic budget. This 23 talks about $42 million in ticket revenue that has 24 been transferred to Texas A&M Athletics as a result of 25 that.

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86 1 Q. How does Texas A&M's ticketing revenues 2 relate to other schools either across the country or 3 in their conference? 4 A. Well, for example, football is the third 5 highest attended game in the country. Nationally we 6 have the third highest attendance. We are the first 7 in the SEC, Southeastern Conference, the most 8 predominant and nationally well-known conference in 9 college football. 10 It transcends beyond that. In soccer, 11 our attendance is second in the NCAA and we have 12 excellent attendance at baseball, basketball, and 13 other facilities throughout across the country -- I 14 mean, across all sports. Excuse me. 15 Bates page 354 represents the E. King 16 Gill award, and it shows a photo of the E. King Gill 17 statue on a bus; and it's presented to the outstanding 18 donor in Texas A&M Athletics by the 12th Man 19 Foundation. And it recognizes, with the highest honor 20 and the highest brand, accolade that we can give by 21 naming them the E. King Gill or 12th Man award. And 22 this is an example of how important and renowned the 23 12th Man tradition is at Texas A&M. 24 Q. So we've talked about use of the 12th Man 25 trademark in and around the football stadium and on a

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87 1 couple of statues. How else is the trademark 12th Man 2 visible around the campus? 3 A. So I think I mentioned briefly in another 4 location away from the football field we have a 5 practice facility that's outdoors, but it's right 6 against the public right-of-way, the busiest 7 intersection in College Station, and that chain link 8 fence is branded with Home of the 12th Man. On the 9 outside of the football field, the football stadium of 10 Kyle Field, not just the inside, we have an iconic 11 statue of E. King Gill and the story of 12th Man. We 12 have a statue and the story of the 12th Man in Rudder 13 Plaza, which is a prominent, very busy outdoor 14 facility. We have it located on the stadium itself on 15 the outside, on the entrance to the student section 16 side that is very visible from that street as you 17 drive by. 18 We have it branded within our Student 19 Union. We call that the 12th Hall, and we have the 20 story and a gigantic image of the statue and the 12th 21 Man and the Home of the 12th Man sign inside the 22 facility of the Student Union. 23 We have it on websites that are branded 24 internationally that are accessible on at least three 25 different prominent websites of Texas A&M. We have it

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88 1 on our social media accounts. Our Twitter handle is 2 12th Man. We use it in our branding of our social 3 media as a hashtag 12th Man. It is on Facebook pages. 4 It is on websites, 12thMan.com, and it's on product. 5 We actively promote our 12th Man trademark on product 6 and in goods and services. 7 Q. So let's just take a look at some of those -- 8 some examples of those uses of 12th Man that you just 9 offered. 10 (Opposer's Exhibit 25 offered.) 11 Q. (BY MR. CAIN) I'll show you what's offered 12 as Exhibit 25, which are Bates Nos. 367 through 370. 13 A. Exhibit 25 is a -- Bates page 367 is a 14 picture of the outside of Kyle Field, the student 15 entrance, and the entrance -- over the entrance in 16 gigantic letters it says "Home of the 12th Man." 17 Bates page 368 is an entrance -- another 18 entrance into Kyle Field with internal branding. It 19 says "Home of the 12th Man," but we also have vertical 20 banners talking about the rest of the -- kind of the 21 rest of the Aggieland -- spirit of Aggieland 22 experience, where we have other primary mark and 23 hashtag 12th Man attached to photos of Corps of 24 Cadets, families that have an interest in Texas A&M. 25 On Bates page 369 we see additional

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89 1 branding in similar formats, pictures of students, the 2 same hashtag, the same Texas A&M branding, hashtag 3 12th Man, photo of E. King Gill in the same way. 4 And then Bates page 370 we also have, 5 from the sidelines looking up into the stands, you see 6 in ginormous letters, "Home of the 12th Man," both 7 permanently affixed inside of the field and also 8 displayed on our ribbon board. 9 (Opposer's Exhibit 26 offered.) 10 Q. (BY MR. CAIN) Let me show you Exhibit 11 No. 26, Bates pages 371 and 372. 12 A. Exhibit 26 references the Student Union, what 13 we call the Memorial Student Center. It has pictures 14 of banners inside the facility with pictures of Texas 15 A&M primary brand and the phrase 12th Man. It also 16 shows on Bates page 372, the Home of the 12th Man, the 17 E. King Gill photo of him in his uniform, the crowd 18 shot of the fans under the Home of the 12th Man 19 stadium signage with 12th Man rally towels and then it 20 has the story with the primary Texas A&M brand and 21 12th Man Foundation brand that tells the story of E. 22 King Gill. 23 And this student visitor's center is the 24 living room of campus. It is the most visited 25 facility on a day in and day out location throughout

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90 1 the year. Our visitor's center which reports 2 underneath our -- my unit that I oversee provides 3 tours. And this is a stopping point on a tour for 4 over 55,000 prospective students and their families 5 annually. And the MSC receives well over a quarter of 6 a million, possibly as high as a half a million 7 visitors annually. 8 Q. You said MSC. What does that refer to? 9 A. The Memorial Student Center, Student Union. 10 (Opposer's Exhibit 27 offered.) 11 Q. (BY MR. CAIN) Let me have you identify 12 Exhibit 27, which is Bates No. 373. 13 A. Exhibit 27 shows a named facility within the 14 Memorial Student Center or the MSC. It is called the 15 12th Man Hall. And it was named after the donors of 16 Trisha and Chaz Neely from the class of '62 who wanted 17 to have their name associated with the 12th Man Hall 18 who represents the student body and former students at 19 Texas A&M. And it is the most active hallway in 20 campus. It's kind of the pass-through if you're 21 coming from the bus or the shuttle system, passing 22 through the MSC, coming to the other side to Kyle 23 Field or parking garages or Classes and other areas on 24 campus. 25 Q. So this hallway intersection that's shown in

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91 1 this Exhibit 27, would you say that from the -- from 2 vertical on the picture to the left and right, is that 3 one of the most commonly used intersections of any 4 building on campus? 5 A. It is the most commonly used intersection. 6 It gets more traffic than any other intersection on 7 campus. 8 (Opposer's Exhibit 28 offered.) 9 Q. (BY MR. CAIN) Let me have you identify 10 Exhibit 28, Bates pages 374 and 375. 11 A. These two pages in Exhibit 28 are pictures of 12 the 12th Man rally towels, specifically they show two 13 different examples of how we have branded and marketed 14 these towels. One shows the 12th Man trademark and 15 the Texas A&M trademark together, and it also shows on 16 the other end of the towel a reference to the game on 17 a date off 11/2014 between Texas A&M and the LSU 18 Tigers in the SEC Conference. 19 The second picture on Bates 375 20 references Texas A&M as the Home of the 12th Man on 21 the towels. And these are examples of the towels that 22 are produced, sold in the marketplace, distributed for 23 marketing and promotional efforts. And right now 24 we're actively looking for a sponsor to give out a 25 hundred thousand towels at every home game this

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92 1 season. 2 (Opposer's Exhibit 29 offered.) 3 Q. (BY MR. CAIN) Let me have you identify 4 Exhibit No. 29, which is Bates pages 376 and 377. 5 A. This exhibit is a photo of the section of the 6 stadium that has the "Home of the 12th Man" 7 prominently displayed across the facade with the 12th 8 Man fan base standing and using the 12th Man rally 9 towels. All the seats are taken. All the towels -- 10 all the hands have towels and are using them. And 11 shows the message and the support of what the 12th Man 12 means to our student section at athletic events. It's 13 in the football stadium at Kyle Field. 14 Q. And are these pretty accurate depictions of 15 what the fan section looks like on any given home 16 football game -- 17 A. Yes. 18 Q. -- in terms of use of the 12th Man towels? 19 A. Yes. Everybody has a 12th Man towel in their 20 hands. It shows that it's a common part of the 12th 21 Man tradition since it was introduced in 1985. And 22 this would be every game that we play, home or away, 23 the fans will have them in their hands. 24 (Opposer's Exhibit 30 offered.) 25 Q. (BY MR. CAIN) Let me show you what's been

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93 1 offered as Exhibit 30 which is Bates Nos. 379 through 2 385, and have you identify that. 3 A. This is a Sports Illustrated article in 4 Exhibit 30 that is dated 1983 and entitled "College 5 and Pro Football Spectacular." It's an issue where 6 they talk about the upcoming college and pro season. 7 They only have room for a handful of headlines on the 8 article underneath, and one of the featured stories is 9 the Texas A&M, the 12th Man theme. 10 In this particular article, it's funny 11 because this is the exact concept that first 12 introduced me to Texas A&M as a young man in Nebraska, 13 and it was this 12th Man kickoff theme. On Bates 14 page 380, it has a picture of Coach Jackie Sherrell at 15 the time on campus, next to the E. King Gill statue, 16 and it shows the -- the 12th Man Kickoff Team who were 17 part of the student body, not football players that 18 were recruited to play at Texas A&M, and they're the 19 group that made that first 12th Man Kickoff Team that 20 year that led the country in kickoff coverage. 21 And the entire article goes on to tell 22 the story about the team, about the school, about the 23 Texas A&M tradition, and about these young -- these 24 young men and individuals directly. 25 Q. And this was in a national publication?

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94 1 A. This was in the publication. In 1983 Sports 2 Illustrated was really the only sports magazine and 3 publication that got national distribution, and it was 4 the Bible for anybody that followed college sports. 5 Q. Was this particular edition a special one? 6 A. That was a special issue that was not 7 mainstream, and it was produced in mass before the 8 start of the season, specifically due to the large 9 following of college sports and the fan base 10 nationally for the -- for those events. 11 (Opposer's Exhibit 31 offered.) 12 Q. (BY MR. CAIN) I want to show you a video 13 which is on the USB drive. It's Bates Nos. 386, and 14 it's Opposer's Exhibit No. 31. This is Exhibit 31. 15 It's called "Dude Perfect Video. World's Longest 16 Basketball Shot." Are you familiar with this video? 17 A. I am. 18 (Video playing.) 19 "Welcome to Aggieland. This is the 20 world's longest basketball shot. 21 "Big time. 22 "I did it. I made it." 23 Q. (BY MR. CAIN) So you've seen that video a 24 few times? 25 A. I have. So have several million other

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95 1 people. 2 Q. So what can you tell me about this Dude 3 Perfect and this video? 4 A. So Dude Perfect today is a nationally 5 syndicated trick shot group that has a -- their own TV 6 show. They have their own YouTube channel, and 7 they're a national brand. They started out as Texas 8 A&M students at Texas A&M University. And this 9 particular video is a video of them inside Kyle Field, 10 wearing Texas A&M branded gear with the logos of Texas 11 A&M on the center field logo primary brand visible, 12 and the Home of the 12th Man brand visible on the side 13 of Kyle Field during the entire video shoot. 14 It shows them conducting the world's 15 longest basketball trick shot from the very upper deck 16 of Kyle Field, down onto the track and making that 17 shot. And it was an Internet sensation. This group 18 routinely gets several million views on the videos 19 they release. This group has been endorsed by the 20 likes of LeBron James, famous singers, famous actors, 21 famous sport personas that come and appear in their 22 videos. This trick shot video and others they have 23 done, they've done, I think, a total of four at Texas 24 A&M with various Texas A&M personas. Johnny Manziel 25 was one of those personas. Those videos also include

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96 1 highlights of -- or branded images of Texas A&M's Home 2 of the 12th Man. The video range of how many 3 impressions have been pretty high in terms of how many 4 people have seen those videos. 5 (Exhibits 32, 33 and 34 offered but not 6 attached.) 7 Q. (BY MR. CAIN) So I'm actually going to skip 8 over the other -- the other three videos, the -- which 9 have been offered as Exhibits 32, 33 and 34. And let 10 me show you what is offered as Exhibit No. 35, which 11 is Bates Nos. 390 through 422. 12 (Opposer's Exhibit 35 offered.) 13 Q. (BY MR. CAIN) And can you identify this as 14 screenshots of these Dude Perfect videos that you were 15 referencing? 16 A. Yes. These are screenshots of the four 17 videos that I offered just recently. 18 Q. And all four of these different videos were 19 shot on the Texas A&M campus? 20 A. Yes. In Exhibit 35, these screenshots are 21 all four videos which were shot on Texas A&M's campus 22 at Texas A&M facilities. 23 Q. So the first one, the world's longest 24 basketball shot, when was that video shot? 25 A. That video was shot in 2009. And that video,

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97 1 at that time -- or has -- has reached over three and a 2 half million views. 3 Q. And this particular video where you're 4 looking at pages 390, there you see the video shot was 5 "Welcome to Aggieland" and then "Home of the 12th 6 Man." That's what you actually saw in the video we 7 just watched, correct? 8 A. Yes, we saw that the entire time of the 9 video. It was always front and center. 10 Q. So the next page at 391 was another 11 screenshot of that same video we just watched, where 12 there's the gentleman wearing a Texas A&M branded TAM 13 T-shirt, and then in the other split screen you see 14 the Home of the 12th Man still prominent? 15 A. Yes, that's a correct description of the 16 shot. 17 Q. And the next shot you see the block TAM down 18 on the field at the same time you see "Home of the 19 12th Man" on the right side of the video? 20 A. That's correct. 21 Q. And the right-hand side of the screen 22 continues to see -- so show Home of the 12th Man 23 throughout the entire video, correct? 24 A. It does, the entire length of the video. 25 Q. Now, are you aware of multiple versions of

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98 1 this particular video that are on the Internet? 2 A. Yes. There's different versions and 3 different camera angles because it's a trick shots and 4 they need to show the authenticity of the shot, so 5 they take multiple camera angles so the crowd 6 understands that are watching this that it's real and 7 not faked or edited. 8 Q. So the first few pages, the 390 through 393, 9 how many people have viewed that particular video at 10 the time that these screenshots were taken? 11 A. More than 3.4 million. 12 Q. And how about on page 394, is that this same 13 world's longest basketball shot video? 14 A. It is from a different angle, but it's the 15 same shot from a different angle. 16 Q. And Home of the 12th Man is prominent in that 17 video as well? 18 A. For the entire length of the video, yes, it 19 is. 20 Q. And how many videos -- how many viewers had 21 seen this particular video at the time that this 22 screenshot was taken? 23 A. Over 7.2 million viewers saw this video. 24 Q. And take a look at page 395. 25 A. 395 is another angle of the same video with

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99 1 Home of the 12th Man prevalent the entire time, and 2 this time the number of viewers is 11.5 million 3 people. 4 Q. So now, the next several pages, which are 396 5 through 402, can you describe that particular video -- 6 A. These pages -- 7 Q. -- and what they -- what these screenshots 8 relate to? 9 A. These pages and screenshots relate to the 10 Johnny Football or Johnny Manziel edition of Dude 11 Perfect. They're a video that a shows a trick shot -- 12 several trick shots using a football with Johnny 13 Football and members of Dude Perfect inside Kyle 14 Field. And they show it from various angles. And the 15 screenshots show our trademarks, Texas A&M trademarks, 16 they show Texas A&M Kyle Field, they show Johnny 17 Manziel wearing Texas A&M gear, they show hashtag 12th 18 Man. I'm referencing page 397 -- Bates page 397. 19 The hashtag 12th Man is an example of our 20 marketing efforts on our social media and prime camera 21 angles and camera shots. It also shows on Bates 22 page 398, Home of the 12th Man from our prominent 23 signage. And these types of branding elements, both 24 in clothing that the people are wearing and signage in 25 the stadium, et cetera, are throughout the entire

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100 1 length of the five-minute video. This video was seen 2 by over 13.6 million people. 3 Q. Okay. Let me have you take a look at 4 pages 403 through 407 and describe that video and 5 those screenshots for me. 6 A. This video, it is a video of a former 7 football player for Texas A&M named Ryan Swope. Ryan 8 Swope was a receiver. The picture shows different 9 trick shots being performed in Kyle Field and in our 10 football practice facility, which is in a different 11 location than Kyle Field. 12 The Kyle Field video shows Ryan Swope and 13 the members of Dude Perfect in Texas A&M football 14 gear, and it shows various trick shots, various 15 branding signs and elements inside Kyle Field, showing 16 Home of the 12th Man, showing Texas A&M marks, showing 17 hashtag 12th Man, and it is dated March 6th, 2013. 18 And these -- it shows the Texas A&M logo on the field 19 of the facilities. And this particular video has over 20 7.9 million views. 21 Q. And if you could describe what the video and 22 then the screenshots that are depicted at pages 408 23 through 414. 24 A. 408 through 414 show a video that was 25 published in 2014, in April. It's an NFL draft

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101 1 training video with a Texas A&M former student that is 2 going into the NFL draft and Dude Perfect. The former 3 student is in Texas A&M football gear. The Dude 4 Perfect folks are in our facilities, both our 5 basketball facilities and our practice facilities. In 6 those facilities you see Home of the 12th Man on 7 screenshots, you see the Texas A&M logo and word mark 8 on screenshots. You see, again, more shots of Home of 9 the 12th Man, and it -- this particular video is over 10 seven minutes in length and has over 19 million views. 11 These three videos -- or these four 12 videos alone, you know, represent almost 50 million 13 views of the Texas A&M 12th Man brand, just on video 14 YouTube channels. 15 Q. And that's -- that's videos that are 16 available worldwide on the Internet? 17 A. Yes, for distribution internationally. 18 Q. And all four of these videos, as depicted in 19 these screenshots, have multiple uses of the 12th Man 20 trademark in connection with other Texas A&M 21 brandings? 22 A. Yes. It's not just by itself, it's all tied 23 together with to the Texas A&M brand. It's very 24 evident and obvious to anybody who viewed this video 25 that the 12th Man trademark is associated with Texas

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102 1 A&M. 2 Q. And you said the number of people who have 3 seen these videos is over 50 million? 4 A. Approximately 50 million viewers through 5 these four videos. 6 Q. Let's -- 7 THE WITNESS: Let's take a break. 8 MR. CAIN: Let's take a break. 9 (Break.) 10 Q. (BY MR. CAIN) Mr. Hinckley, during the break 11 we had a conversation that you may have misspoke 12 earlier with respect to one of the particular dates, 13 and I think that related to when you were involved 14 with the International Collegiate Licensing 15 Association and you spoke earlier, I believe, and said 16 1991. Was that correct or not? 17 A. No, that was not correct. My first 18 involvement was 2001 -- 19 Q. Okay. 20 A. -- with the International Collegiate 21 Licensing Association. I misspoke. 22 Q. And have you been affiliated with the 23 International Collegiate Licensing Association ever 24 since 2001? 25 A. Yes, I have.

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103 1 Q. And that's the organization where you were a 2 former president of the entire organization? 3 A. Former president and board member. 4 Q. Is that a worldwide organization or a 5 nationwide organization? 6 A. It's worldwide. There are schools from other 7 countries and vendors from other countries that are 8 part of that organization. But it mainly resides and 9 operates within North -- North America, Canada, United 10 States, Mexico. 11 Q. What were the dates that you were a board 12 member, approximately? 13 A. I was a board member for six years, in an 14 officer's role for four years. I believe that time 15 was from the -- in the mid to late 2000s to 16 approximately 2011-ish. 17 Q. So did you join the board when you were still 18 at Utah? 19 A. Yes. 20 Q. Okay. So that was prior to 2008? 21 A. Yes. 22 Q. Okay. And when were you the president of 23 that organization? Was it while you were here at 24 Texas A&M? 25 A. I was a board member at the International

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104 1 Collegiate Licensing Association from 2006 to 2012, 2 and I was president while I was at Texas A&M, in 3 approximately 2010 or 2011. 4 Q. So you were at Texas A&M at the time when 5 Texas A&M joined the Southeastern Conference -- they 6 left the Big 12 Conference, joined the Southeastern 7 Conference, which also coincided with their second 8 Heisman Trophy winner in Johnny Manziel; is that 9 correct? 10 A. That is correct. 11 Q. And what was the -- the national and 12 international press coverage like during that time 13 frame with switching to the Southeastern Conference 14 and all of the Heisman Trophy hype? 15 A. So at the time, prior to the Heisman Trophy 16 and switching to the Southeastern Conference, the 17 press -- the press coverage I would describe as 18 insane. It was weekly, daily, news stories about 19 Texas A&M leaving the Big 12 and moving to the SEC, 20 for a couple of years. Every national news 21 organization that was covering this event and all the 22 associated drama, for lack of a better word, 23 associated with that. 24 Then as we entered the SEC Conference and 25 we proceeded to start our first football season, we

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105 1 had a young quarterback that nobody knew anything 2 about that was a red shirt freshman by the name of 3 Johnny Manziel. And in that -- over the course of the 4 next two years, he won a Heisman Trophy, and he 5 himself transcended sports into pop culture and became 6 the most covered sports athlete of all time. There 7 was something different about him that caused every -- 8 everybody to watch the Texas A&M football games. 9 Matter of fact, the two years that he 10 played set the single highest season viewership for 11 CBS Sports for college football and the games that he 12 played, specifically against Alabama, were watched 13 more than any other games in college sports history. 14 And the number of eyeballs and media 15 attention at Texas A&M was enormous. During that 16 time, in our role overseeing trademarks and 17 enforcement, we actually became the first school in 18 NCAA history to enter into a licensing agreement with 19 a current student athlete, and we entered into a 20 licensing agreement with Johnny Manziel to use his 21 trademark Johnny Football in association with Texas 22 A&M brand. 23 And so that was a unique situation again 24 in the licensing world that caused a lot of attention, 25 and we were involved in hundreds and hundreds of

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106 1 enforcement actions against improper use of our marks 2 in conjunction with his persona of Johnny Football 3 during that time. 4 Q. So during that time period with the huge 5 increase in just media attention to Texas A&M, what 6 did that do in terms of the visibility of the Texas 7 A&M trademarks and specifically the 12th Man 8 trademark? 9 A. We actually did a study after the -- during 10 the Heisman season run and after the Heisman Trophy 11 award of the media coverage, and that analysis came 12 back that said basically we had received about 30 -- 13 approximately 30 million dollars' worth of media 14 coverage -- additional media coverage above and beyond 15 what we would normally expect to have due to that set 16 of eyeballs. $30 million is a lot of money. That's a 17 lot of marketing dollars. That would dwarf any 18 college's marketing budget. There's no college in the 19 country that has that type of money to spend. And 20 we're talking about Fortune 500 companies now, in that 21 realm, spending marketing dollars. And that audience, 22 international audience -- it became an 23 international -- we were doing trademark enforcement 24 of our brand in Spanish, in different languages, 25 different countries with Johnny Football and Texas A&M

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107 1 brand and the 12th Man brand combined. 2 Q. And of that roughly $30 million of 3 approximate media coverage, how involved were you and 4 was your department in helping to direct the message 5 that was being presented by the media? 6 A. We were very involved. At that time I 7 reported to the vice president for brand -- for 8 marketing and communications. We were involved in the 9 positioning of the brand as it looked on the field, as 10 it looked on the players, the product, as it looked in 11 the retail marketplace. We were actively creating and 12 implementing the brand strategy for both the 13 university and athletics, creating a one-brand 14 approach. And the 12th Man and the Texas A&M brand 15 was very integrated at that time. 16 Q. So throughout that entire media coverage, 17 still your two primary brands were the block TAM and 18 the word 12th Man? 19 A. That's correct. That's correct. 20 (Exhibits 36 and 37 skipped.) 21 Q. (BY MR. CAIN) I'm going to skip over 22 previously offered Exhibits 36 and 37. Let's go to 23 Exhibit No. 38, which is a video. 24 (Opposer's Exhibit 38 offered.) 25 Q. (BY MR. CAIN) And this is the video of

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108 1 Johnny Manziel's Heisman Trophy acceptance speech, 2 which is Exhibit 38. 3 (Video playing.) 4 "The 2012 winner of the Heisman Trophy is 5 Johnny Manziel." 6 Johnny Manziel: "Leadership, respect, 7 and putting others first is what the 12th Man is all 8 about. I believe the 12th Man is one of the greatest 9 traditions in all of college football. 40,000 10 students standing not as fans but members of our team. 11 To the 12th Man, to Texas A&M, Kerrville, Texas, and 12 Aggies everywhere: This Heisman Trophy is for you. 13 Gig 'em." 14 Q. (BY MR. CAIN) So that was the actual 15 acceptance speech that was shown on CBS? 16 A. ESPN. 17 Q. On ESPN. And let me show you what's been 18 offered as Exhibit 39, which is Bates Number 423. 19 (Opposer's Exhibit 39 offered.) 20 Q. (BY MR. CAIN) Can you identify that. 21 A. Exhibit 39 is an article out of Sports Media 22 Watch, and it says that "the Heisman Trophy 23 presentation is the second most watched on record. It 24 earned a 3.1 rating, which is approximately 25 4.9 million viewers on ESPN on a Saturday night. And

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109 1 it was the second most ever in the history of the 2 Heisman Trophy award presentation. 3 Q. And so over 4.9 people saw that live where 4 Johnny Manziel was touting the 12th Man tradition and 5 the 12th Man mark? 6 A. Yes. He -- he offered the 12th Man, he 7 offered the tradition. He even said that the Heisman 8 Trophy was for the 12th Man. 9 (Opposer's Exhibit 40 offered.) 10 Q. (BY MR. CAIN) Let me show you what's been 11 offered as Opposer's Exhibit 40. It's Bates Nos. 425 12 through 428. Can you identify that? 13 A. This is a website that is not affiliated with 14 Texas A&M in any way. It's called "Topbet Sports 15 Betting Tips, News, and Analysis." And it's a Top 10 16 fact sheet that talks about what people who are 17 interested in betting on sports should know about 18 Texas A&M. 19 And one of the -- one of the top 10 20 elements of Texas A&M is on Bates page 425, is the 21 12th Man. And that they are ready to suit up for the 22 team if called upon by their beloved alma mater. And 23 it references this so that people know that when you 24 come to Texas A&M, that there is a tradition that's 25 bigger than just being fans in attendance at the game.

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110 1 Q. This is the type of media coverage you were 2 referring to that was produced outside of Texas A&M, 3 about Texas A&M? 4 A. Yes. This was in September 16th of 2013, 5 during the time that this media coverage was going on. 6 And it's just -- these websites that you never have 7 any association, that you've never heard of, all of a 8 sudden start to focus on you and draw attention to 9 your brand, your traditions, and what your school is 10 about. 11 (Opposer's Exhibit 41 offered.) 12 Q. (BY MR. CAIN) Let me show you what's been 13 offered as Exhibit No. 41. It's 428 through 431. 14 Would you identify that? 15 A. This is an article out of -- this is 16 Exhibit 41 and an article out of the sports section in 17 the Dallas News from February of 2015, and the 18 headline is: "12th Man, Midnight Yell and Other Great 19 Texas A&M Traditions." This article talks about a 20 school that is rich with tradition. And they go on to 21 talk about all the different traditions at Texas A&M. 22 Prominently featured is standing with the 12th Man, 23 and it starts off by saying: "Move over Seattle. The 24 real 12th Man resides in College Station, Texas." 25 Q. And in 2015, why do you think the writer of

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111 1 this story would have been referencing Seattle? 2 A. In 2015, they would have been referencing 3 Seattle because it would have just been after a Super 4 Bowl appearance or a Super Bowl run by Seattle during 5 that time frame, and letting people know that the 12th 6 Man tradition has been around a lot longer than the 7 small time that the Seattle Seahawks had a license to 8 use it from Texas A&M up in the northwest. 9 It goes on to talk about the student 10 section and the E. King Gill story. It's talks about 11 the best environment -- student section in college 12 football. It calls out ESPN's Kirk Herbstreit, one of 13 the most prominent national pundits there is in the 14 game and media, and they reference there isn't 15 anything like the 12th Man, especially anywhere in the 16 state of Washington. 17 This article also goes on to talk about 18 the Nebraska game and -- I'm going to step back from 19 that. I mistakenly spoke. That's not the article I 20 thought it was. Excuse me. 21 Q. But here, the section you just referred to 22 about the best student section in college football, 23 that video clip is also -- that's a clip that was 24 found on the website that your department produced, 25 which was Exhibit No. 159; is that correct?

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112 1 A. That's correct. That clip is found on that 2 website, but it originated from ESPN's broadcast of 3 the game that day. 4 Q. Okay. 5 (Opposer's Exhibit 42 offered.) 6 Q. (BY MR. CAIN) Let me show you what's been 7 offered as Exhibit 42. It's Bates pages 432 through 8 434. Can you identify that? 9 A. Yes, this is an article by national sports 10 writer George Schroeder who writes for the USA Today, 11 a national publication. It is written in 12 September 7th, 2012, part of the media coverage when 13 the school moved to the SEC Conference. 14 The front page of this article, Bates 15 page 432 from Exhibit 42, shows a picture of 12th Man 16 towel with the Texas A&M brand and the 12th Man brand, 17 also combined with the SEC Conference brand. And 18 it -- the article talks about the eve of the SEC 19 opener against Florida which also happened to be the 20 debut of Johnny Manziel. And it talks about the 21 atmosphere at Kyle Field. It talks about the move to 22 the SEC Conference. And that that photo led the 23 description of the game with the 12th Man towel. 24 (Opposer's Exhibit 43 offered.) 25 Q. (BY MR. CAIN) Let me show you Exhibit 43,

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113 1 which is Bates Number 435, and ask you to identify 2 that. 3 A. So Exhibit 43, it shows a picture of a 4 branded state of Texas, Texas A&M license plate. The 5 license plate program is overseen and run by our 6 division. We are responsible for providing the 7 branded plates that can be bought through the state's 8 official vendor for the state of Texas. We're the 9 largest seller of any plates of any school in the 10 state of Texas, more than any other brand. 11 The picture shown on Bates page 435 shows 12 a maroon license plate with the block ATM logo next to 13 the words 12th Man. This was a promotional plate that 14 we worked on with the state of Texas and put it up for 15 auction, and we -- this article that was in the 16 Houston Chronicle dated July 1, 2013, that's part of 17 Exhibit 43, was part of our marketing efforts to reach 18 out and let people know that we were going to be 19 auctioning off this 12th Man license plate. 20 (Opposer's Exhibit 44 offered.) 21 Q. (BY MR. CAIN) Now let me give you 22 Exhibit 44, which is Bates Nos. 436 through 442. Can 23 you identify that? 24 A. Yes. This is a Dallas Morning News article 25 after the auction of the license plate -- the 12th Man

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114 1 license plate. The headline on Bates page 436 reads: 2 "Houston lawyer wins Texas A&M Aggie 12th Man plate 3 auction for $115,000." The article talks about the 4 auction, the license plate itself, and it also said 5 that it's the highest price ever paid for a license 6 plate in the state of Texas. 7 Q. What was the next highest below that? 8 A. The next highest below that was $25,000. And 9 so the difference between that was $90,000, between 10 the second highest plate and the 12th Man plate at 11 Texas A&M. 12 Q. So when was the license plate given to the 13 individual who purchased it? 14 A. I believe it was given in September of 2013. 15 It was presented at Kyle Field on the field to a -- a 16 student. If my recollection is right, it was a -- it 17 was a vet -- one of our vets who had served our 18 country and was coming back to school. And they had 19 no idea and it was a surprise, representing giving it 20 to a member of the 12th Man who exhibited the 21 characteristics of what the 12th Man stood for in 22 providing service to their country. I believe this 23 vet had also been wounded in action, if I recollect. 24 Q. So the person would bought it actually turned 25 around and donated it to somebody else?

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115 1 A. He donated it to somebody in the honor of 2 serving others. 3 (Opposer's Exhibit 45 offered.) 4 Q. (BY MR. CAIN) Let me show you Exhibit No. 45 5 which is pages 437 and '38. Can you identify that? 6 A. Exhibit No. 45 is from an independent blog, 7 not associated with Texas A&M, called TexAgs. There's 8 a poster on this -- on this blog that posts in -- 2006 9 is the date of the post -- posts a -- posts the story 10 of the 12th Man and selfless service. And the link is 11 from the Texas A&M website where we had posted the 12 tradition and story of this -- of the 12th Man. 13 It goes on to quote the entire article 14 that talks about E. King Gill and that day in 1922 and 15 how the 12th Man started. And then it goes back to 16 reference a student body president from the class of 17 2006, Bryan Blackwell, who talks about, "To me, the 18 12th Man goes beyond football in the manner in which 19 Aggies go beyond the call of duty to serve others. 20 The 12th Man is about being there for others, whether 21 they need you or not. 12th Man is made up of people 22 from all walks of life coming together to stand as one 23 and yell for our team." 24 Q. And what was the time frame of this article? 25 A. This article was posted in 2006 at the time

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116 1 that we were settling -- or entering into a lawsuit 2 settlement with the Seattle Seahawks over the use of 3 the 12th Man -- over the unauthorized use of the 12th 4 Man. 5 Q. Now, you said that your department oversees 6 the -- I guess the branding of Texas A&M trademarks, 7 including the 12th Man mark throughout social media as 8 well? 9 A. That's correct. 10 (Opposer's Exhibit 46 offered.) 11 Q. (BY MR. CAIN) Let's take a look at a number 12 of exhibits that relate to that social media. I need 13 you to identify them. So let's start with Exhibit 46, 14 which is Bates Number 439. 15 A. Exhibit 46 is the 12th Man Foundation 16 Facebook page. It shows the 12th Man logo in the 12th 17 Man Foundation shield. And the -- it also references 18 the Twitter handle for the 12th Man Foundation being 19 12th MF for Man Foundation. It shows that it has, at 20 this time this was printed, over 46,000 people 21 following this page and 47,000 people liking this 22 page. 23 Q. And the 12th Man Foundation is the -- the 24 licensee, it's a separate entity, but that's through 25 that entity that the donations are made to the

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117 1 athletic program and that all the tickets are sold? 2 A. The 12th Man Foundation handles all the 3 donations and ticket sales for the athletic 4 department, that's correct. 5 (Opposer's Exhibit 47 offered.) 6 Q. (BY MR. CAIN) Let's me show you what's 7 offered Exhibit 47 at Bates page 440. Would you 8 identify that? 9 A. I'm looking at Exhibit 47, which is a post 10 off of the Reddit blog or Reddit website which is on 11 online forum where people talk about different subject 12 matter. This Reddit post that I'm looking at is 13 labeled "History of the 12th Man Kickoff Team." 14 Reddit is used by millions of people, and the date of 15 the post is July of 2016, but it references the 12th 16 Man Kickoff Team as it was created by Jackie Sherrill 17 and how it originated in 1983. And has links to the 18 story of this to -- back to the local newspaper, as 19 well as different links to ESPN articles and 12th Man 20 Kickoff Team videos that actually came from our 21 website. 22 Q. Okay. And that's the 12th Man Kickoff Team 23 which was referred to in that Sports Illustrated 24 article which was Exhibit 30 that you looked at 25 earlier?

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118 1 A. That's correct. 2 (Opposer's Exhibit 48 offered.) 3 Q. (BY MR. CAIN) Exhibit 48 is Bates 4 Number 441. Can you identify that? 5 A. This is a Reddit website, again, following an 6 online sports forum with several million people that 7 engage in this online forum, and this is a post 8 entitled "Home of the 12th Man, Removed from Seattle 9 Century Link Field." This is an article referencing a 10 sports blog called TexAgs.com that is not affiliated 11 with Texas A&M, but at times does talk about Texas 12 A&M. And it is commenting on how Seattle removed Home 13 of the 12th Man from their facility in -- an 14 in-stadium presence, and the article talks about a new 15 licensing agreement that was reached in 2016 between 16 Texas A&M and Seattle. 17 (Opposer's Exhibit 49 offered.) 18 Q. (BY MR. CAIN) Take a look at Exhibit 49 19 which is Bates No. 442. Can you identify that? 20 A. So Exhibit 49 is the Texas A&M Athletics 21 Facebook page. It is the Facebook page that has over 22 245,000 people who have liked it and over 233,000 23 people who follow it. It covers all of Texas A&M 24 Athletics and athletics information in the Facebook 25 social media forum. And it references their official

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119 1 website on this page as 12thMan.com and associates 2 12thMan.com with the Texas A&M brand and the Texas A&M 3 athletic brand. 4 (Opposer's Exhibit 50 offered.) 5 Q. (BY MR. CAIN) Can you identify Exhibit 50, 6 which is Bates No. 443? 7 A. This is the Instagram social and media 8 account of Texas A&M Athletics. The Instagram account 9 is entitled "12th Man." It's followed by 94,000 10 followers. The avatar or the icon that's associated 11 with the account is the block TAM mark and the 12th 12 Man mark together, identifying Texas A&M and the 12th 13 Man as one and the same brand. 14 It also references the website as 15 12thMan.com and shows pictures of stadiums, athletics, 16 student athletes, including the Home of the 12th Man 17 photo with our 12th Man fans in the stands. 18 Q. And this is just the official Instagram page 19 of Texas A&M Athletics? 20 A. Yes, it is. 21 (Opposer's Exhibit 51 offered.) 22 Q. (BY MR. CAIN) Can you identify Exhibit 51, 23 Bates page 444? 24 A. Exhibit 51 is the official Twitter account of 25 Texas A&M Athletics. Its official name is "@12th

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120 1 Man." The logo or icon used to identify it is the 2 block TAM with the words 12th Man, again indicating 3 that the marks and the brand is one and the same. 4 And it shows that they have over 104,000 5 followers and they have several posts tweeting out 6 information about Texas A&M Athletics, showing student 7 athletes, facilities, and stories about them as well. 8 It also, down in the bottom corner of the 9 screenshot shows other people that they could follow 10 that are similar, and the 12th Man Foundation is 11 listed with its icon and logo as a possible follow 12 associated with Texas A&M Athletics. 13 Q. And you are also one of the followers of this 14 particular -- 15 A. I am one of the followers of this particular 16 brand, and my picture is prominent on this page. 17 Q. Through here you can also link to other 18 websites such as the 12thMan.com official athletic 19 site? 20 A. That's correct. That is shown. And it also 21 lists our Instagram account as the 12th Man again from 22 this site. 23 (Opposer's Exhibit 52 offered.) 24 Q. (BY MR. CAIN) Let's take a look at 25 Exhibit 52 at page 445. Can you identify that?

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121 1 A. Exhibit 52 is the official Texas A&M 2 University Pinterest account. We are the most 3 followed Pinterest account of any higher education 4 institution. It shows our followers at 15,000. It 5 references our website at www.tamu.edu; and in the 6 description of our account it says: "Texas A&M 7 University, Home of the 12th Man." 8 (Opposer's Exhibit 53 offered.) 9 Q. (BY MR. CAIN) If you'll take a look at 10 Exhibit 53, page 446 and identify that. 11 A. Exhibit 53 is the official Twitter account of 12 Texas A&M University. It shows our primary block TAM 13 logo, our -- and in our account it talks about our 14 official hashtags, and our official hashtag is 12th 15 Man, or hashtag TAMU for Texas A&M University. Those 16 are the two that we use every single day in all of our 17 posts. And it has over 237,000 followers and is one 18 of the most engaging and prolific college university 19 Twitter accounts followed in the country. 20 (Opposer's Exhibit 54 offered.) 21 Q. (BY MR. CAIN) Take a look at Exhibit 54 at 22 page 447 and identify that. 23 A. Exhibit 54 is a search on Twitter for hashtag 24 12th Man and @TAMU, and it shows the first of a 25 listing of thousands of posts by Texas A&M that have

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122 1 the hashtag 12th Man associated with the brand. 2 (Opposer's Exhibit 55 offered.) 3 Q. (BY MR. CAIN) And Exhibit 55, at page 448, 4 would you take a look at that. 5 A. Exhibit 55 is another search on Twitter and 6 it shows a search for hashtag TAMU and hashtag 12th 7 Man, and it shows again the front page of thousands of 8 results that have both of our hashtag TAMU and hashtag 9 12th Man associated with Texas A&M University and our 10 various social media accounts and posts that have been 11 made from those accounts. 12 (Opposer's Exhibit 56 offered.) 13 Q. (BY MR. CAIN) And next is Exhibit 56, Bates 14 page 449. 15 A. Exhibit 56 is a social media -- is a Twitter 16 search for the word "Texas#12TH MAN." It shows 17 numerous Twitter accounts and social media posts where 18 the word Texas appears in the post or in the name of 19 the account, and hashtag 12th Man. For example, 20 TX.gov is one our primary accounts that listed that 21 contain that search with 12th Man listed, referencing 22 Texas A&M, as well as other accounts, like 12th Man 23 Productions, 12th Man Athletics. Again, there were 24 hundreds, if not thousands, of posts using those two 25 combination of search terms on Twitter.

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123 1 (Opposer's Exhibit 57 offered.) 2 Q. (BY MR. CAIN) And can you take a look at 3 Exhibit 57 at page 450 and identify that. 4 A. Exhibit 57 is a YouTube page showing Texas 5 A&M Athletics YouTube page which has over 29,000 6 subscribers, and it shows a screenshot of the start of 7 a video entitled "Home of the 12th Man," with the 8 Texas A&M and SEC logo. And it is a video about the 9 12th Man tradition that was published on June 28th of 10 2012. 11 Interestingly enough, because of the 12 search function that was done, also in the upper 13 right-hand corner of this same exhibit, college 14 traditions posted by CBS Sports, a national media 15 company, lists Texas A&M and Home of the 12th Man and 16 they produced a two-minute video piece on the 12th Man 17 tradition that just happens to be in another search 18 function based upon that on YouTube. 19 Q. And there's other videos, if you look down 20 the right-hand side of this exhibit, that all 21 reference 12th Man as well, correct? 22 A. Yes, exactly. They talk about Texas A&M 23 Athletics and 12th Man all the way down. 24 Q. And these last several exhibits we've looked 25 at are just some examples of the types of social media

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124 1 accounts that your department has to monitor on a 2 daily basis in association with the various trademarks 3 of Texas A&M? 4 A. Yes. We monitor them quite frequently. We 5 receive reports about who is talking about our brand, 6 who is commenting about our brand, who is even 7 referencing our brand inappropriately if they don't 8 have permission to do so. 9 One of the things I think is worth 10 mentioning, too, it's not just that we're another 11 university account, these university accounts I've 12 offered either lead the nation in followers and 13 engagement or in the top three in all cases. And the 14 scope and size and scale of Texas A&M and the 12th Man 15 brand associated with it, it is -- is enormous, and 16 it's not just regionally based, it's worldwide. And 17 we get interactions from people all over the world 18 through our social media accounts. 19 Q. So when you -- the statement you just made, 20 for instance, Facebook, you're one of the top three 21 Facebook accounts of any major university? 22 A. That's correct. We're one of the top three 23 followed Facebook accounts of any university, and 24 we've been recognized as being a top 10 of any 25 Facebook anywhere account in terms of following and

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125 1 engagement level, and that includes corporations, 2 businesses, brands, personal celebrity sites, 3 everything. 4 Q. And you're one of the top Twitter accounts in 5 terms of followers? 6 A. Yes. And one of the top Instagram and 7 SnapChat accounts, even though we didn't cover 8 Snapchat specifically. 9 Q. Let's -- let's shift gears a minute and talk 10 about -- earlier you had said that it's easier to talk 11 about products that are not branded than products that 12 are branded. I want to just -- I know your team had 13 pulled together a number of exhibits for this 14 testimony, and we've got some examples of the branding 15 of 12th Man with respect to products that I'd like you 16 to take a look at. 17 (Opposer's Exhibit 58 offered.) 18 Q. (BY MR. CAIN) This is Exhibit 58, which is 19 Bates Nos. 451 through 745. Does this depict all of 20 the products that are branded with 12th Man? 21 A. No. This exhibit and these hundreds of pages 22 do not -- do not begin to describe all the products 23 that are branded. You know, for reference, our 24 division oversees the licensing program with almost 25 600 licensees -- just shy of 600 licensees. In the

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126 1 course of this -- of administering our trademarks in 2 this licensed space, we're working with vendors to 3 create products and then partner and sell them with 4 national retail chains. We work with both local book 5 stores as well as national retailers like Walmart, 6 Kohl's, JCPenney's, and then online leaders such as 7 Amazon and Fanatics, who lead the nation in college 8 branded merchandise. 9 Our efforts are extremely broad, 10 extremely -- believe it or not, we have a very 11 detailed and slightly complex business strategy, and 12 we manage products by channels, by category, by 13 distribution, and by audience. And we're working 14 constantly to create more opportunities for exposure 15 for the Texas A&M brand through this process. 16 Q. And when you say "the Texas A&M brand," does 17 that include the TAM -- block TAM logo and also the 18 12th Man word mark? 19 A. It does. It includes those two marks 20 specifically, as well as some of others we have 21 recorded. Overall, in totality, at retail, the value 22 of products sold at retail is approximately 23 $85 million. That was for fiscal year ending July -- 24 or June of 2016. And that's at retail, all products 25 with all trademarks. But the primary -- the majority

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127 1 of our marks have the Texas A&M primary mark and then 2 12th Man as well. 3 Q. So this Exhibit 58, was this -- was this 4 collection of pictures and website screenshots, this 5 was collected by your team of six people who were 6 looking for uses of 12th Man? 7 A. Yes, it was. To give context, our team 8 reviews and approves over 13,000 pieces of licensed 9 artwork a year. A majority of those will have -- 10 almost all of them have the primary mark and then a 11 majority of those will have some reference to the 12th 12 Man mark, whether in logo form or word form. That 13 artwork and those products are then distributed based 14 upon channel and company. 15 So this work -- these several hundred 16 pages represents products across all ranges. It could 17 be home decor, it could be youth, child, and infant 18 clothing, it could be headwear, it could be T-shirts 19 and fleece, it could be jerseys, uniforms, it could be 20 toys and games. It could be goods and services, 21 financial offerings through sponsorships and 22 partnerships. And so they could be organized by 23 vendor in this -- in this presentation in Exhibit 58. 24 They could be organized by retailer. It could be 25 organized by product category, and they -- the product

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128 1 descriptions even describe them online by these third 2 parties as the 12th Man towel or the 12th Man flag. 3 And so we have third -- we don't tell 4 these companies how to talk about our products. They 5 make those decisions on their own, and even they know 6 and are educated that the Texas A&M tradition 7 references 12th Man. In several instances we'll have 8 jewelry and charm and they'll talk about the 12th Man 9 charm or 12th Man short-sleeved T-shirt. And that 10 branding for us is international and worldwide, 11 available online and in store. 12 Q. So throughout this Exhibit 58, there are a 13 number of pages that -- that have pictures of products 14 and then there is reference underneath the picture 15 that tells either where to buy the product or where 16 the product picture came from; is that correct? 17 A. That is correct. 18 Q. And then there's also sections of this that 19 show actual screenshots from the websites of companies 20 where these products can be purchased; is that 21 correct? 22 A. That's correct. 23 Q. And so -- 24 A. This is a sampling. Again, you know, we have 25 several hundred pages. This could be several thousand

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129 1 pages if -- if that was our intent. 2 Q. Well, that was going to be my question. So 3 if I look through this Exhibit 58, is every single 4 picture in this Exhibit 58 actual products that are 5 available today with -- that are branded with Texas 6 A&M trademarks? 7 A. Yes, they are. 8 Q. And is this -- does this Exhibit 58 show all 9 of the different types of products that are branded 10 with Texas A&M trademarks and specifically with the 11 12th Man trademark? 12 A. No, they do not. 13 Q. So this was collected just as an example of 14 different types of products? 15 A. This was collected as an example, to show the 16 breadth and the depth of the use of the 12th Man mark 17 associated with the Texas A&M brand at retail. 18 MR. CAIN: Why don't we take a lunch 19 break. 20 (Lunch.) 21 Q. (BY MR. CAIN) Mr. Hinckley, you ready? 22 A. Yes. 23 Q. I'd like to direct your attention back to the 24 four trademark recommendations, Exhibits 11, 12, 13, 25 14.

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130 1 A. Yes. 2 Q. Can you, referring to those registrations, 3 tell me some of the products and services for which 4 the 12th Man mark is registered? 5 A. The 12th Man mark is registered in Classes 6 16, 20, 24, 25, 36. For example, things like 7 clothing, things like jewelry, things like goods and 8 services, entertainment, sporting -- sports 9 entertainment, marketing. There's other Classes 10 listed as well. Specifically, we're using the mark to 11 co-brand various goods and services. Some are, as I 12 mentioned earlier, in conjunction with our official 13 weather report -- 14 Q. Okay. Focusing just on the 15 recommendations -- 16 A. Okay. 17 Q. -- you've got a number of different products 18 and services that are listed there, correct? 19 A. Yes, that's correct. 20 Q. And so tell me the ones that are listed with 21 respect to those registrations. 22 A. Okay. So we have registrations associated 23 with marks in bumper stickers, postcards, note cards, 24 novelty buttons, towels, hats, T-shirts, Polo shirts, 25 golf shirts, sweaters, shorts, athletic uniforms,

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131 1 college scholarship services. We also have them in 2 jewelry, entertainment services, namely organizing and 3 conducting intercollegiate sporting events. Also have 4 them registered for use for entertainment services for 5 promoting events, including football, soccer, 6 basketball, softball, basketball, swimming, diving, 7 equestrian, tennis, that are outside of college, or in 8 addition to college. 9 Also for the arranging and conducting of 10 athletic competitions and sports camps, as well. 11 So -- and T-shirts, et cetera. 12 Q. Okay. And so just focusing on the products 13 there -- 14 A. Yes. 15 Q. -- that's -- that's for products that are 16 covered by the 12th Man registrations that you were 17 reading, correct? 18 A. That's correct. 19 Q. Do these list of products on the 12th Man 20 registrations cover all of the products with which the 21 12th Man mark is used on products? 22 A. No. The 12th Man is used on products in a 23 more -- in a broader extent than just what's listed in 24 these few Classes. 25 Q. Okay. Are there other -- so your other

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132 1 trademarks such as Texas A&M University and the block 2 TAM, are those trademarks also registered on a large 3 number of products and services? 4 A. Yes, they are. But just like the 12th Man 5 trademark, they're also used on other products that 6 are not listed in a -- a class on a USPTO registration 7 certificate. 8 Q. So for not only the 12th Man mark, but for 9 all of Texas A&M's marks, they are typically used on 10 a -- in a much wider range of products than what is 11 shown in the trademark registrations? 12 A. That's correct. And the reason for that 13 is -- is as your brand grows and -- and technology and 14 consumer demands change, you start to have products 15 that either don't fit in a class that's predescribed 16 within this administrative process, or you're starting 17 to expand to new products that weren't previously 18 considered or used. 19 For example, in tailgating there's a 20 common game such as a corn hole toss game that is -- 21 that, you know, ten years ago would never have had 22 anything licensed in it. But nowadays, there's 23 licensed games in that category, for example, across 24 multiple games and entertainment services that are 25 tied specifically to corn hole products.

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133 1 Q. And so when these registrations were obtained 2 several years ago, the description of products was 3 listed just some of the products that were in 4 existence at that time. Is that -- 5 A. Yes, at that time in accordance with the 6 dates on the registrations versus what we either had 7 them registered used in the past or what we're 8 currently using them in now. 9 Q. And so your use of the 12th Man mark on 10 products is much broader than what is shown in the 11 four exhibits that are the registration? 12 A. Yes. Just like it's much broader than the 13 sampling of products that we submitted in the exhibit 14 that -- 15 Q. Exhibit 58? 16 A. -- in Exhibit 58. 17 Q. Do you, as the vice president of brand 18 development, have an understanding of how consumers 19 come to expect collegiate branding to show up on a 20 wide range of products? 21 A. So the consumer -- yes, I do. 22 Q. Could you tell me your understanding. 23 A. Yes, I can. 24 Throughout my -- my two decades of 25 experience in retail and collegiate licensing and

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134 1 brand licensing and marketing, consumers do not 2 differentiate between a product class registration and 3 the product trademark itself. It extends into much 4 broader sense of -- of association. 5 So, for example, if I'm making product in 6 one class of products, if I'm making licensed product, 7 the expectation to the consumer is I'm making it 8 across all Classes of products. They don't 9 differentiate. 10 So if we're making sporting good apparel, 11 then we're also going to make branded footballs and 12 soccer balls and basketballs, for example. We're also 13 going to have branded headwear, for example. They're 14 going to expect that. If we're making dishes and 15 coasters and glassware, they're also going to expect 16 us to have not only general house decor but decor -- 17 in your bathroom, for example, we make soap 18 dispensers. We make rugs for in your bathroom. We 19 make shower curtains that go across your shower. 20 We're also going to make soap. We're also going to 21 make hand towels. And so all of those products, the 22 consumer doesn't differentiate at all. They simply 23 see the 12th Man brand and Texas A&M across all these 24 products. There's no differentiation in the 25 consumer's mind.

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135 1 Q. And is it your experience in interacting 2 with -- and understanding the minds of consumers with 3 respect to the types of products that are branded and 4 sold, that consumers who are looking for branded 5 products with the university brands are wanting to see 6 a very wide range across all types of products of 7 branded goods? 8 A. Yes. They absolutely want to see a wide 9 range of products. They're not looking for limited 10 selection. Consumers today want choices, want 11 options, and they want to be able to have -- display 12 their association with the school in every facet of 13 everyday life. 14 As I mentioned earlier, that's why you 15 see things like air conditioner covers or garage doors 16 that are now licensed and branded. You're also seeing 17 things like stained glass windows that are now being 18 offered and branded in school colors and symbols and 19 patterns, things that just the breadth of collection; 20 if you can think of it, experience, use it, consumers 21 want it. 22 Q. Let's talk about the licensing program at 23 Texas A&M. How is your department set up with respect 24 to the organization and -- and what services are 25 provided?

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136 1 A. So we have four positions in the -- in the 2 division that are focused solely on trademark 3 licensing and all of the activities that go with it, 4 including promotion of the brand, protection of the 5 brand, enforcement, and profit from use of the brand. 6 Those four positions ultimately report up to me in 7 oversight. 8 Their daily activities involve working 9 with our almost 600 licensed vendors, almost another 10 50 corporate sponsors; involve procuring and 11 generating new avenues of licensed product in new 12 product channels, which we would call business or 13 brand development. Those people are responsible for 14 creating new opportunities to engage with our brands 15 from an experience standpoint. So we're not only 16 seeing branded products, but we're seeing branded 17 experiences. And I'll give you an example. 18 We're working on right now that will be 19 put on at the end of this month, a branded escape room 20 that will allow our fans to come and experience an 21 escape room opportunity in a branded platform as a 22 branded experience. That will, in addition to the 23 brand in the escape room, will also involve product 24 that can be given away or purchased at the end. 25 They're also involved in enforcement

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137 1 efforts on a regular basis, making sure that our 2 contracts and agreements are up to date, that the use 3 of our brand is appearing within the scope of a 4 licensing agreement or settlement agreement. They're 5 traveling for enforcement efforts. They're working 6 with internal and outside counsel to review the 7 trademark maintenance and application of our brands 8 and the use of those brands within the appropriate 9 trademark scope. And then they're also working with 10 retailers and vendors and people who are trying to 11 develop new channels of distribution, to ensure that 12 we have the right products at the right time, at the 13 right place, at the right price. 14 Q. You said you've got approximately 600 15 licensees -- 16 A. Yes. 17 Q. -- across -- 18 A. Across all product categories. 19 Q. Where are these 600 licensees located? 20 A. They're located all over. They're located 21 all over mostly the United States, but they have 22 subsidiaries worldwide. So I might work with a 23 company like Adidas, for example, who is a licensee of 24 ours, who has offices in Boston, has offices in 25 Portland, has offices in Indianapolis, and they also

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138 1 have offices and factories that they work with as 2 subsidiaries or sourcing that are in Indonesia, 3 Bangladesh, Honduras, Nicaragua, China, Malaysia. 4 Those are -- that's kind of an example of the type of 5 companies we're working with. 6 Q. As part of your licensing efforts, do you or 7 others in your department travel to visit your 8 licensees at their office or manufacturing facilities? 9 A. Yes. We just came back from a visit last 10 week in Boston to one of our licensees. And that's a 11 regular occurrence. 12 Q. To travel to meet with -- 13 A. To travel with meet with licensees and 14 retailers as well. We also met with a retailer while 15 we were in Boston just last week. 16 Q. So you've got a retailer in Boston selling 17 Texas A&M branded products? 18 A. The national headquarters for our on-campus 19 bookstore, Barnes & Noble, is in Boston. And we met 20 with them to work out how we're going to promote and 21 implement the brand strategies at our campus bookstore 22 and online. 23 Q. Speaking of online, do you have -- are you 24 aware of the volume or types of online sales that you 25 have of branded products featuring Texas A&M's

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139 1 trademarks? 2 A. We get a report that tells us the volume of 3 Internet sales. I don't have that off the top of my 4 head. But we do get a report that we can review. 5 We're also able to determine who has rights to sell 6 into those channel ands. So we have some vendors that 7 we authorize to sell on Internet. We have other 8 vendors that we don't authorize to sell on those 9 channels. And it's based upon an overall brand 10 strategy to maximize our brand potential and our 11 profit. 12 Q. Have you seen reports that describe -- or 13 that summarize where products have been sold through 14 online sales? In other words, where the consumers 15 are? 16 A. Our team has the ability to request that 17 information from certain partners. It's not part of 18 our day-to-day operation. 19 Q. How do your licensees become licensees? 20 A. Our licensees have to go through a process -- 21 a rigorous process that includes quality control for 22 color and for brand appropriateness, product 23 appropriateness. They have to have certain minimum 24 levels of insurance for risk management purposes. 25 They have to show that they have capabilities to

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140 1 source, produce, and deliver product on time, on 2 schedule, at scale. And they have to show a 3 previous -- in most cases -- a previous ability to 4 penetrate certain retail accounts for distribution. 5 There's also a process where we choose a 6 best in class and use that best-in-class process to 7 eliminate too many licensees which can be unhealthy 8 for your program. 9 So, for example, I might have the best 10 ten T-shirt manufacturers licensed, but I only need 11 the top 50, because that becomes overkill and can 12 actually hurt your program. So we do a very 13 particular strategy that's based upon distribution 14 method; that's based on retail channel; that's based 15 on category and product, and then we apply that to 16 those people who apply and some make it and some 17 don't. And there's a review process in conjunction 18 with our licensing agency, IMG Collegiate Licensing. 19 Q. So have there been licensees who have wanted 20 to license the 12th Man mark who have been turned down 21 from becoming licensees? 22 A. Yes, there have. As a matter of fact, in a 23 sponsorship opportunity we were approached by a men's 24 deodorant company, which I'll keep off the record the 25 name, but the company was a partner of U.S. Soccer and

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141 1 requested that we grant them a license to produce -- 2 to promote their product in association with U.S. 3 Soccer and use the 12th Man trademark. 4 Q. Was that for a national -- 5 A. It was for a worldwide campaign that was 6 associated with the U.S. national team in an 7 international tournament they were competing in. 8 Q. And -- but you turned down at that 9 opportunity to license the mark? 10 A. We did. We felt that that opportunity did 11 not represent or provide benefit back to Texas A&M in 12 terms of the use of our 12th Man mark. It didn't 13 portray the 12th Man mark as it was intended to be. 14 And while we could have -- we could have received a 15 financial gain for that, in that particular instance 16 it wasn't in the best value of the brand to do so. 17 Q. Would you say that most of the merchandise 18 that is sold under the 12th Man brand is sold in -- on 19 campus in your university bookstore? 20 A. No, I would not. While it might be common 21 for other schools, that's the sole destination of 22 their product, other product is -- is sold nationally 23 and worldwide, more than just on our campus bookstore. 24 Even though the campus bookstore does a good 25 percentage of business, that percentage is in the low

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142 1 teens of our overall business, and roughly 87 percent 2 or more of our business is sold through other avenues, 3 on the Internet, national retailers and other stores. 4 Q. Do you have a feel for what percentage of 5 sales of 12th Man branded products is outside the 6 state of Texas? 7 A. I don't at this time. I believe I could get 8 that report, but I don't today. 9 Q. Let's talk about some of the enforcement 10 efforts that have been done with respect to protecting 11 the 12th Man trademark. 12 (Opposer's Exhibit 59 offered.) 13 Q. (BY MR. CAIN) And let's start off, I'll show 14 you -- let me show you what's been offered as 15 Exhibit 59. It's Bates No. 746. Can you identify 16 what that document is? 17 A. This document in Exhibit 59 is a 18 representative sampling in a spreadsheet format that 19 identifies a few of the infringers that have tried to 20 use our 12th Man mark without authorization or 21 permission or a license. And our corresponding 22 enforcement efforts and what the result of those 23 enforcement efforts were. 24 Q. How was this table created? 25 A. This table was created by my staff under my

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143 1 direction to track our efforts so that we could know 2 the volume and number of cases, the frequency of 3 cases, and the resolution of our enforcement efforts 4 in association with our -- with our trademarks and in 5 this case specifically the 12th Man. 6 Q. If you look at that table, the first column 7 says name of "Infringer." What does that indicate? 8 A. So the first column in this table -- this 9 table has four columns. The first table is the name 10 of the organization that is exhibiting unauthorized 11 use of the 12th Man trademark. So, for example, the 12 first entry is a name of Aggie Student Painting. This 13 was a private company not associated with Texas A&M 14 that was using our mark -- multiple marks, but is 15 using the 12th Man mark. And so we had called them 16 out by name. 17 The second column is a cease and desist 18 sent column. There's a "yes" offered by that example. 19 The third column is the date we sent the cease and 20 desist letter, which in this case is dated September 21 of 2013. And the resolution of that in the fourth 22 column, which is the business closed. 23 (Opposer's Exhibit 60 offered.) 24 Q. (BY MR. CAIN) And so referencing Exhibit 59, 25 if you'll take a look at Exhibit 60, which is Bates

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144 1 Nos. 747 through '49. Does that relate to -- does 2 Exhibit 60 relate to that first horizontal line under 3 the heading on Exhibit 59 where you're talking about 4 Aggie Student Painting? 5 A. It does. And as I get into the details of 6 Exhibit 60, I think it's important to note the reason 7 why we created this document in Exhibit 59 and the 8 other tracking information that we've done on our 9 trademarks. We understand that trademark law, it is 10 very important to the protection of our trademarks 11 that we own and maintain and put the resources behind 12 to be part of our brand identity. 13 We also understand that part of trademark 14 law that -- that, in a nutshell, says, if you don't 15 enforce your brand, that means that -- that can mean 16 that you don't own the trademark and you can abandon 17 the mark. And we've set out to be responsible as a 18 trademark owner in the enforcement of our brand. 19 We're not here to try to squash every single use of 20 the mark and generate damages or infringement payments 21 from that or obtain licensing agreements that pay us, 22 we're simply trying to enforce the brand quality and 23 the reputational value of the trademarks that we own 24 in accordance with trademark law. And it's 25 irresponsible of us to not police our trademarks on a

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145 1 regular and consistent basis. 2 And we've insisted in our policy, in our 3 approach, that we regularly police and enforce the use 4 of our trademarks in an appropriate way, which does 5 not always -- and for the majority does not end in any 6 payment for us. We actually expend way more resources 7 in enforcing our trademarks than we collect on any 8 licensing agreements or settlements. 9 Q. And all of the -- these enforcement efforts 10 that are listed on Exhibit 59, are these -- these are 11 efforts that were conducted through your third-party 12 licensing affiliate? 13 A. This particular spreadsheet, that's correct. 14 That's one of our resources that we use in reaching 15 out to have infringers cease and desist their use. 16 The Collegiate Licensing Company which is now known as 17 IMG Collegiate Licensing was the entity that we were 18 using in the cases cited in this spreadsheet example. 19 Q. As far as you know, is all the information on 20 this spreadsheet, Exhibit 59, correct? 21 A. Yes, it is. It is accurate, to my knowledge, 22 as far as I know. 23 Q. And so the dates that cease and desist 24 letters were sent and the resolution with respect to 25 use of the 12th Man mark, all -- all of the

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146 1 information in those two columns is correct? 2 A. Yes, all of those columns of information on 3 dates sent and resolution of the situation is 4 accurate. 5 Q. So this -- this Exhibit 60 that you're 6 looking at, that refers to the first entry on 7 Exhibit 59, the Aggie Student Painting where the cease 8 and desist letter was sent and then eventually the 9 business was closed so they stopped using the 12th Man 10 mark? 11 A. That's correct. 12 (Opposer's Exhibit 61 offered.) 13 Q. (BY MR. CAIN) Okay. Take a look at 14 Exhibit 61. This is a similar cease and desist letter 15 for the second listed entry on Exhibit 59? 16 A. Yes. This is a cease and desist letter is 17 Exhibit 61 to Aggielandtickets.com who was 18 unauthorized in the use of their marks to promote 19 their goods and services. The letter was sent, as it 20 indicates, on -- in May of 2013. And the resolution 21 is that the company complied, capitulated to our cease 22 and desist letter and our request. 23 Q. And that's Exhibit 61 which is Bates Nos. 750 24 through 756? 25 A. Yes, that is correct.

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147 1 (Opposer's Exhibit 62 offered.) 2 Q. (BY MR. CAIN) Take a look at Exhibit 62, 3 which is 757 and 758. Can you identify that? 4 A. Yes, this is a cease and desist letter to 5 Aggswaggear sent in February of 2012 for the 6 unauthorized use of our trademarks including the 12th 7 Man mark, and the resulting action was that the 8 website came down and they capitulated to our demands. 9 (Opposer's Exhibit 63 offered.) 10 Q. (BY MR. CAIN) Take a look at Exhibit 63 11 which is pages 759 through 761 and identify that. 12 A. Yes. Exhibit 63 was a cease and desist 13 letter sent by, at the time, the Collegiate Licensing 14 Company to Around Aggieland for the unauthorized use 15 of our 12th Man mark. The letter was sent in January 16 of 2013, and the company capitulated with our request 17 to cease use of the mark. 18 Q. Are we on 64 now? 19 A. Uh-huh. 20 (Opposer's Exhibit 64 offered.) 21 Q. (BY MR. CAIN) Pages 762 through 764. 22 A. Exhibit 64 was to one of the Toyota 23 dealerships, Atkinson Toyota, for the unauthorized use 24 of our trademarks, both 12th Man and other marks. It 25 was sent this -- this letter was sent in April of 2013

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148 1 requesting that they cease use, and we received a 2 letter back confirming receipt of the letter and 3 acknowledging that they would discontinue use of the 4 marks going forward. 5 (Opposer's Exhibit 65 offered.) 6 Q. (BY MR. CAIN) Can you look at Exhibit 65, 7 which is 765 through 767, and identify that? 8 A. Yes. Exhibit 65 is a cease and desist letter 9 to the Cake Junkie, a company that was using our marks 10 in consumables, including the 12th Man mark in 11 addition to others. It was sent on February of 2012, 12 and they -- the Cake Junkie Company capitulated to our 13 request and ceased using the marks. 14 (Opposer's Exhibit 66 offered.) 15 Q. (BY MR. CAIN) Would you take a look at 16 Exhibit 66, which is pages 768 through 772 and 17 identify that. 18 A. Exhibit 66 is a cease and desist letter sent 19 to Celtic Realtors who was -- who were using our 12th 20 Man mark and other trademarks and images of the 21 university inappropriately in connection with their 22 realty business and services. And that was sent in 23 May of 2013, and they discontinued use of the mark and 24 took all images down and discontinued promoting their 25 services by the use of the 12th Man mark.

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149 1 (Opposer's Exhibit 67 offered.) 2 Q. (BY MR. CAIN) And take a look at Exhibit 67, 3 which is pages 773 through 775. And please identify 4 that one. 5 Okay. Take a look at Exhibit 67, which 6 is page 773. Can you identify that one? 7 A. Yes, I can. This is a letter -- cease and 8 desist letter sent in December of 2010 to -- excuse 9 me, in November of 2010 to a Chevy dealership in 10 Dallas, Texas. They were -- unauthorized use of the 11 university trademarks, and the resolution was that 12 they ceased use on those marks. 13 (Opposer's Exhibit 68 offered.) 14 Q. (BY MR. CAIN) Can you take a look at Exhibit 15 68, which is Bates Nos. 774 through 781 and -- 16 A. Yes, this is -- 17 Q. -- identify that? 18 A. This is a cease and desist letter in Exhibit 19 88 sent to Montelongo's Fine Jewelry. Montelongo's 20 Fine Jewelry produced an promotional video advertising 21 their jewelry services and products, and produced the 22 video several images and references of our 12th Man, 23 Home of the 12th Man, and other Texas A&M marks. And 24 we asked them to cease and desist. This letter was 25 sent on April of 2013, and they removed the video from

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150 1 circulation at our request and agreed not to use our 2 trademarks for further promotion of their business. 3 (Opposer's Exhibit 69 offered.) 4 Q. (BY MR. CAIN) Please take a look at 5 Exhibit 69 which is pages 782 through '84 and identify 6 that. 7 A. This is a cease and desist letter sent on 8 February of 2012 to Fabulous Fare. The company was 9 using our 12th Man and other university trademarks in 10 an unauthorized use and manner. We requested that 11 they cease all use and agree not to use it going 12 forward, and the resolution was they capitulated to 13 our demands. 14 (Opposer's Exhibit 70 offered.) 15 Q. (BY MR. CAIN) Please take a look at 16 Exhibit 70, which is pages 785 through '87. Identify 17 that. 18 A. Exhibit 70 is a cease and desist letter sent 19 to Fat Burger Grill, at that time was using our Texas 20 A&M mark and our 12th Man marks. The letter was sent 21 in December of 2011. They were using those marks to 22 promote their restaurant and their services. They 23 agreed to discontinue use of those marks and 24 capitulated to our demands. 25 (Opposer's Exhibit 71 offered.)

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151 1 Q. (BY MR. CAIN) If you would take a look at 2 Exhibit 71, which is Bates Nos. 788 through 807. 3 Identify that. 4 A. This is a cease and desist letter sent by our 5 licensing agency on November 20th, 2014 to a company 6 called Chasing Trends that was using our 12th Man mark 7 and product -- on product without authorization. This 8 company was doing so through the use -- on the 9 Internet and selling unauthorized product and 10 descriptions. And we sent this again in November 11 of 2014, and we -- they capitulated and removed the 12 product and the uses from their website. 13 (Opposer's Exhibit 72 offered.) 14 Q. (BY MR. CAIN) Take a look at Exhibit 72, 15 which is pages 808 through 813. Identify that, 16 please. 17 A. This is a cease and desist letter sent on 18 January of 2014. It was sent to a company that was 19 producing unauthorized product bearing Texas A&M 20 trademarks, "I am the 12th Man," "Home of the 12th 21 Man," et cetera. We asked them to cease and desist 22 use and remove the product from their site, and they 23 capitulated to our demands. 24 (Opposer's Exhibit 73 offered.) 25 Q. (BY MR. CAIN) Please take a look at

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152 1 Exhibit 73, which is pages 814 through 820. 2 A. This is a cease and desist letter in 3 Exhibit 73 that was sent to Kate's Coasters. Kate's 4 Coasters was producing coasters for numerous schools, 5 including Texas A&M, that were unauthorized and 6 without a license, including the use of our 12th Man 7 mark. This cease and desist letter was sent in April 8 of 2014, and they ceased use of the mark and 9 capitulated to our demands. 10 (Opposer's Exhibit 74 offered.) 11 Q. (BY MR. CAIN) Please take a look at 12 Exhibit 74 which is pages 821 through 823, and 13 identify that one. 14 A. This was a cease and desist letter from our 15 licensing agency in Exhibit 74, sent on January 16 of 2013 to the national grocery chain Kroger, who was 17 operating at that time stores in Texas and using 18 the -- it exhibited the unauthorized use of our 12th 19 Man mark and other phrases. We asked them to cease 20 and desist, and they acknowledged that they should not 21 be using them and ceased all promotion with the use of 22 Texas A&M intellectual property. 23 (Opposer's Exhibit 75 offered.) 24 Q. (BY MR. CAIN) Please take a look at 25 Exhibit 75, which is pages 824 through 828, and

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153 1 identify that. 2 A. This is a cease and desist letter from our 3 licensing agency on Exhibit 75, sent on February 5th 4 of 2014 to a company located in Hawaii. That company 5 was using our website to promote products and goods 6 and services in association with the 12th Man 7 trademark, offering a 12-percent discount on vacations 8 in Hawaii and also trying to associate the 12th Man 9 mark inappropriately with the Seattle Seahawks during 10 this time. They capitulated to our request and ceased 11 use. 12 Q. So at the time that this was sent, the 13 Seattle Seahawks were a licensee of Texas A&M, 14 correct? 15 A. Yes. In 2014, the Seattle Seahawks had just 16 appeared -- or made a title run in the NFL. They were 17 under license to use the 12th Man mark in a limited 18 fashion, but that license did not extend to other 19 people to tie their businesses or their services to 20 that mark, which they did so; and they acknowledged 21 our ownership of the mark and ceased use. 22 Q. Did you notice in the time frame when Seattle 23 had couple of successful years, that -- and appearing 24 in the Super Bowl and deep into the playoffs, that the 25 enforcement efforts of the 12th Man mark seemed to

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154 1 increase? 2 A. Yes, we did. During those successful playoff 3 runs that Seattle had, we noticed that the general 4 public, specifically in the Pacific Northwest, but 5 nationally as well -- for example, this was in 6 Hawaii -- we saw a larger and for frequent 7 unauthorized and infringing use of 12th Man product. 8 12th Man product, trying to tie it back to Seattle and 9 the popularity of the team as it grew, even though 10 they operated under a license from us and there was a 11 lot of media coverage about the license at the time. 12 There were people that were basically just being 13 dishonest in their use and trying to gain a profit 14 from tying the 12th Man brand to Seattle through their 15 colors and their schemes and their logos and their 16 product. 17 Q. And the proliferation of misuse of the 12th 18 Man trademark in and around the Seattle Seahawks' 19 popularity, was that limited just to the Seattle area, 20 or did you find that in a much broader -- 21 A. We found it -- we found it in a much broader 22 area because of the prevalence of the Internet and 23 social media, which basically made those mediums 24 worldwide. And so we had to deal with this issue in 25 multiple locations. The Seattle area, obviously, was

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155 1 an area of immediate concern and we did enforcement 2 visits there regularly. However, we saw this scope 3 and creep of the use of 12th Man in that association 4 spread beyond that during those few years. 5 (Opposer's Exhibit 76 offered.) 6 Q. (BY MR. CAIN) Please take a look at 7 Exhibit 76 which is pages 829 through 831, and 8 identify that one. 9 A. Exhibit 76 is a cease and desist letter sent 10 to Party Time Rentals by our licensing agency, asking 11 them to cease and desist use of the 12th Man and other 12 Texas A&M marks, and they capitulated to our demands. 13 The date on this use -- or the date on this letter was 14 April 2012. 15 (Opposer's Exhibit 77 offered.) 16 Q. (BY MR. CAIN) Look at Exhibit 77, which is 17 pages 832 through 834 -- 18 A. Yes. 19 Q. -- and identify that one. 20 A. This is a cease and desist letter in 21 Exhibit 77, sent to the Polaris Fun Center on November 22 of 2011, where they were using the university's marks, 23 including the 12th Man trademark, in an unauthorized 24 manner to promote their goods and services. And the 25 company ceased use and capitulated to our demands.

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156 1 (Opposer's Exhibit 78 offered.) 2 Q. (BY MR. CAIN) Please look at Exhibit 78, 3 which is page 835, and identify that one. 4 A. Exhibit 78 is a letter that was sent -- a 5 cease and desist letter sent in September of 2009 to 6 Reebok International at the time who was producing 7 product for the NFL and calling the product 12th Man 8 headwear. This Reebok obviously was the rights holder 9 to the NFL at this time and had the licensing 10 agreement for the NFL. What they had no licensing 11 agreement with Texas A&M for use of the 12th Man. We 12 asked them to cease producing 12th Man headwear and 13 describing and promoting their product as 12th Man 14 headwear for all the NFL teams. And Reebok 15 discontinued use of that mark and quit production of 16 those goods and services with the 12th Man descriptor. 17 (Opposer's Exhibit 79 offered.) 18 Q. (BY MR. CAIN) Please take a look at 19 Exhibit 79, pages 836 through 840, and describe that 20 one for me. 21 A. This is Exhibit 79 is a cease and desist 22 letter sent on February of 2014 to Arcade Designs. 23 Arcade Designs was using the 12th Man word mark 24 without authorization from the university, and in -- 25 in the sale of products associated with the Seattle

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157 1 Seahawks -- this was an online infringer, and they 2 were using both on their product and in the descriptor 3 of the product online, using the 12th Man mark to 4 describe it, as well as to brand the product with the 5 logo and the trademark. They ceased use and 6 capitulated to our demands. That letter, again, was 7 February of 2014. 8 (Opposer's Exhibit 80 offered.) 9 Q. (BY MR. CAIN) Please take a look at 10 Exhibit 80, which is pages 841 through 843, and 11 describe that one for me. 12 A. This is a letter sent -- a cease and desist 13 letter in Exhibit 80, sent in February of 2014 to a 14 company called Ten Club. Ten Club was using the 12th 15 Man word mark, and they were doing so to promote their 16 goods and services to sell product in association with 17 the Seattle Seahawks and their Super Bowl runs during 18 that time frame. They capitulated to our demands and 19 ceased use of the mark in all promotions. 20 (Opposer's Exhibit 81 offered.) 21 Q. (BY MR. CAIN) Take a look at Exhibit 81, 22 which is pages 844 through 846, and describe that for 23 me. 24 A. Exhibit 81 is a cease and desist letter sent 25 to an individual, a Ms. Rebecca Boenigk. Rebecca was

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158 1 a private citizen running for a Texas political office 2 and was using our trademarks to promote association 3 with Texas A&M, including our 12th Man mark, to 4 apparently try to help her gain stature in her 5 campaign due to popularity of our Texas A&M 12th Man 6 mark. This cease and desist letter requested her to 7 discontinue use. And in accordance with university 8 policy and state statues where our intellectual 9 property cannot be associated with political activity, 10 she agreed to cease and desist and capitulated to our 11 demands. 12 (Opposer's Exhibit 82 offered.) 13 Q. (BY MR. CAIN) Please take a look at 14 Exhibit 82, pages 847 through 851, and identify that 15 one for me. 16 A. This is a cease and desist letter in 17 Exhibit 82 that was sent to TNT Graphics Pro, an 18 online company selling product, on May 28th of 2013. 19 Also copied on this was the Heisman Trophy Trust in 20 New York City. And this company was attempting to use 21 our mark -- our Home of the 12th Man mark on their -- 22 on their product and use imagery that also associated 23 the Heisman Trophy pose from Johnny Manziel when he 24 won the Heisman Trophy, and infringing upon the 25 Heisman Trust mark.

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159 1 As far as the Texas A&M mark and use of 2 the 12th Man and other marks, the company capitulated 3 to our demands and ceased use. 4 (Opposer's Exhibit 83 offered.) 5 Q. (BY MR. CAIN) Exhibit 83 is pages 852 6 through 875. Can you identify that one for me. 7 A. This is a cease and desist letter from 8 Exhibit 83, sent in June of 2015, to an online company 9 called Want This Tee operating out of Canada. At the 10 time they were using unauthorized marks from Texas 11 A&M, as well as other schools and institutions, 12 including our 12th Man mark, and using them on 13 T-shirts that they were selling online. We requested 14 that they cease and desist the sale of all products 15 and goods, and they capitulated to our demands. 16 (Opposer's Exhibit 84 offered.) 17 Q. (BY MR. CAIN) And finally in this group, if 18 you can take a look at Exhibit 84, which is Pages 876 19 through 879, and identify that one. 20 A. This is a cease and desist letter in 21 Exhibit 84, sent in April of 2014, to the Ware County 22 Touchdown Club in Waycross, Georgia. This was an 23 organization that represented an athletic booster 24 program of a school in Georgia, and they promoted 25 themselves as the loudest place on earth, showed a

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160 1 picture of their stadium, and right above it showed a 2 picture of Texas A&M's stadium with our Home of the 3 12th Man phrase, trying to tie an analogy to Texas A&M 4 being the 12th Man, and promoting the sale and support 5 of high school football for Ware County High School. 6 When they received notice of our cease 7 and desist letter, they agreed to stop all use and 8 capitulated to our demands. 9 Q. So this was a high school in Georgia who was 10 trying to model themselves after Texas A&M's 12th Man? 11 A. Yes. Imitation is the best form of flattery 12 at times, but in trademark situations it can be the 13 worst. 14 Q. So all of these enforcement letters we just 15 looked at, which is Exhibit 60 through Exhibit 84, 16 each one of those letters is offered in your table on 17 Exhibit 59; is that correct? 18 A. Yes, each one of those letters in those 19 exhibits we just went through is offered in that 20 table. 21 Q. That table, Exhibit 59, is a summary of all 22 of these letters we just went through quickly? 23 A. Yes. 24 Q. And all of this group of letters was all sent 25 on behalf of Texas A&M through your licensing agency;

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161 1 is that correct? 2 A. That's correct. One of our avenues of 3 enforcement is dealing with our licensing agency who 4 helps us in generate both awareness and cease and 5 desist letters and legal enforcement. At the time we 6 were using them on a much broader, but today we're 7 using them just for products. And we use our outside 8 counsel for issues related specifically just to the 9 12th Man going forward. 10 MR. CAIN: Can you read the last answer, 11 please. 12 (The requested portion was read back.) 13 THE WITNESS: Clarify if you need it. 14 MS. KNIGHT: We'll wait to you get back. 15 (Break.) 16 Q. (BY MR. CAIN) I do just want to follow up on 17 your last response. When you were referring to the 18 work that was done by CLC, you said at the time they 19 were handling certain of your enforcement efforts. 20 What time period were you referring to? 21 A. I was -- I was referring to a time period 22 from about 2008 to about 2000 -- sorry, from about 23 2009 to about 2014 or '15. But -- but that did not 24 mean that they were exclusively handling that for us. 25 They just had a broader role in our enforcement

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162 1 efforts. We've been using outside counsel the entire 2 time in dealing with the 12th Man trademark situation. 3 But we are shifting and have shifted to a strategy 4 where we're asking our licensing agency to focus more 5 specifically on product infringement, where goods and 6 services and sponsorship infringement will be dealt 7 with either through our outside counsel or through 8 our -- another multimedia rights holder that we have. 9 Q. Okay. And this -- this stack of cease and 10 desist enforcement type letters through CLC that we 11 just looked at which were Exhibits 60 through 84. Is 12 that of the cease and desist efforts that CLC was 13 associated with? 14 A. No, there's a lot more. That's just a 15 sampling representative of some of our work we have 16 done in 12th Man, but they have been doing others for 17 us over the years. And other companies before them 18 that were licensing agencies. 19 Q. So this is a small percentage of the totaling 20 effort -- 21 A. It's a small sampling of the total effort. 22 (Opposer's Exhibit 85 offered.) 23 Q. (BY MR. CAIN) Okay. I want to talk -- let's 24 move towards some of your enforcement efforts 25 involving outside counsel. And we've talked several

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163 1 times already about the involvement with Seattle. So 2 let's -- let me have you take a look at, it's 3 Exhibit 85, which is pages 880 through 895. And why 4 don't you tell me what your -- well, first of all, 5 this document was dated in 2006. So this was before 6 your time at Texas A&M, correct? 7 A. Yes. Exhibit 85, dated 2006, was before my 8 employment at Texas A&M, but I was aware of the 9 document -- or excuse me -- I was aware of the lawsuit 10 during my time at Utah because it was national news. 11 Q. And so this -- this Exhibit 85, this is the 12 actual complaint that Texas A&M filed against the 13 Seattle Seahawks in 2006? 14 A. Yes, it is. 15 Q. So -- and you were in Utah at the time, but 16 you said you were aware of this lawsuit because it was 17 national news? 18 A. Yes, I was aware of it, and I was at Utah. 19 As a matter of fact, in my professional development 20 organization I actually shared a news story with the 21 entire national organization that was about this 22 specific issue and mentioned that this was 23 interesting -- going to be interesting case law, 24 should the lawsuit continue. 25 (Opposer's Exhibit 86 offered.)

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164 1 Q. (BY MR. CAIN) And let me have you take a 2 look at Exhibit 86, which is pages 896 through 897. 3 Can you identify that for me. 4 A. Exhibit 86 is a news organization out of Fort 5 Worth story that is by Jeff Caplan. It was dated 6 January 30th, 2006. It was a news story entitled the 7 "12th Man campaign irks Texas A&M." It talks about a 8 Seattle Seahawks Super Bowl run back at that time 9 period and that the Texas A&M tradition which 10 supersedes their use of the mark dating back to 1922, 11 and also acknowledging our historic trademark 12 registrations on the 12th Man in 1990 and 1996. 13 The article goes on to talk -- compare 14 the two organizations' use of the mark, notices -- or 15 puts the reader -- educates the reader onto the depth 16 and history of the tradition of the 12th Man at Texas 17 A&M versus the limited use of the 12th Man by the 18 Seattle Seahawks. And it talks about different 19 products that it's been on and all of the 12th Man 20 tradition elements that we've talked about in the 21 past. 22 Q. And so this is an example of the national 23 news coverage of this lawsuit between Texas A&M and 24 Seattle Seahawks? 25 A. Yes, it is. This would be similar to an

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165 1 article that I had found or seen at the time and 2 shared with all the -- all the national colleagues in 3 higher Ed -- education nationally at the time. 4 Q. And were you aware of many other similar 5 articles that were in existence at the time talking 6 about this specific lawsuit and the 12th Man 7 trademark? 8 A. I remember it being a topic of news, of 9 conversations, sports talk radio, which at that time 10 was much larger and involved, as well as media stories 11 as well. 12 (Opposer's Exhibit 87 offered.) 13 Q. (BY MR. CAIN) Can you take a look at 14 Exhibit 87, which is pages 899 through 907 and just 15 identify what that document is. 16 A. Exhibit 87 is the settlement agreement in the 17 United States District Court between Texas A&M and the 18 Seattle Seahawks, and it settles the lawsuit. And 19 it's dated -- executed 2006. I'm very, very familiar 20 with this document because this document went on to 21 define the use -- the permitted use of 12th Man by 22 Seattle, and it forms essentially a licensing 23 agreement between the university and Seattle. 24 This document was used in our enforcement 25 efforts for over ten years, while I was at Texas A&M

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166 1 roughly eight of those ten years that this agreement 2 was in effect. And the agreement was a very limited 3 use of the 12th Man trademark. It did not allow 4 Seattle to produce merchandise, for example, only 5 Texas A&M could have 12th Man merchandise. It only 6 allowed Seattle to use 12th Man in a limited marketing 7 sense to season ticket holders, also to talk to the 8 fans that showed up for game day in a limited 9 marketing sense. 10 That brand was not to be broadcast or 11 marketed beyond the general territory of the Pacific 12 Northwest. It was before the days of social media. 13 The -- some limited uses of the mark were allowed 14 inside the stadium where they could reference Home of 15 the 12th Man or reference the 12th Man in general, 16 send some marketing pieces by mail or email to their 17 season ticket holders, and generally had to attribute 18 publicly, both in the stadium which we verified and 19 have seen, and online, an attribution statement 20 acknowledging that the 12th Man is the trademark owned 21 by Texas A&M and licensed to Seattle under a licensing 22 agreement. 23 Q. So, for instance, on the Seattle Seahawks' 24 website, they had to attribute trademark rights to 25 Texas A&M under 12th Man?

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167 1 A. Yes, they did. 2 (Opposer's Exhibit 88 offered.) 3 Q. (BY MR. CAIN) Would you take a look at 4 Exhibit 88, which is pages 908 through 913. Is this 5 an example of the Seattle Seahawks' website where they 6 attribute Texas A&M and 12th Man? 7 A. Exhibit 88 is an exhibit of the Seattle 8 Seahawks' website. The Seattle Seahawks' website, on 9 the bottom of their main page, they have an 10 attribution statement, and it says that "The term 12th 11 Man is a trademark of Texas A&M University and its use 12 is pursuant to a license agreement with the 13 university." 14 Q. Okay. So these -- these four exhibits that 15 we've looked at, 85, 86, 87 and 88, all dealing with 16 Seattle, the Seattle lawsuit and the settlement was 17 done prior to you coming to Texas A&M, but you said as 18 a part of your job beginning almost day one, you 19 became very familiar with? 20 A. I inherited the agreement, and my job was to 21 oversee, enforce the terms of the agreement and 22 establish a relationship with the Seattle Seahawks to 23 monitor its use. 24 Q. And earlier you talked about the -- the 25 history of 12th Man, the institutional knowledge that

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168 1 you have of the 12th Man mark. And I'd like you to 2 step back and kind of give me Texas A&M's 3 understanding of the history of this lawsuit, how it 4 developed, and what led to this settlement. 5 A. Texas A&M became aware of Seattle Seahawks' 6 use of the 12th Man as the Seattle Seahawks football 7 team started to perform well and make a run on the 8 Super Bowl. Texas A&M has known, at that time -- that 9 was the 2005 season, into 2006. Texas A&M history 10 where they've been using the mark since 1922, the 11 hundreds of thousands of students that had come to 12 school here and graduated understand and having been 13 exposed to the 12th Man tradition. 14 As we've established earlier, the 15 national broadcast and the national reputation of 16 Texas A&M promoting the brand on a national level, 17 Texas A&M was -- felt that Seattle simply liked the 18 tradition that we saw -- that they saw through 19 national exposure and wanted to copy that. And that 20 they were trying to take our trademark and our brand 21 tradition and make it their own. 22 And we've talked about before imitation 23 is a form of flattery, but in this case we felt it 24 was -- it was a form of forgery or theft of our 25 intellectual property. And so when Seattle wouldn't

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169 1 respond to our request for them to sit down at the 2 table and talk about their unauthorized use, we went 3 to court and sued them. And it was very evident to 4 Seattle that they were in a position where -- where 5 first established use was clearly with Texas A&M. The 6 history was decades longer, and that they still had 7 invested some effort into the 12th Man to that date, 8 and we offered them an extremely limited license use, 9 which allowed them to maintain a limited form of use 10 within their region and their fan base, acknowledging 11 us as the owner. 12 For our situation we felt that was a very 13 positive step because it allowed us to establish with 14 an NFL team that they acknowledged our ownership and 15 rights to the Texas A&M trademark and it created a lot 16 of publicity for us in terms of a positive resolution 17 of a scenario where we were the trademark owners. 18 Q. So you saw value that the NFL would recognize 19 12th Man as a trademark of Texas A&M? 20 A. Yes, exactly. 21 Q. Referring back to Exhibit 87, which was the 22 settlement agreement that was reached in 2006, what 23 was the duration of this settlement agreement? 24 A. It was a five-year agreement with a five-year 25 rollover option, a total of ten years.

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170 1 Q. So if -- there was an opportunity for them to 2 extend the license for five years? 3 A. For both parties to extend. 4 Q. And both parties did, so it became a ten-year 5 agreement? 6 A. That's correct. 7 Q. You've already talked about the limited use 8 that they were able to make of the 12th Man mark, you 9 said Seattle was not able to use the 12th Man mark on 10 any merchandise? 11 A. That's correct. The use on merchandise could 12 have created a potential financial benefit to Texas 13 A&M, but for us the 12th Man trademark is -- you can't 14 put a price tag on it and it's worth -- it's worth 15 more than a dollar amount. And we recognized that too 16 strong of an association with another entity could 17 cause confusion in the marketplace as to who the 18 original owner was, and that's why we made this 19 limited use mark so that people would know that if you 20 want 12th Man merchandise, there's only one place 21 you're going and that's Texas A&M University. 22 Q. So did money exchange hands between Seattle 23 and Texas A&M with respect to this license? 24 A. Money did exchange hands. The license still 25 had a value, and the value was two-part. One, that an

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171 1 NFL team was acknowledging our rights to the mark, and 2 two, that they paid us a settlement fee of a hundred 3 thousand dollars plus an annual licensing fee of 4 $5,000 per year for the extreme limited use of the 5 mark. 6 Q. What was the reaction of the Texas A&M fan 7 base to this settlement agreement, and particularly 8 the settlement payments? 9 A. The Texas A&M fans were, first of all, happy 10 that Seattle acknowledged we own the mark. But at the 11 same time, they were not happy that another brand or 12 program was allowed to use the 12th Man mark. They 13 see it as theirs. They invested the effort into 14 making it what it is today and they all felt a 15 personal connection, because they are the embodiment 16 of the 12th Man personally as a group and 17 individually. And they felt, like I mentioned 18 earlier, that if we were going to allow somebody to 19 use it, that it needed to be at a significant amount. 20 And they felt anything probably short of seven figures 21 was not going to be enough. And even then they 22 probably would have still been unhappy with it. 23 Q. So after you came to Texas A&M in 2008, for 24 the first several years that you were here, you 25 conducted trips to Seattle to make sure they were

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172 1 using the license properly. I think you mentioned 2 earlier, correct? 3 A. Yes, that is correct. 4 Q. During that time frame, was there the level 5 of, I guess, prevalent third-party use of 12th Man in 6 and around the Seattle area at that time, that 7 compared to later when -- when Seattle started making 8 some playoff runs and became a little -- a little more 9 popular team? 10 A. To answer your question, no. 11 Q. Congratulations if you can answer that 12 question. 13 A. There were a couple of reasons for that. 14 After their Super Bowl run in 2005 and into '6, the 15 team broke apart and didn't perform as well. So the 16 performance and excitement about the team was not as 17 high. And second, social media hadn't really been 18 invented yet. Twitter hadn't been invented and the 19 spread of marketing and phases and terms over the 20 worldwide web and how people consumed information 21 still hadn't spread at that time. 22 It was during that first five-year 23 period, which ended in 2011, that we started to notice 24 an increase in the unauthorized use of 12th Man 25 associated with the Seattle Seahawks, and it coincided

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173 1 with the emergence of social media. And then around 2 that time, 2010 maybe, roughly, they received a new 3 head coach who had just come from a national 4 championship team in college, Pete Carroll, and Pete 5 Carroll started to manage and own the team -- or -- or 6 manage the players and the draft in a way that built 7 the program and they started to find success on the 8 field. 9 So you had the head coach, Pete Carroll, 10 who started to tweet about Seattle using the 12th Man 11 term and identifying the fan base and the marketing 12 effort with Seattle, which on social media was 13 worldwide, and it was broke -- broke the agreement 14 that we had, which they were supposed to keep it 15 within the Pacific Northwest. And since that's a 16 medium that's consumed internationally and globally, 17 there was no way to do that. 18 So subsequently we had to both address 19 Seattle's growing use of the term of 12th Man and 20 address the infringement by third parties as that -- 21 as that association grew, for those reasons. 22 Q. So this was over the -- mostly happening in 23 the second half of the initial term of the agreement 24 from 2000 -- say -- '10 to '13, '14 -- 25 A. The subsequently --

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174 1 Q. -- that time frame? 2 A. The subsequent Super Bowl runs happened in 3 the second half. Social media happened in the first 4 half. But we had to deal with enforcement. For 5 example, Seattle reached out and decided to develop a 6 new business venture in the food services category and 7 created a 12th Man Restaurant in the Seattle-Tacoma 8 Airport, which was an international airport and had, 9 you know, millions of flyers a year coming through 10 that airport and here was a 12th Man -- we had to 11 engage with Seattle's general counsel and leadership 12 to change the name of that, scale it back. We had to 13 reach out to them and ask them to not have their 14 employees or their staff use social media in 15 association with 12th Man because that was a marketing 16 effort. 17 We started to see increase in product in 18 third parties at games, we started seeing product 19 being created that was infringing upon the 12th Man 20 trademark, and it really took off during your Super 21 Bowl runs during the second half of that five-year 22 rollover. 23 Q. As the popularity of Seattle increased and as 24 their success on the field increased and as their use 25 of 12th Man increased, what did that do to the -- and

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175 1 as the -- as unauthorized third-party use of 12th Man 2 increased, what did that do to the relationship 3 between Texas A&M and Seattle Seahawks in the 2012 to 4 2014 or '15 time frame? 5 A. Well, what it did was it caused the 6 university to continually reach out and say, you're 7 not staying within the scope of your organization, 8 or -- 9 Q. Of your agreement? 10 A. Of your agreement -- excuse me -- of your 11 agreement. Or we actually requested that the 12 organization work with us to battle and enforce 13 unauthorized use of 12th Man, specifically in the case 14 when we saw the Seattle Seahawks' colors and logos 15 also being ripped off by third-party infringers in 16 promotion of products that they hadn't authorized. 17 Actually, the relationship during this 18 time of infringement got better between Texas A&M and 19 Seattle because they started to work with us in an 20 effort to enforce the proper use of 12th Man per the 21 terms of the agreement and to stop infringers that 22 were infringing upon both parties' intellectual 23 property. 24 Q. So the agreement with Seattle was set to 25 expire in 2016. Leading up to that time frame, was

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176 1 there discussions between Texas A&M and Seattle on 2 whether to continue the agreement? 3 A. There was, there was discussions. The 4 discussions were pretty intense and lasted almost 18 5 to 24 months, knowing that we were needing something 6 in place. And Texas A&M had seen the popularity and 7 growth and spread of the 12th Man mark in association 8 with our licensing agreement with Seattle through 9 social media and news reports, et cetera, et cetera, 10 increase -- increase in popularity. And we knew that 11 if we were going to continue its use, that there 12 needed to be a significant financial component to that 13 use. 14 Seattle always expressed an interest to 15 use that mark, but I think they also saw that if they 16 wanted to use it in the limited use that we had, that 17 they were going to have to pay extensively for it. 18 So during that time we negotiated a new 19 agreement that addressed social media and that it 20 could not be used on social media. It was not in 21 existence in the previous agreement. We asked them to 22 remove "Home of the 12th Man" from inside their 23 stadium, which started to become seen on national 24 broadcasts which furthered delusion of the brand 25 outside the scope of the Pacific Northwest. And

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177 1 Seattle started to move towards referencing just the 2 Number 12 without the 12th Man month year, so the 3 actual new license is they have an even more reduced 4 licensing agreement. But we received slightly more 5 money for that use. 6 Q. Okay. We'll get to that new licensing 7 agreement in just a minute. I wanted to kind of 8 continue talking about some of the press that was 9 happening during that time frame when you were in the 10 second half of the initial licensing agreement. 11 (Opposer's Exhibit 89 offered.) 12 Q. (BY MR. CAIN) So let's take a look at 13 Exhibit 89. See if you can identify that for me. 14 This is pages 914 through 916. 15 A. Exhibit 89 is a news article that says "12th 16 Man lifts CenturyLink Field into Guinness World Record 17 Book for loudest stadium." It was produced on 18 September 15th, 2013. It was produced by an employee 19 of the Seattle Seahawks, Tony Drovetto, who at the 20 time was a content manager. He tweeted about the 21 article and then he -- there was also a -- an article 22 on the Seattle Seahawks' website where they described 23 the Seattle Seahawks fan base as the 12th Man, and 24 it's online and on social media, exceeded the scope of 25 the licensing agreement.

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178 1 Q. So this is the type of use of 12th Man that 2 started to become prevalent in relation to Seattle in 3 the time frame when Seattle was starting to improve on 4 the field and become more popular, correct? 5 A. That's correct. 6 Q. But it was seen as outside the scope of the 7 agreement, so it was still something that Texas A&M 8 had to try to reign in? 9 A. It is. We had to try to enforce the 10 agreement. And this was an example, in addition to 11 the example I gave you with Pete Carroll, the coach, 12 using the 12th Man on his social media accounts. That 13 was -- that was causing problems. 14 (Opposer's Exhibit 90 offered.) 15 Q. (BY MR. CAIN) Okay. If you'll take a look 16 at Exhibit 90, which is pages 917 through 920. 17 A. Exhibit 90 is a news article that was 18 released by the NFL. It was a news article -- that 19 was written, I believe, in 2014, in January or 20 February, the first part of the year, in association 21 with another run by Seattle at the Super Bowl. And 22 the NFL.com actually wrote an article entitled, "12th 23 Man tradition started here, not Seattle." And it was 24 a profile of Texas A&M, including a tweet from Texas 25 A&M football account with our hashtag 12th Man, and it

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179 1 ran an article about how the A&M's 12th Man tradition 2 certainly predates the Seahawks version. Ours started 3 in 1922. 4 And it's just a reference point of how 5 the NFL actually recognized that, hey, the 12th Man is 6 not Seattle's mark, it's Texas A&M's, and needed to 7 clarify that. 8 (Opposer's Exhibit 91 offered.) 9 Q. (BY MR. CAIN) Take a look at Exhibit 91, and 10 describe that one for me. 11 A. Exhibit 91 is an article in USA Today, and 12 this article in USA Today was written by a reporter 13 with the Associated Press and picked up by USA Today, 14 and it's dated January of 2014. The headline is 15 "Johnny Manziel takes a shot at Seattle's 12th Man." 16 It was after Seattle had won the NFC championship. At 17 the time our current football player who had just 18 finished his 2013 season, Johnny Manziel, tweeted out 19 that the real 12th Man is at Texas A&M. Gig 'em. 20 And it was a reference to, hey, all the 21 national media was trying to associate the 12th Man 22 with Seattle, when, in fact, it was with Texas A&M. 23 It was during this time, during my interim role as 24 vice president for marketing and communications, that 25 I was fielding several national calls from media to

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180 1 talk about the 12th Man and Texas A&M and the 2 licensing agreement that we had with Seattle, because 3 we -- we were letting people know that the 12th Man 4 started with us. Reminding people of what had been in 5 the press for many, many years. 6 Q. And these exhibits, 90 and 91, are both 7 national publications that were talking about the 12th 8 Man tradition starting at Texas A&M? 9 A. That's correct. 10 Q. And these were just a couple of examples of a 11 large number of publications during that 2013-2014 12 time frame that were discussing the 12th Man trademark 13 and Texas A&M? 14 A. They're just a sampling. There was several 15 articles, including articles in the New York Times, 16 the Washington Post, other publications nationwide. 17 (Opposer's Exhibit 92 offered.) 18 Q. (BY MR. CAIN) Let me show you Exhibit 92, 19 pages -- what are the Bates Nos. On that? 20 A. The Bates Nos. 931 through 933. 21 Q. Okay. 22 A. Exhibit 92 is an article in the Houston 23 Chronicle which is the largest print publication in 24 the United States. It's dated January 22nd, 2014. 25 And it -- titled "Even if Seattle brings 12th Man to

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181 1 Super Bowl, Aggies know he's theirs." 2 It has a screenshot of a photo in the 3 article of the Texas A&M stadium, the Texas A&M Home 4 of the 12th Man sign, with our fans, the 12th Man 5 standing and waving the 12th Man rally towels; and it 6 references that "with the Super Bowl just around the 7 corner, that Texas A&M is gently reminding people who 8 the real 12th Man is." 9 And I was actually quoted in that 10 article, and "While we are excited for the Seattle 11 Seahawks success, we are also excited that they have 12 built on a great tradition, but it is important for 13 Texas A&M that people know we own it." And that was 14 my quote in the article. 15 (Opposer's Exhibit 93 offered.) 16 Q. (BY MR. CAIN) Let me show you what's offered 17 as Exhibit 93, it's Bates pages 934 through 940, have 18 you identify that article. 19 A. Exhibit 93 is a sports blog nation post, and 20 it is -- I'm sorry, Exhibit 93 is a USA Today article 21 that was repurposed on a sports blog, but it's USA 22 Today article. And it's talking about what make 23 Seattle's 12th Man so special, and the article starts 24 off talking about Seattle's season, and Pete Carroll 25 is the coach, and the loudness of the stadium. But

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182 1 then it goes on to say, "Wait, why are they called the 2 12th Man?" 3 And so then it goes on to talk about -- 4 "Well, do other teams have a 12th Man?" And it 5 references the Buffalo Bills who we have a very 6 limited licensing agreement with. And then it 7 represents another NFL team, the Indianapolis Colts, 8 who at the time were infringing upon our use and did 9 not have an agreement. And then it goes on to say, 10 "Well, wait, there's even more. The 12th Man really 11 started at Texas A&M." It even asks the question if 12 the Seattle Seahawks fans are the original 12th Man? 13 "No, not even close." It says, "Texas A&M can 14 rightfully claim to be the originators of the 15 tradition going back to 1921? And it talks about the 16 Dana -- Coach Dana Bible and the E. King Gill game in 17 January 2nd of 1922. 18 Q. This is in another national publication? 19 A. Yes, it was. 20 MR. CAIN: Let's take a quick break. 21 (Break.) 22 (Ms. Knight left the deposition.) 23 MR. CAIN: Can you read back the last 24 question and answer. 25 (The requested portion was read back.)

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183 1 Q. (BY MR. CAIN) So now in the 2015 time frame 2 there began to be a lot of discussion about the 3 renewal of the Seattle Seahawks' license between A&M 4 and Seattle and also just out in the media, correct? 5 A. That is correct. 6 Q. And at the time it was unclear whether the 7 license was going to be renewed? 8 A. At that time there was doubt because there 9 was no rollover option in the existing agreement, and 10 an entirely new agreement would have to be negotiated. 11 I had reporters calling me during this time, inquiring 12 whether we were in talks. We would give them a 13 standard answer that we are always in talks with the 14 Seattle Seahawks about the 12th Man, but when we had 15 something to report, we would. 16 I even had reporters asking me at that 17 time whether they could have exclusives on any 18 agreements that were reached, because it was a big 19 story and they wanted to be the first to report on it. 20 Q. Now, did Seattle at that time frame, 2015 21 time frame, start moving away from the use of the 12th 22 Man? 23 A. Yes. We were in talks with Seattle about 24 what a renewal agreement would look like and what the 25 terms would be defined as. And at the same time that

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184 1 we were in talks, they started to go away from the use 2 of the 12th Man, going just to the number 12, 3 referencing the plural form of 12 as 12's. They 4 would -- they removed Home of the 12th Man from their 5 inner ring within the stadium that had been seen 6 multiple times on broadcasts, national broadcasts 7 which took it beyond the scope of the 12th Man -- or 8 of the Pacific Northwest. 9 We had informed them previously that if 10 the continued use happened for those types of 11 marketing uses, that the licensing fee would increase. 12 And I believe that they wanted to have a limited use, 13 but not to the -- but to go away to something that 14 they could use on their own, that they weren't limited 15 by. 16 (Opposer's Exhibit 94 offered.) 17 Q. (BY MR. CAIN) Let me show you what's offered 18 as Exhibit 94. It's Bates Nos. 941 and 942. Can you 19 identify that? 20 A. Exhibit 94 is a Washington Post article, a 21 national media publication, that says entitled 22 "Seattle Seahawks moving away from Texas A&M Home of 23 the 12th Man." This is dated August of 2015. And the 24 lead sentence says: "Say so long to the Seattle 25 Seahawks' 'Home of the 12th Man' slogan."

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185 1 And then they went on to reference that 2 the -- signs at CenturyLink Field were being changed 3 to reduce use of the phrase as well as reducing use of 4 the phrase on social media, and that they had started 5 to create brand equity in the number 12 by itself. 6 (Opposer's Exhibit 95 offered.) 7 Q. (BY MR. CAIN) Let me show you what's offered 8 as Exhibit 95. It's pages 943 and 944. Can you 9 identify that one? 10 A. Exhibit 95 is dated August of 2015. It is a 11 CBS Sports national coverage, and it's -- it's an 12 article where they talk about Seattle Seahawks 13 removing all references to 12th Man. And it says, 14 "Why the change?" And the article says: "Well, the 15 Seattle Seahawks have never owned the phrase 12th Man, 16 it's actually Texas A&M and their fans who own that 17 phrase, and they've been using it since 1921." It 18 references the lawsuit and it references that the 19 agreement is about to expire in 2016. They also 20 reference the attribution statement at the bottom of 21 their website where the term 12th Man is a trademark 22 of Texas A&M University and its use is pursuant to a 23 licensing agreement with the school. 24 Q. And these were just a couple of examples of 25 some of the press that was swirling around at that

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186 1 time, in 2015, near the end of the Seattle licensing 2 agreement? 3 A. Yes, that was national press. A lot of 4 people were interested and talking about it at that 5 time. 6 (Opposer's Exhibit 96 offered.) 7 Q. (BY MR. CAIN) Have you take a look at 8 Exhibit 96, which is Bates pages 945 through 947, and 9 identify that one. 10 A. Exhibit 96 is an article in Forbes. Forbes 11 is a -- both a magazine and an online presence, 12 national writing presence. And its entitled, "Texas 13 A&M stands to earn more in upcoming 12th Man trademark 14 licensing negotiation as Seattle Seahawks' exposure 15 rises." 16 It goes on to talk about the current 17 financial terms and agreement, limited use terms of 18 the agreement we had with Seattle. And then it talks 19 about the -- the desire to limit the Seattle Seahawks' 20 use to just certain marketing areas, keeping them out 21 of the social media space. And that if a new 22 agreement was to be reached, it was an article that 23 speculated that our brand would be more valuable at 24 this time with their rise in media exposure, meaning 25 Seattle's rise in media exposure. And they were

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187 1 right, we were going to ask them for a lot more money 2 if we continued down this road. 3 Q. This was another one of the national 4 publications where you were quoted and contributed to 5 the information provided to the authors, correct? 6 A. That is correct. I was quoted in that 7 article and -- I'm quoted in this article as saying, 8 "Twitter and social media didn't really exist when we 9 entered into the first licensing agreement in 2006, 10 and it wasn't addressed at that time. We've had to 11 address some compliance issues as social media use 12 goes beyond the agreed upon Northwest territory, said 13 Texas A&M's interim vice president of marketing and 14 communications, Shane Hinckley." 15 Q. So about this time, when you were negotiating 16 a new contract with the Seattle Seahawks, did another 17 prominent infringing use come to the highlight? 18 A. The answer is yes. We had been dealing with 19 the Indianapolis Colts' use, unauthorized use of the 20 12th Man for a couple of years. And recent 21 enforcement efforts in Indianapolis revealed to us 22 that their growth in use of the mark had risen 23 dramatically and that they clearly were not going to 24 stop, and the Indianapolis Colts became a concern to 25 us. We're here negotiating, talking about a new

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188 1 license with Seattle, and Indianapolis Colts are 2 basically using the mark without permission, for free, 3 and trying to build their own brand upon its use. And 4 we found that to be very threatening to our trademark 5 registration. 6 Q. So how was the -- how were the Indianapolis 7 Colts using the 12th Man trademark? 8 A. They had been using it in the inner ring of 9 the stadium, putting up 12th Man inside the ring, they 10 called it a ring of honor and had names of former 11 players around that ring. They had been using it 12 internally in marketing banners and graphics inside 13 the stadium, referencing 12th Man. And they had 14 started to use it in connection with sports 15 sponsorships where they would have a company come in 16 and sponsor the 12th man of the game and bring a fan 17 out onto the field who had won a contest of the week 18 or a contest of the month and to give brand and 19 exposure to their sponsorships, and they started to 20 generate revenue off of the mark. 21 At the same time they reached out and did 22 a season ticket sale and season ticket drive where 23 they were attempting to encourage the 12th man to buy 24 season tickets, calling out their fan base by 12th man 25 and using the marks and images of the Indianapolis

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189 1 Colts and their players. 2 Q. And so what did Texas A&M decide to do then? 3 A. Due to Indianapolis' lack of response to our 4 repeated request to cease and desist, we were left 5 with no choice but to file suit in court, suing the 6 Indianapolis Colts over trademark infringement. 7 (Opposer's Exhibit 97 offered.) 8 Q. (BY MR. CAIN) And is Exhibit 97, which is 9 Bates Nos. 948 through 959, a copy of that complaint 10 that was filed? 11 A. Exhibit 97 is a copy of the trademark 12 complaint that was filed against the Indianapolis 13 Colts. 14 Q. And inside the body of that complaint, are 15 there a couple of the examples you just referred to as 16 to the way the Colts were using the 12th Man 17 trademark? 18 A. In Bates page 952, the season ticket mailer 19 "join the 12th Man," depicting the Indianapolis Colts 20 players and marks, were advertising season tickets 21 online now to the general public, calling their fan 22 base the 12th Man. They also were selling product 23 online, on Internet retail sites, describing their 24 product as Indianapolis Colts 12th Man Raschel 25 blanket. The Northwest Company, Raschel 12th Man

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190 1 throw, and it was getting more prevalent. 2 Q. So did the filing of this lawsuit generate 3 much in terms of national publicity? 4 A. This generated another storm of national 5 publicity where we had media outlets all across the 6 country covering this story when we filed. To date, 7 we were the only college that had sued one NFL team 8 and now we were suing another, and trademark -- 9 trademark pundits who follow trademark and 10 intellectual property started to comment on -- in 11 national publications and videos and news stories 12 about how we were right to enforce our use of the 13 mark. And the -- the news coverage was very positive 14 towards Texas A&M. 15 (Opposer's Exhibit 98 offered.) 16 Q. (BY MR. CAIN) Let me show you one example of 17 the news coverage, Exhibit 98, at pages 960 through 18 963. Have you identify that, please. 19 A. This is a Houston article -- Chronicle -- 20 excuse me, a Houston Chronicle article dated November 21 of 2015. Again, this is Exhibit 98. It's titled, 22 "A&M going back to courtroom over '12th Man rights.'" 23 And it's an article that covers our lawsuit against 24 the 12th -- against the Indianapolis Colts. It quotes 25 our president, it quotes our chancellor, and I believe

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191 1 that I'm also quoted in the article as well. 2 Correction, in this article, I am not 3 quoted, but in other articles I am. 4 Q. So this is just one example of a number of 5 articles that were published during this time frame of 6 November 2015? 7 A. That's correct. 8 (Opposer's Exhibit 99 offered.) 9 Q. (BY MR. CAIN) I'm going to show you this 10 next exhibit, which is 99. Bates No. Is 964. It's a 11 video exhibit. 12 (Video playing.) 13 "Adam Zucker: Welcome back. When you 14 hear the 12th Man, you think Texas A&M and the loyal 15 and loud fans of the Aggies. Mention the term in NFL 16 circles in recent years, and the deafening roar of 17 Seattle Seahawks fans come to mind. It turns out it's 18 no coincidence that both use the 12th Man as a brand, 19 and as our Evan Washburn tells us, it's another 20 example of the marriage between sports and business. 21 Shane Hinckley: When there's 102,050 22 12th Men here in the stands on game day and we have 23 our yell leaders that are leading the yells and you're 24 on national TV you understand that you are a national 25 brand, international brand even.

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192 1 Evan Washburn: The 12th Man has been a 2 brand and an identity for Texas A&M for nearly a 3 century. Its origins date back to 1922, when a 4 student named E. King Gill came down from the stands 5 to suit up during a game in which the Aggies looked to 6 be short-handed. Though he wasn't needed in the end, 7 his selfless act inspired a nickname that has endured 8 and has come to represent the Aggie spirit of service 9 and support. Today that spirit is personified by a 10 raucous student section that stands all game and is 11 guided in song and cheer by a special group known as 12 yell leaders. 13 Washburn: When I say 12th Man, what 14 comes to mind to you? 15 Zachary Lawrence, Head Yell Leader: Just 16 the willingness of students to stand up and support 17 their team out there no matter where we're at. No 18 other university in the nation has 30- to 40,000 19 students coming to a football game. 20 Hinckley: The 12th Man is more than just 21 a logo. It's our identity. It's the DNA of what the 22 school is made up of. It representing the embodiment 23 of Texas A&M. 24 Washburn: Is there a monetary value that 25 can be placed on the phrase The 12th Man?

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193 1 Hinckley: No. It's invaluable to Texas 2 A&M. 3 Washburn: That's why the school decided 4 to protect the phrase by trademarking it in 1990. And 5 why they filed suit last week against the Indianapolis 6 Colts for trademark infringement. It's the second 7 time an NFL team has been sued by Texas A&M. The 8 first was in 2006. The team was the Seattle Seahawks. 9 The Seahawks fans are the loudest in the NFL, making 10 Seattle one of the toughest places to play. They've 11 also dubbed their stadium 'Home of the 12th Man,' and 12 they hoist the 12th Man flag, now a ubiquitous symbol 13 throughout the city. To avoid that lawsuit nearly a 14 decade ago, Seattle agreed to pay Texas A&M $100,000 15 up front and 5,000 each year since to use the phrase 16 in a limited capacity. That deal is set to expire in 17 July, and this time around it could be a lot more 18 expensive to negotiate. 19 Hinckley: In our agreement with the 20 Seattle Seahawks of 2006-2007, social media was not a 21 relevant issue at the time. And social media has 22 changed the way that people communicate. It's 23 constant, it's consumed by everybody, and so it 24 changes the way that we have to approach and address 25 the use of our trademarks.

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194 1 Darren Heitner, Forbes Contributor & 2 Sports Law Attorney: It's no longer about these 3 regional ties so much where Texas A&M is only using 4 Home of the 12th Man in Texas and you have Seattle 5 using it in the Northwest. Now we're talking about 6 use not only in the United States but around the 7 world. 8 Washburn: Trademark disputes in sports 9 are making headlines more and more. Last spring, VCU 10 head coach Shaka Smart accepted a job at Texas. He 11 took his frenetic style of play known as 'Havoc' along 12 with him. It turned out he could take the style but 13 not the nickname, as VCU had trademarked the name. 14 Additionally, sports personalities are trademarking 15 their own nicknames and slogans now more than ever, as 16 they seek to create a brand and cash in on it. 17 Heitner: Probably the tipping point was 18 only a couple of years ago with Marshawn Lynch and 19 'Beast Mode,' who was able to completely just exploit 20 for monetary gain that particular phrase. It was 21 reported that back in 2013 he generated mid-six 22 figures just on licensing 'Beast Mode' to third 23 parties to develop different types of products and 24 services including apparel. 25 Washburn: Whether a new deal between

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195 1 Seattle and Texas A&M will be reached remains to be 2 seen. What is clear is they have been trademarking 3 similar terms with the number 12. This season they 4 replaced 'Home of the 12th Man' with 'Home of the 5 12s,' inside their stadium. 6 Heitner: There is a situation where both 7 can peacefully co-exist and Seattle has now rightfully 8 gone its own way, earned a valuable trademark 9 registration and will be using it and has been using 10 it in conjunction with the sale of apparel and should 11 be using it in conjunction with their stadium as well. 12 Washburn: As for the Colts, Texas A&M 13 claims they've been infringing on the 12th Man 14 trademark for nine years, and the University's 15 patience has run out. 16 Zucker: Ah! Can't they get something 17 new? They got Andrew Luck, he's number 12... 18 Brian Jones: Who is 'they'? 19 Zucker: The Colts. 20 Jones: Oh, yeah, be original, you're 21 right. And -- and this is, just goes to show how huge 22 a business this is, and we look at these guys on the 23 field, and on the courts, and on the baseball diamonds 24 and other sports, and say, 'oh, it's amateurism.' 25 There's nothing amateur -- amateurish about the money

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196 1 that's being generated, even off the field. 2 Zucker: Um! 3 Rick Neuheisel: The $100,000 and $5,000 4 a year. 5 Zucker: That's a pretty good deal. 6 Neuheisel: That's going to be a much 7 better deal. 8 [Unidentified Speaker]: Yeah. 9 Zucker: It sounds like one of those 10 cable rights packages. 11 [Unidentified Speaker]: Yeah. 12 Zucker: That thing's going way up. 13 Randy Cross: There aren't -- 14 Zucker: But they did put a value on it. 15 Cross: There aren't many amateurs out 16 there that need that many attorneys. And they're 17 gonna -- they'll keep doing it and they are absolutely 18 right with Indianapolis. I don't know what the Colts 19 are thinkin'. 20 [Unidentified Speaker]: Yeah. 21 Cross: 'Cause that's just blatant. 22 [Talking over each other.] 23 [Unidentified Speaker]: Oh, yes. 24 Taylor: This is a non-starter for me. I 25 mean, trademark infringement, that goes on in every

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197 1 business around the world. It's just one school, 2 Texas A&M, stepping up and trying to protect its mark 3 that its built a brand. It's a pretty simple cut and 4 dry case. 5 [Unidentified Speaker]: Right. 6 Cross: Is there going to be another Joe 7 Moore award? 8 Taylor: I don't know if there's gonna 9 be -- 10 Neuheisel: What if, what if every team 11 started to -- 12 [Talking over each other.] 13 [Unidentified Speaker]: Protect the 14 brand. 15 Zucker: When we come back we will 16 continue with some big picks and predictions. 17 Michigan still alive in the East, going to Happy 18 Valley, while Wisconsin looks for their sixth straight 19 conference win. We'll break those down coming up 20 next." 21 (End of video.) 22 Q. (BY MR. CAIN) So how did that video come 23 about? Or the interview where you were quoted 24 throughout that video? 25 A. So Inside College Sports is a weekly

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198 1 television segment produced by CBS Sports. It's 2 broadcast weekly during the college football season 3 and is viewed by millions of people every week. They 4 reached out to us and -- to ask us about our 5 traditions, the 12th Man, due to all the media talk 6 that is surrounding our Seattle Seahawks' agreement, 7 the renewal of that agreement, the lawsuit against the 8 Indianapolis Colts, et cetera, et cetera. 9 And so we took them into the 12th Man 10 studios and actually that segment was broadcast from 11 the 12th Man studios. 12 Q. Here at Texas A&M? 13 A. Here at Texas A&M. And, you know, they 14 did -- they did their homework, they did their 15 background checks, and they understood what was pretty 16 obvious to us and the Texas A&M fans and others, 17 that -- that the 12th Man trademark was rightfully -- 18 it belongs to Texas A&M and the Indianapolis Colts 19 needed to stop. 20 Q. And so when was that segment published on 21 CBS? 22 A. It was published -- it was published either 23 in the late fall of '15 or the early -- or early -- 24 into January of 2016. I don't remember the exact 25 date, but it was right before the Seattle agreement

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199 1 expired in July of 2016. And I think they reference 2 that in the article. 3 Q. Was it still during the -- during the -- that 4 fall football season? 5 A. I believe -- I believe so. If it would have 6 gone into January, it would have gone into the bowl 7 season. So it was concurrent with the college 8 football season in 2015. 9 Q. Are you aware of how many people viewed that 10 segment and what the reaction was to people viewing 11 it? 12 A. You know, I don't have the particular ratings 13 for that show, but that show has pretty good ratings 14 nationally. Definitely got market share. And like I 15 said, they have several million viewers that see that 16 show every week. 17 Q. So ultimately, Texas A&M ended up settling 18 with the Indianapolis Colts, correct? 19 A. That is correct. 20 (Opposer's Exhibit 100 offered.) 21 Q. (BY MR. CAIN) Let me show you Exhibit 100, 22 which is Bates pages 965 through 970. Is that a copy 23 of the settlement agreement with the Indianapolis 24 Colts? 25 A. Exhibit 100 is a copy of the settlement

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200 1 agreement with the Indianapolis Colts. The 2 Indianapolis Colts decided that they did not want to 3 continue use of the 12th Man mark, which we did not 4 want to extend a license to do so. 5 In this agreement they acknowledged our 6 ownership of the mark, and they removed the 12th Man 7 from its ring of honor in the game and removed all 8 marketing efforts and references to the 12th Man 9 going -- now and going forward with an association 10 with the Indianapolis Colts football organization. 11 Subsequent enforcement visits to 12 Indianapolis in-season confirmed that they're living 13 up to the terms of their agreement. 14 Q. So this was complete capitulation, they just 15 stopped using 12th Man? 16 A. 100 percent complete capitulation in February 17 of 2016 when this was executed. 18 Q. So not long after that successful lawsuit 19 against the Indianapolis Colts, then Texas A&M renewed 20 its license agreement with the Seattle Seahawks, 21 correct? 22 A. Yes. We renewed and developed a new 23 agreement for use of the 12th Man term, starting in 24 2016. And it was a much more limited use of the 25 agreement.

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201 1 (Opposer's Exhibit 101 offered.) 2 Q. (BY MR. CAIN) Let me show you what's offered 3 as Exhibit 101. It's pages 971 through 988. And is 4 that the new Seattle license agreement? 5 A. Yes, this Exhibit 101 is the new license 6 agreement which I helped draft with our legal counsel. 7 And it addresses the ability for Seattle to use 12th 8 Man in a limited form for another five years. It also 9 continues to keep the territory of the Pacific 10 Northwest as the area they may use it in. And it also 11 reduces the ability to use it in social media, on the 12 Internet, continues to keep merchandise out of the 13 licensing agreement. They cannot use it in 14 merchandise. 15 And they have -- they had to no longer 16 use it inside their stadium in terms of Home of the 17 12th Man, referring to the 12th Man in marketing 18 efforts inside the stadium on game day. 19 And the -- for the decreased use from the 20 last one, the licensing annual royalty payments went 21 up to -- from 5,000 a year to $28,000 a year for the 22 use of the mark. 23 Q. And this agreement is in place for five 24 years? 25 A. Yes. It is in agreement for five years.

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202 1 And, you know, it's something that we'll look at again 2 at the expiration of this mark, as to whether we want 3 to continue with it or not. 4 Q. At the expiration of this agreement? 5 A. That's correct, at the expiration of this 6 agreement, whether we want to continue it or not. 7 Based upon the actions of Seattle to date 8 and their willingness to work with us in adhering to 9 the terms of the agreement, we see this as a favorable 10 opportunity, but we'll see where we're at in that next 11 round. 12 (Ms. Knight returned to the deposition.) 13 Q. (BY MR. CAIN) So now with the renewed 14 licensing agreement with the Seattle Seahawks, did 15 that bring on another wave of national press regarding 16 Texas A&M's 12th Man trademark? 17 A. Yes, it did bring on another national wave of 18 press regarding Texas A&M's 12th Man trademark. As I 19 indicated earlier, I had some reporters who wanted -- 20 if they couldn't get an exclusive, they wanted the 21 first opportunity to report. You know, these are 22 reporters from national -- nationally recognized media 23 entities like ESPN, Forbes, CBS Sports, et cetera, et 24 cetera. 25 Q. Let me show you just a few examples of this

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203 1 media that -- or the press that came out immediately 2 after the renewal of the license agreement with 3 Seattle. 4 (Opposer's Exhibit 102 offered.) 5 Q. (BY MR. CAIN) Let me show you what's been 6 offered as Exhibit 102. It's pages 989 through 992. 7 Can you identify that one? 8 A. Exhibit 102 is a Texas Tribune news article 9 dated August of 2016. The headlines reads: "Seattle 10 Seahawks to stop using 12th Man on social media, 11 according to Texas A&M." And it talks about they'll 12 have new restrictions on the agreement -- in the 13 settlement agreement, and that while they continue to 14 use it for five years, the cost to use it per year 15 will go up significantly. 16 The Texas Tribune is the largest online 17 newspaper in the state of Texas. 18 (Opposer's Exhibit 103 offered.) 19 Q. (BY MR. CAIN) I think this next exhibit is 20 maybe a collection of articles, but it's Exhibit 103, 21 pages 993 through 1002. Can you identify those 22 articles? 23 A. Exhibit 103 is a collection of national 24 articles that were published around the time we signed 25 the new agreement with Seattle. It shows articles

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204 1 that came from us, Texas A&M University. It shows 2 articles that came from the Seattle Times, such 3 headline as "Seattle Seahawks reach new 12th Man 4 trademark with Texas A&M." Referencing the removal of 5 the 12th Man -- Home of the 12th Man from inside the 6 stadium. 7 We have news -- television articles, NBC 8 telling about a story of Seattle Seahawks and Texas 9 A&M extend the 12th Man agreement. We have ESPN 10 online media reporting that the Seattle Seahawks reach 11 a five-year licensing deal with Texas A&M. We have 12 the Boston Herald referencing the agreement in a 13 newspaper article: "Seattle Seahawks and Texas A&M 14 have five-year extension for 12th Man use." 15 We have FOX News or FOX TV talking about 16 "The 12th Man legacy will continue in Seattle as Texas 17 A&M, who owns the trademark, reached a five-year 18 agreement for Seattle to continue to use the 12th Man 19 mark in a limited fashion." 20 (Opposer's Exhibit 104 through 107 21 offered.) 22 Q. (BY MR. CAIN) Let me show you Exhibits 104, 23 105, 106 and 107. Are these more examples of national 24 publications referencing the new agreement between 25 Seattle and Texas A&M regarding the 12th Man

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205 1 trademark? 2 A. Yes. Exhibit 104 represents a USA Today 3 sports article where Texas A&M reaches two new 12th 4 Man licensing agreement with the Seattle Seahawks. 5 USA Today is a national media organization. 6 You see a regional news article out of 7 the Pacific Northwest that headlines say, "You'll see 8 a lot less of the 12th Man this football season," 9 referencing the new limited use of the 12th Man mark. 10 That's Exhibit 105. 11 Exhibit 105 [sic] is a CBSsports.com 12 exhibit -- 13 Q. 10- -- which one? 14 A. I'm sorry, 106. Exhibit 106 is a 15 CBSsports.com, "Seahawks will pay nearly 150,000 to 16 Texas A&M for rights to use the 12th Man." August 17 of 2016 is the date of that article. 18 Exhibit 107, UPI, United Press 19 International: "Seattle Seahawks' deal with Texas A&M 20 football over 12th Man." Another national news 21 organization, covering the news about the new 22 licensing agreement in place with Seattle. 23 Q. So after this new agreement was reached 24 between Seattle and Texas A&M, did you receive a lot 25 of communications from media newsmen around the

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206 1 country asking for information, wanting interviews, 2 that sort of thing? 3 A. Yes. We received a lot of media requests. 4 We had a statement ready that talked about the 5 agreement. And for those who wanted us to go on 6 camera, I would arrange for myself to go on camera and 7 talk about the -- the agreement and what it meant for 8 Texas A&M. 9 Q. To your knowledge, is what we've looked at 10 today just a small percentage of the news media that 11 was covering this new agreement between the Texas 12 A&M -- between the Seattle Seahawks and Texas A&M 13 regarding use of the 12th Man? 14 A. Yes, it is a small sampling. Obviously, I 15 had lots of requests from the Pacific Northwest. I 16 had requests from New York, I had requests from 17 Bristol, Connecticut; requests from news organizations 18 within the SEC football conference that wanted to talk 19 to us about our agreement with Seattle. And it just 20 continued, the press coverage, of what we had settled 21 earlier in the year with Seattle, and continued that 22 narrative of "Texas A&M owns the 12th Man" in a 23 national and international press coverage of that 24 situation. 25 Q. Let's turn our attention to some of the other

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207 1 enforcement efforts that -- earlier we had looked at a 2 number of enforcement efforts that had been done 3 through the CLC, your licensing organization. You've 4 also talked about, you've had outside counsel handle a 5 number of enforcement efforts. And we're going to 6 look at some examples of those enforcement efforts. 7 A. Okay. 8 THE WITNESS: We're going to take a 9 break, and this is my last break and we're going to do 10 a home stretch run, see what we can do. 11 MR. CAIN: Okay. 12 (Break.) 13 Q. (BY MR. CAIN) So I want to take you through 14 some of the outside counsel enforcement efforts that 15 you've had over the last several years with the 12th 16 Man. Particularly with the increase in popularity and 17 success of the Seattle Seahawks, all the discussion of 18 the license agreement, the lawsuit with Indianapolis, 19 has -- has that caused national exposure of the 12th 20 Man brand to increase? 21 A. Yes, it has, in a broad and -- and 22 significant manner. 23 Q. Has the -- has the need to enforce against 24 infringements of the 12th Man mark also increased? 25 A. Yes, it has.

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208 1 Q. And what types of steps have you taken with 2 respect to -- we've already talked about your use of 3 CLC to do some enforcement. What types of steps have 4 you taken with respect to outside counsel, aside from 5 the lawsuits that we just talked about? 6 A. We've had to engage outside counsel much more 7 frequently for matters associated with the 12th Man 8 mark and ask them to help us navigate the various 9 infringing issues that we face. We've had to engage 10 them to reach out to Seattle who also was being 11 infringed upon due to popularity and the expansion of 12 the brand 12th Man in association with Seattle's use, 13 and ask our outside counsel to work at times with 14 Seattle against third-party infringers that started to 15 spring up on a more frequent basis. 16 For example, we would see something in 17 the marketplace that would be an infringing use of 18 12th Man. It would also be using Seattle's colors and 19 marks. So we would get an conference calls with 20 Seattle's general counsel and our general counsel, and 21 at some times coordinate a collaborative response to 22 the issue. Other times we would just advise and share 23 information. 24 It even got to a point where Seattle was 25 alerting us to unauthorized uses of the 12th Man and

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209 1 asking us to join them in situations where we needed 2 to stop infringing use of our intellectual property. 3 Q. Have there been situations where Texas A&M 4 and Seattle jointly sent cease and desist letters to 5 third parties? 6 A. Yes. There have been a few examples of those 7 where we would jointly draft cease and desist letters 8 and send them in an effort to stop unauthorized use of 9 our IP. 10 Q. Have there been examples when Texas A&M sends 11 out a cease and desist letter but then they copied the 12 Seattle Seahawks so the Seattle Seahawks were aware of 13 actions that Texas A&M was taking? 14 A. Yes, that has taken place on numerous cease 15 and desist letters as well. 16 Q. Have there been enforcement efforts where 17 Seattle involved Texas A&M in their enforcement 18 efforts? 19 A. Yes. They've reached out to an infringer and 20 let us know about the potential trademark infringement 21 by the third parties in the process of enforcing their 22 own brand. 23 Q. What percentage would you say of Texas A&M's 24 trademark enforcement efforts relate to the trademark 25 12th Man as opposed to all of the other Texas A&M

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210 1 trademarks? 2 A. I would say that at least 50, maybe as high 3 as 60 percent of our enforcement actions involve the 4 12th Man in some form or capacity, while the remaining 5 percent will include only the Texas A&M name or 6 primary brand. So the 12th Man is involved in the 7 majority of cases. 8 (Opposer's Exhibits 110 through 156 9 offered.) 10 Q. (BY MR. CAIN) I'm going to show you a stack 11 of exhibits, and I will just give them to you. 12 Actually, I will read off the exhibit number and the 13 Bates Nos. And then have you look at these as a group. 14 MR. CAIN: I've got Exhibit 109 which is 15 pages 1024 through 1026. Exhibit 110 is page 1027 16 through 1031. Exhibit 111 is page 1032 through 1035. 17 Exhibit 13 is 1051 through 1054. 18 THE REPORTER: You skipped 112. 19 THE WITNESS: You skipped that one. 20 MR. CAIN: Exhibit 112 is pages 1036 21 through 1050. 22 Exhibit 113 is 1051 through 1054. 23 Exhibit 115 -- I'm skipping 114. Exhibit 115 is 1062 24 through 1071. Exhibit 116 is page 1072 through 1078. 25 Exhibit 117 is page 1079 through 1087. Exhibit 118 is

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211 1 page 1088 through 1093. Exhibit 119 is page 1094 2 through 1099. Exhibit 120 is page 1100 through 1106. 3 Exhibit 121 is page 1107 through 1117. Exhibit 122 is 4 page 1118 through 1124. Exhibit 123 is page 1125 5 through 1130. Exhibit 124 is page 1131 through 1134. 6 Exhibit 125 is page 1135 through 1141. Exhibit 126, 7 page 1142 through 1148. Exhibit 127, page 1149 8 through 1158. Exhibit 128, page 1159 through 1162. 9 Exhibit 139, page 1163 through 1171. 10 Exhibit 130, page 1172 through 1178. 11 Exhibit 132, page 11 -- I mean, excuse me, 12 Exhibit 131, page 1179 through 1183. Exhibit 132 is 13 1184 through 1190. Exhibit 133 is page 1191 through 14 1196. Skipping 134. Exhibit 135 is page 1201 through 15 1204. Skipping 136 through 139. 16 Exhibit 140 is page 1237 through 1239. 17 Exhibit 141, page 1240 through 1247. Exhibit 142, 18 page 1248 through 1254. Exhibit 143, page 1255 19 through 1275. Exhibit 144, page 1276 through 1282. 20 Exhibit 145, page 1283 through 1288. Exhibit 146, 21 page 1289 through 1296. Exhibit 147, page 1297 22 through 1304. Exhibit 148, page 1305 to 1309. 23 Exhibit 149, page 1310 to 1316. Exhibit 150, 24 page 1317 to 1321. 25 Exhibit 151, page 1322 through 1332.

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212 1 Exhibit 152, page 1333 through 1340. Exhibit 153, 2 page 1341 through 1345. Exhibit 154, page 1346 3 through 1350. Exhibit 155, page 1351 through 1363. 4 Exhibit 156, page 1364 through 1368. 5 Q. (BY MR. CAIN) Can you take a look at that 6 stack of exhibits and characterize them for me as a 7 group? 8 A. The stack of exhibits that you just offered 9 in subsequent Bates page numbers are cease and desist 10 letters prepared by our outside counsel, after 11 consultation with our inside Office of General Counsel 12 and the Division of Trademark and Licensing on various 13 infringement activities of third parties using the 14 12th Man. They range from uses in marketing and 15 advertising on social media for products, to domain 16 name registrations, to actual products bearing the 17 marks 12th Man. 18 A large part of these are -- also include 19 products for visuals and images that also associate 20 12th Man with the Seattle Seahawks and the Seattle 21 Seahawks were copied on a majority of these cease and 22 desist letters. 23 The locations of these are worldwide. 24 For example, there's one in there that references a 25 website that was run by a company in China, called

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213 1 12thManJersey.com. That -- that specific cease and 2 desist letter allowed us to obtain the company -- was 3 forced to give up the domain name. And we are now 4 owners of the domain name, and it redirects people to 5 a website of our choosing, promoting the sale of 12TH 6 MAN/Texas A&M product. 7 Q. I think you -- you said that there's cease 8 and desist letters, but there's also domain 9 enforcement and other types of enforcement in here? 10 A. Yes. So some of them aren't technically 11 cease and desist letters. Some of them are -- 12 Q. Well, take a look, for example, at 13 Exhibit 110. What is that? 14 A. Exhibit 110 is a settlement agreement between 15 Texas A&M University and a person who has tried to 16 register a mark called "12TH MANZIEL" with the 17 trademark with the USPTO. In that agreement we asked 18 them to immediately stop all use of 12TH MANZIEL and 19 12th Man or marks confusingly similar, and asked them 20 to abandon the trademark application, which they 21 capitulated to all of our demands. 22 Q. And, for example, Exhibit 112, I think that's 23 one you offered with 12th Man Jersey? 24 A. This is a national arbitration forum and 25 Exhibit 112 decision where we had a disputed domain

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214 1 name with 12thManJersey.com, and we subsequently won 2 an arbitration, the domain name. And now the website 3 points back to Texas A&M product as opposed to 4 counterfeit merchandise being sold by this 5 organization out of China. 6 Q. Are you personally familiar with all of these 7 exhibits that we just offered and that you're flipping 8 through at the moment? 9 A. I am personally familiar with all of them, 10 and I have reviewed all of them at the time we 11 submitted them to outside counsel for action. 12 Q. And have you reviewed them again more 13 recently? 14 A. I have reviewed them recently. 15 Q. And is there a -- is there a common 16 resolution through all of these letters and decisions 17 and agreements that are set forth in this stack of 18 documents that you're looking at? 19 A. There are a set of common resolutions. The 20 majority of them ask for an acknowledgement of our 21 ownership of the 12th Man trademark, a cease and 22 desist of all further uses of the 12th Man trademark, 23 and an abandonment of any trademark registration 24 processes for confusingly similar trademarks, as well 25 as a donation and/or destruction of product that had

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215 1 been produced bearing unauthorized use of 12th Man 2 trademarks. 3 And those -- those organizations have 4 capitulated to our demands in all of these letters. 5 Q. Is it safe to say that these exhibits that 6 we're looking at right now, between -- between 109 and 7 156 -- are a representative sample of enforcement 8 efforts that have been conducted over the last few 9 years by Texas A&M with respect to the 12th Man 10 trademark? 11 A. Yes. These are not a complete listing of 12 enforcement efforts, but they're a sample to show the 13 breadth and different ways in which our enforcement 14 program has tried to enforce protection of our brand 15 and our rightful trademarks. 16 Q. Is this the majority of the enforcement 17 effort over the last few years, or is this just a 18 small percentage, you believe? 19 A. This is not the majority. This is a 20 representative sample. There have been many more 21 enforcement efforts that have been undertaken. 22 MR. CAIN: Let's take a quick break. 23 (Break.) 24 MR. CAIN: I think at this point the 25 testimony deposition of Shane Hinckley is closed.

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216 1 THE REPORTER: What about signature? 2 MR. CAIN: Yeah, he needs to read and 3 sign. 4 MS. KNIGHT: Send it to Mr. Cain for 5 signature. 6 MR. CAIN: I'm going to give her the hard 7 copies of the exhibits that we went over and the video 8 on USB that we went over. 9 (The deposition concluded.) 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25

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A 76:25 77:2,19 159:11 160:3,25 abandon 144:16 178:12 A&M 1:2,19 2:8 78:7,14,20 163:6,8,12 213:20 accurate 46:25 3:19 4:7,11 5:19 79:17 80:3,5,7 164:7,9,17,23 abandonment 47:1 48:20 49:5 6:4,6,7,8,10,16 82:11,17 83:6 165:17,25 166:5 214:23 49:7 60:7 92:14 8:15,18,19 9:9 84:18,22 85:9 166:21,25 167:6 ABC 74:9 145:21 146:4 9:23 10:4,5 85:24 86:18,23 167:11,17 168:5 ability 27:10 accurately 41:4 11:17 12:8,15 87:25 88:24 168:8,9,16,17 32:16 139:16 acknowledged 12:21,23 13:4 89:2,15,20 169:5,15,19 140:3 201:7,11 58:14 152:20 13:10,14,19 90:19 91:15,17 170:13,21,23 able 17:6,12 153:20 169:14 14:1,4,10 22:14 91:20 93:9,12 171:6,9,23 27:13 28:18 171:10 200:5 22:17,19 23:3,4 93:18,23 95:8,8 175:3,18 176:1 29:22 34:18 218:17 24:4,7,11,17 95:10,11,24,24 176:6 178:7,24 78:17 135:11 acknowledgem... 25:5,7,14,18 96:19,22 97:12 178:25 179:19 139:5 170:8,9 214:20 26:8,22,23,23 99:15,16,17 179:22 180:1,8 194:19 acknowledging 27:2,16,17,18 100:7,13,16,18 180:13 181:3,3 above-styled 1:15 148:3 164:11 27:20 28:8 29:4 101:1,3,7,13,20 181:7,13 182:11 absolutely 34:22 166:20 169:10 30:11 31:1,3,6 101:23 102:1 182:13 183:3 135:8 196:17 171:1 31:15,17 33:3 103:24 104:2,4 184:22 185:16 academic 26:14 acquired 52:2 33:18,20 34:2,7 104:5,19 105:8 185:22 186:13 66:24 78:15,15 act 192:7 34:10,12,13 105:15,22 106:5 189:2 190:14,22 acceptance 5:12 action 1:4 6:19 35:2,14,17 36:6 106:7,25 107:14 191:14 192:2,23 108:1,15 41:15 71:11 36:6,15,17 37:1 108:11 109:14 193:2,7,14 accepted 194:10 114:23 147:7 37:2,9,22 38:12 109:18,20,24 194:3 195:1,12 access 66:2 67:10 214:11 219:4 38:15,20 39:5,6 110:2,3,19,21 197:2 198:12,13 accessed 68:23 220:23,25 39:24 40:9,19 111:8 112:16 198:16,18 accessible 87:24 actionable 28:14 41:11,12 42:12 113:4 114:2,11 199:17 200:19 accolade 86:20 actions 28:8 43:5,13 44:23 115:7,11 116:6 203:11 204:1,4 accompanied 63:13 106:1 45:8,22 46:10 118:11,12,16,20 204:9,11,13,17 57:7 202:7 209:13 47:21 49:18,22 118:23 119:2,2 204:25 205:3,16 accomplishments 210:3 50:14,15 51:10 119:8,12,19,25 205:19,24 206:8 66:24,25 active 19:15 51:14 52:10,17 120:6,12 121:1 206:12,12,22 account 6:5,7,9 90:19 52:22 53:24 121:6,12,15,25 209:3,10,13,17 6:10 43:8 46:6 actively 27:1 35:5 54:4,9,25 55:9 122:9,22 123:5 209:25 210:5 46:16 48:17 74:20 88:5 55:23,24 56:5 123:8,15,22 213:6,15 214:3 119:8,8,11,24 91:24 107:11 58:5,21,25 124:3,14 126:15 215:9 219:2 120:21 121:2,3 activities 19:25 59:23 61:1,22 126:16 127:1 220:9 121:6,11,13 22:18 35:6 64:4,7,17,19,22 128:6 129:6,10 A&M's 50:24 122:19 124:11 77:25 81:9 64:25 65:3,23 129:17 132:1 54:10 77:16,17 124:25 178:25 136:3,8 212:13 65:24 66:13,15 134:23 135:23 86:1 96:1,21 accounting 80:25 activity 35:10 67:9,13 68:11 138:17 141:11 132:9 138:25 accounts 40:16 158:9 68:20,21 69:2 143:13 149:23 160:2,10 168:2 88:1 121:19 actors 95:20 69:13 70:6,21 150:20 151:19 179:1,6 187:13 122:10,11,17,20 actual 11:7 15:6 71:2,7,9,16,20 152:5,22 153:13 202:16,18 122:22 124:1,11 20:7 42:3 44:14 72:1,6,25 74:16 155:12 156:11 209:23 124:18,21,23 46:2 49:9 61:24 75:8,10,19,20 158:3,5 159:1 a.m 1:16 125:4,7 140:4 75:25 83:19,20

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THE LEGAL CONNECTION, INC. WWW.TLC-TEXAS.COM Shane Hinckley 8/8/2017 Page 19 larger 54:19 legal 29:11 41:14 161:5 162:10 licensees 19:8 135:13 154:6 165:10 161:5 201:6 209:4,7,15 125:25,25 lifts 8:22 177:16 largest 52:20 221:5 212:10,22 213:8 137:15,19 138:8 liked 118:22 59:12,24 113:9 legend 61:4 71:3 213:11 214:16 138:10,13 168:17 180:23 203:16 71:14 215:4 139:19,19,20 likeness 18:17 lasted 176:4 length 56:11 letting 27:25 140:7,19,21 likes 18:14 95:20 late 46:18 103:15 97:24 98:18 111:5 180:3 licensing 7:3,16 liking 116:21 198:23 100:1 101:10 level 11:24 18:22 7:21,23 12:5 limit 186:19 law 38:19 144:9 let's 15:22 33:10 22:5 27:10 13:12 16:20,23 limited 58:16,18 144:14,24 35:16 38:22 30:17,17,18 17:4,7 18:10,11 135:9 153:17 163:23 194:2 53:5 67:6 72:24 33:1 125:1 18:14,19,23 154:19 164:17 Lawrence 192:15 88:7 102:6,7,8 168:16 172:4 19:1,5,18,25 166:2,6,8,13 lawsuit 34:5 107:22 116:11 levels 61:14 20:3 21:1 24:12 169:8,9 170:7 59:18,19 116:1 116:13 117:6 139:24 30:3,5,6,12 170:19 171:4 163:9,16,24 120:24 125:9,9 Lexuses 83:5 32:22 35:3,8,11 176:16 182:6 164:23 165:6,18 135:22 142:9,13 library 39:9,9,11 41:14 52:14 184:12,14 167:16 168:3 162:23 163:2 39:12 41:8 42:8 58:12,20 59:21 186:17 193:16 185:18 190:2,23 177:12 182:20 license 5:19,21 79:15 82:15 200:24 201:8 193:13 198:7 206:25 215:22 9:18 35:10 75:1 102:14,21,23 204:19 205:9 200:18 207:18 letter 6:21,22,24 111:7 113:4,5 104:1 105:18,20 line 43:21 144:2 lawsuits 208:5 7:2,4,6,7,9,11 113:12,19,25 105:24 118:15 217:3 lawyer 114:2 7:12,14,15,17 114:1,4,5,12 125:24 133:25 lines 41:2 lead 124:12 126:7 7:19,20,22,24 140:20 141:1,9 134:1 135:22 link 65:4 87:7 184:24 8:2,4,6,7,9,10 142:21 152:6 136:3 137:4 115:10 118:9 leader 48:1,4 8:12,13,20 153:17,18 138:6 140:18,18 120:17 192:15 47:24 48:6,23 154:10,11 144:21 145:8,12 linked 64:8 leaders 126:6 49:6,9,10 167:12 169:8 145:16,17 links 64:21 191:23 192:12 143:20 146:8,14 170:2,23,24 147:13 151:5 117:17,19 leadership 108:6 146:16,19,22 172:1 177:3 152:15 153:3 list 13:1 15:17 174:11 147:4,13,15,25 183:3,7 188:1 155:10 156:9,10 60:7 131:19 leading 48:9 148:2,2,8,18 200:4,20 201:4 160:25 161:3 listed 15:20 175:25 191:23 149:7,8,18,24 201:5 203:2 162:4,18 165:22 120:11 122:20 learn 66:12 150:7,18,20 207:18 166:21 171:3 122:21 130:10 learning 68:21 151:4,17 152:2 licensed 20:18 176:8 177:4,6 130:18,20 leaving 16:14,16 152:7,14 153:2 30:23 31:2,5,6 177:10,25 180:2 131:23 132:6 104:19 155:9,13,20 31:12 32:6,9 182:6 184:11 133:3 145:10 LeBron 95:20 156:4,5,22 53:12 126:2 185:23 186:1,14 146:15 led 26:10 57:2 157:6,12,13,24 127:8 132:22,23 187:9 194:22 listing 74:2 93:20 112:22 158:6,16 159:7 134:6 135:16 201:13,20 121:25 215:11 168:4 159:20 160:7 136:9,11 140:10 202:14 204:11 lists 120:21 ledger 81:3 209:11 213:2 166:21 205:4,22 207:3 123:15 left 22:12 91:2 letters 9:24 29:12 licensee 30:21 212:12 litigation 13:21 104:6 182:22 88:16 89:6 31:1 64:15 licensor 64:16 24:18,24 28:23 189:4 145:24 160:14 116:24 137:23 life 36:23 40:3,9 41:14 legacy 204:16 160:16,18,22,24 153:13 43:10 115:22 little 55:5 172:8,8

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THE LEGAL CONNECTION, INC. WWW.TLC-TEXAS.COM Shane Hinckley 8/8/2017 Page 26 patterns 135:19 162:19 206:10 178:11 181:24 89:14 91:11 172:8 pay 21:11 32:21 209:23 215:18 Phantom 16:21 119:15 127:4 playoffs 153:24 32:22 144:21 Perfect 5:4,9 phases 172:19 128:13 plays 58:10 76:1 176:17 193:14 94:15 95:3,4 phone 2:6,11 piece 51:8 85:22 Plaza 3:14 44:22 205:15 96:14 99:11,13 28:17 29:10 123:16 54:8,16 87:13 payment 145:6 100:13 101:2,4 220:7,12 pieces 127:8 please 11:14 payments 144:20 perform 168:7 photo 3:11,12,14 166:16 149:3 150:4,15 171:8 201:20 172:15 4:21,24 39:1,4,8 Pinterest 6:8 151:16,25 peacefully 195:7 performance 27:8 39:17 44:21,21 121:2,3 152:11,24 155:6 pediatric 21:14 172:16 45:19 46:3 51:3 place 2:15 28:10 156:2,18 157:9 penetrate 140:4 performed 100:9 54:21 55:1 84:14 137:13 158:13 161:11 people 25:16 performs 84:2 56:15 57:8,10 159:25 170:20 190:18 29:17 31:20 perfumes 20:14 70:18 71:10 176:6 201:23 PLLC 2:4 220:5 39:22 40:25 31:8 86:16 89:3,17 205:22 209:14 plural 184:3 41:5,15,19 43:2 period 106:4 92:5 112:22 220:16 plus 25:21 171:3 51:25 54:17 161:20,21 164:9 119:17 181:2 placed 54:8 72:19 point 2:5 22:12 57:11 65:2 68:4 172:23 photography 192:25 38:14 46:16 68:10,20,23 permanently 65:7 places 193:10 90:3 179:4 72:24 73:4,6,16 57:15 89:7 photos 4:20 40:14 plaque 45:1 194:17 208:24 74:11 76:12 permission 124:8 88:23 plate 5:19,21 215:24 220:6 81:22 82:25 142:21 188:2 phrase 51:21 55:1 113:4,5,12,13 points 70:16 85:7 95:1 96:4 permitted 165:21 57:15 79:16 113:19,25 114:1 74:22 75:20 98:9 99:3,24 person 13:4,10,19 82:10 89:15 114:2,4,6,10,10 214:3 100:2 102:2 14:1 34:24 160:3 185:3,4 114:12 Polaris 8:2 109:3,16,23 43:18 48:18 185:15,17 plates 20:14 155:21 111:5 113:18 63:9 68:1 192:25 193:4,15 113:7,9 police 144:25 115:21 116:20 114:24 213:15 194:20 platform 136:21 145:3 116:21 117:11 218:15 phrases 12:22 play 33:18 38:4 policy 145:2 117:14 118:6,22 persona 106:2 57:16 152:19 58:2 75:17 158:8 118:23 120:9 personal 24:1,10 physical 82:11 92:22 93:18 political 16:6,10 124:17 127:5 24:16 25:4 picked 9:3 179:13 193:10 194:11 158:1,9 136:13 137:10 33:10 42:22 picks 197:16 played 43:6 Polo 130:24 140:16 153:19 43:7,25 44:10 picture 4:18 5:19 105:10,12 pop 105:5 154:12 170:19 44:15 46:6 49:9 54:10,11 player 37:20,20 Pope 2:18 172:20 180:3,4 47:16 48:17 55:18,21 56:6 45:3 57:19,20 popular 172:9 181:7,13 186:4 50:11 125:2 59:4 71:3,24 58:1 76:15 178:4 193:22 198:3 171:15 72:10,10 88:14 100:7 179:17 popularity 154:9 199:9,10 213:4 personalities 91:2,19 93:14 players 37:24 154:19 158:5 perceived 27:8,14 194:14 100:8 112:15 66:19 93:17 174:23 176:6,10 percent 57:12 personally 171:16 113:3,11 120:16 107:10 173:6 207:16 208:11 142:1 200:16 214:6,9 218:13 128:14,16 129:4 188:11 189:1,20 porch 31:11 210:3,5 personas 95:21 160:1,2 playing 37:22 portfolio 18:18 percentage 24:22 95:24,25 pictures 4:23 43:3 94:18 portion 161:12 32:13 57:10 personified 192:9 54:17 55:12,13 108:3 191:12 182:25 141:25,25 142:4 Pete 173:4,4,9 55:14 89:1,13 playoff 154:2 Portland 137:25

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