Trademark Trial and Appeal Board Electronic Filing System. http://estta.uspto.gov ESTTA Tracking number: ESTTA932516 Filing date: 11/01/2018
IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD Proceeding 91216455 Party Defendant Pro Era, LLC Correspondence EVITA KAIGLER Address LAW OFFICES OF EVITA G KAIGLER LLC 1440 DUTCH VALLEY PL NE STE 975 ATLANTA, GA 30324-5377 UNITED STATES [email protected] 404-249-4327
Submission Defendant's Notice of Reliance Filer's Name Evita G. Kaigler Filer's email [email protected] Signature /Evita G. Kaigler/ Date 11/01/2018 Attachments PRO ERA Notice of Reliance Exhibit C.pdf(100937 bytes ) PRO ERA Notice of Reliance Exhibit D.pdf(151628 bytes ) PRO ERA Notice of Reliance- Exhibit E.pdf(122301 bytes ) 1 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
NEW ERA CAP CO., INC., )
Opposer, ) Opposition No.
) 91/216,455
V. )
) Application
PRO ERA, LLC, ) Serial No.
Applicant. ) 85/711,680
RULE 30(b)(6) DEPOSITION
OF JO-VAUGHN VIRGINIE
New York, New York
March 23, 2016
9:56 a.m.
Reported by: JESSICA R. WAACK, RPR, RMR, RDR, CRR, CCRR JOB NO. 43309 2 1 JO-VAUGHN VIRGINIE
2 Wednesday, March 23, 2016
3 9:56 a.m.
4
5
6 RULE 30(b)(6) DEPOSITION OF
7 JO-VAUGHN VIRGINIE, held at the offices of
8 Phillips Lytle, 620 8th Avenue, New York,
9 New York, before Jessica R. Waack,
10 Registered Professional Reporter,
11 Registered Merit Reporter, Registered
12 Diplomate Reporter, Certified Realtime
13 Reporter, California Certified Realtime
14 Reporter, Notary public for the State of
15 New York and licensed in New Jersey.
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 3 1 A P P E A R A N C E S
2
3 FOR OPPOSER:
4 PHILLIPS LYTLE, LLP
5 125 Main Street
6 Buffalo, New York 14203-2887
7 Telephone: 716-847-7078
8 BY: MICHAEL J. BERCHOU, ESQ.
10
11 FOR APPLICANT:
12 KAIGLER LAW OFFICES
13 1440 Dutch Valley Pl NE
14 Atlanta, Georgia 30324
15 Telephone: 404-249-4327
16 BY: EVITA G. KAIGLER, ESQ.
18
19 ALSO PRESENT:
20 KIMBAH VIRGINIE
21
22 -o0o-
23
24
25
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 4 1 INDEX TO EXAMINATION
2 WITNESS: JO-VAUGHN VIRGINIE
3 EXAMINATION PAGE
4 BY MR. BERCHOU 7
5 BY MS. KIEGLER 42
6 BY MR. BERCHOU 45
7
8 -o0o-
9 INFORMATION REQUESTED:
10 None
11
12
13 WITNESS INSTRUCTED NOT TO ANSWER:
14 None
15
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 5 1 INDEX TO EXHIBITS
2 WITNESS: JO-VAUGHN VIRGINIE
3 NEW ERA V. PRO ERA
4 Wednesday, March 23, 2016
5 Jessica R. Waack, RDR, CRR, CCRR
6
7 MARKED DESCRIPTION PAGE
8 Exhibit 1 Notice of Deposition 7
9
10 Exhibit 2 List of Items Sold By Pro
11 Era 17
12
13 Exhibit 3 YouTube Printout of Songs By
14 Pro Era 29
15
16 Exhibit 4 Various Pictures With
17 Parental Advisory Warning 30
18
19 Exhibit 5 Email Chain Ending on
20 February 27, 2014, From
21 Domingo 34
22
23 Exhibit 6 Pictures of Hats From Pro
24 Era 37
25
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 6 1 INDEX TO EXHIBITS
2 WITNESS: JO-VAUGHN VIRGINIE
3 NEW ERA V. PRO ERA
4 Exhibit 7 Pro Era and New Era Deal
5 Memo 39
6
7 Exhibit 8 Documents Produced in
8 Response to Document Request
9 Number One 40
10
11
12
13
14
15
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 7 1 MARCH 23, 2016 9:56 A.M.
2 (Whereupon, Exhibit 1, notice of
3 deposition, marked for
4 identification.)
5 J O - V A U G H N V I R G I N I E
6 called as a witness herein,
7 having been first duly sworn on
8 oath, was examined and testified
9 as follows:
10 EXAMINATION
11 BY MR. BERCHOU:
12 Q. Good morning, Mr. Virginie. My
13 name is Mike Berchou, and I represent New
14 Era Cap, as you probably know.
15 Have you ever given a deposition
16 before?
17 A. No. First time.
18 Q. So I'm sure your attorney has
19 gone over it with you, but, essentially,
20 I'm going to ask you a series of
21 questions, and we're going to need you to
22 give audible answers.
23 The court reporter is taking
24 everything down, so she can't take down a
25 shake or a nod of the head, okay?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 8 1 A. Right.
2 Q. And if you need a break at any
3 time, just let me know.
4 A. Gotcha.
5 Q. Okay. We marked this as
6 Exhibit 1, and this is the deposition
7 notice that brings us here today. Have
8 you seen that document before?
9 A. This document?
10 Q. Yeah. Did you go over it with
11 your counsel?
12 A. Yes.
13 Q. Okay. And did you review any
14 documents in preparation for your
15 deposition today?
16 A. No, I did not.
17 Q. Your counsel has indicated that
18 you're the owner of Pro Era, LLC, is that
19 correct?
20 A. Yes.
21 Q. And are you the sole owner?
22 A. Yes.
23 Q. No one else has an ownership
24 interest in the LLC?
25 A. Well --
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 9 1 Q. If you know.
2 A. Yes, yes.
3 Q. I believe your counsel told me
4 that maybe Kimbah --
5 A. Yeah.
6 Q. -- which is --
7 A. Which is --
8 Q. -- some part owner? That's
9 correct?
10 A. Yes, that's correct.
11 Q. Anyone else other than you and
12 Kimbah?
13 A. No.
14 Q. Are you the president of the
15 company?
16 A. Yes. President and CEO, uh-huh.
17 Q. And CEO. Are there any other
18 officers of the company?
19 A. Officers in terms of?
20 Q. Vice president, secretary,
21 treasurer.
22 A. No.
23 Q. Nothing?
24 A. No.
25 Q. Do you fulfill all those -- do
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 10 1 you hold all of those positions?
2 A. Pretty much. Myself and Kimbah.
3 Q. Okay. And how many employees
4 does the company have?
5 A. Right now there is only -- just
6 two.
7 Q. Just the two of you?
8 A. Well, myself, Kim and two
9 others.
10 Q. And who are the other two?
11 A. It is a senior designer that I
12 hired.
13 Q. And what's his name or her name?
14 A. Jared Liner.
15 Q. How do you spell that last name?
16 A. L-I-N-E-R.
17 Q. Okay. And who is the other
18 employee?
19 A. No, it was Jared and Kim.
20 Q. Your attorney had produced
21 something called initial disclosures in
22 this case, and there are a couple of names
23 that are listed there.
24 First of all, what is Cinematic
25 Music Group?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 11 1 A. Cinematic Music Group is a music
2 label that I am signed to as a recording
3 artist.
4 Q. Okay. And how long have you
5 been with that label?
6 A. Since 2012.
7 Q. And who is Jonathan Shapiro?
8 A. He is the owner of the label and
9 also my manager.
10 Q. Your manager?
11 A. Yes.
12 Q. And when you say he is -- well,
13 let me -- who actually signed? Did you
14 personally sign with Cinematic Music
15 Group, or did Pro Era sign with Cinematic?
16 A. I personally signed with
17 Cinematic Music Group.
18 Q. Okay. In some of the materials
19 I've seen, Pro Era is referred to as a
20 hip-hop collective.
21 A. Right.
22 Q. What does that mean?
23 A. That means Pro Era is exactly
24 what you just stated; a hip-hop
25 collective. A hip-hop collective just
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 12 1 means a collective of individuals who --
2 it's basically like a group, but it's not
3 a group.
4 Because a group, they do
5 everything together. A collective is a
6 group of individuals, if you will, if you
7 understand, if you're following me.
8 Q. So they're all performing
9 individually?
10 A. Exactly.
11 Q. Not all on a stage at --
12 A. Yeah.
13 Q. And one thing, it's not your
14 fault. It's really my fault. We have to
15 take everything down, so we can't be
16 talking at the same time.
17 A. Okay.
18 Q. So I will try to let you finish,
19 and you try to let me finish as well.
20 A. Okay. Copy.
21 Q. So just to be clear so she can
22 get it down, can you describe again what
23 you mean by a collective?
24 A. So Pro Era, the hip-hop
25 collective basically means it is a group
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 13 1 of individuals working in their own
2 individual capacities to -- making music
3 and, you know, doing shows and stuff like
4 that, you know.
5 Q. And are these other individuals
6 in the collective members of Pro Era, LLC?
7 A. As far as...
8 Q. Do they have any interest in it?
9 Are they employed by Pro Era, LLC?
10 A. No.
11 Q. Okay. So back to some of these
12 other names. Noah Friedman, who is that?
13 A. Noah Friedman is a -- he's a
14 representative. He also co-manages me
15 along with -- damn, I forget his last
16 name. He's part of what you call Duck
17 Down. It is also an entity. It's like a
18 recording music label.
19 Q. What was that one called?
20 A. Duck Down.
21 Q. Duck Down?
22 A. Yes.
23 Q. Okay. Is he also part of the
24 Cinematic Music Group, though?
25 A. In a way. They're partnered to
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 14 1 manage me.
2 Q. Okay. And what about Dru
3 Friedman?
4 A. He's the owner of Duck Down.
5 Noah is his partner.
6 Q. And I think I've seen references
7 to 3D?
8 A. I believe that is a company that
9 they were -- I think it's Duck Down
10 Distribution, 3D.
11 Q. Gotcha.
12 A. I think it's just a short name
13 for the company, if I'm not mistaken.
14 Q. And who is Domingo Neris?
15 A. Domingo Neris is an individual
16 who helped and pretty much, you know,
17 brought together myself and some
18 opportunities with New Era.
19 Q. And he works for DMS Marketing,
20 is that correct?
21 A. The last time I checked, he
22 worked for New Era.
23 Q. You believe he works for New
24 Era?
25 A. I mean, if he didn't work for
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 15 1 New Era, he was just responsible for
2 connecting the two companies.
3 Q. Okay. And did you have personal
4 interaction with him?
5 A. Yeah.
6 Q. Okay. I'll come back to that
7 later.
8 Did you, in the course of your
9 dealings with New Era, did you have any
10 interaction with any New Era employees
11 other than Domingo?
12 A. No, not that I recall.
13 Q. How would you recall the
14 business of Pro Era, LLC?
15 A. It is a multipurpose type of
16 business. Meaning, you know, mostly
17 focused on managing artists and
18 distributing music.
19 Q. And when you say "managing
20 artists," it's the artists that are in a
21 hip-hop collective that you talked about
22 earlier?
23 A. Uh-huh.
24 Q. And how many artists are there?
25 A. There is right now just about
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 16 1 three.
2 Q. And who are the others besides
3 you?
4 A. It's myself, it's an artist
5 named Kirk Knight, an artist name Nick
6 Costra [phonetic].
7 Q. What was the first one?
8 A. Kirk Knight.
9 Q. Kirk Knight?
10 A. Yes.
11 Q. Can you give me -- I don't think
12 we've seen any documents to this effect.
13 Can you give me some approximation of what
14 the revenues of Pro Era, LLC were last
15 year?
16 A. I don't recall.
17 Q. Do you know who would know that?
18 A. Yeah. My business managers.
19 Q. And same for 2014; you're not
20 sure what the revenues would be?
21 A. Same.
22 Q. Do you have any sense of how
23 much was spent on advertising or promoting
24 the goods that are sold under the Pro Era
25 brand?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 17 1 A. I don't recall.
2 Q. And same thing, your business
3 manager would know that?
4 A. Yes.
5 (Whereupon, Exhibit 2, list of
6 items sold, marked for
7 identification.)
8 BY MR. BERCHOU:
9 Q. I'll hand you what's been marked
10 as Exhibit 2. And that's a document that
11 was produced to us in response to some
12 document requests in this proceeding.
13 Are you familiar with that
14 document?
15 A. This document? Now that I am
16 looking, yes, I am familiar with it.
17 Q. And what is that?
18 A. This is like my Shopify history.
19 Q. Shopify?
20 A. Products sold.
21 Q. Shopify is a computer program?
22 A. Yeah, uh-huh.
23 Q. And do you have a sense just
24 looking at that number if that's the total
25 amount of sales --
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 18 1 A. Well, this doesn't say any date,
2 so I'm not sure what would be the total
3 amount of sales and for what year exactly.
4 Q. And do you have any sense, just
5 based on that number, if that would
6 approximate the total amount of sales that
7 you had of caps and T-shirts and hoodies
8 and the other items that are sold that are
9 shown there?
10 A. Come again?
11 Q. Just looking at that total
12 number, $220,000, do you have a sense if
13 that is accurate for the entirety of all
14 of the sales that were made under that Pro
15 Era brand?
16 A. Yeah. I mean, it should be if
17 that's the sum of everything that's here,
18 yeah. Can't get it more approximate than
19 that.
20 Q. But you're just not sure over
21 what period of time that covers?
22 A. It looks like it covers
23 everything, from what I can see. But,
24 yeah, I'm not sure where you pulled that
25 information from exactly, to be honest.
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 19 1 Q. Who's responsible for the
2 Shopify program?
3 A. Kim.
4 Q. Who was involved in creating or
5 adopting the Pro Era trademark?
6 A. In terms of the coming up with
7 the name or --
8 Q. Correct.
9 A. -- just trademarking it?
10 Q. No. Coming up with the name.
11 A. Myself and some friends.
12 Q. Who were the friends?
13 A. One, my main friend is -- he's
14 deceased now.
15 Q. Can you just tell me the name?
16 A. Courtney Dewar.
17 Q. What was the name?
18 A. Courtney Dewar. D-E-W-A-R.
19 Q. And anybody else?
20 A. No.
21 Q. And when, approximately, did you
22 come up with that name?
23 A. Approximately 2011, 2010.
24 Q. And what does Pro Era mean?
25 A. It's actually The Progressive
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 20 1 Era. Pro Era is just for short.
2 Q. And what do you mean when you
3 say "Progressive Era"?
4 A. It's just what we stood for --
5 it is what we stand for. It is our
6 movement to be progressive in our era.
7 Q. What are some of the popular
8 brands for caps and apparel in the hip-hop
9 community?
10 A. Some popular brands for apparel?
11 Q. And caps.
12 A. There are many.
13 Q. Which ones are you most familiar
14 with?
15 A. Well, I wear many brands.
16 There's Supreme. There's 10-D. The list
17 goes on.
18 Q. Do you have sponsorship or other
19 deals with any of those companies?
20 A. Not at the moment.
21 Q. Is New Era Cap widely known in
22 the hip-hop community?
23 A. Come again?
24 Q. Is New Era Cap widely known in
25 the --
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 21 1 A. I'm not sure. I wouldn't know.
2 Q. Do you ever wear New Era Caps?
3 A. No.
4 Q. Never?
5 A. No.
6 Q. When did you first learn of the
7 New Era Cap brand?
8 A. Camp?
9 Q. Cap, New Era Cap.
10 A. I've never heard it just
11 referred to as that way, "New Era Cap."
12 But I heard about New Era from, like, you
13 know, just going to Lids as a child and
14 seeing 59, 50 hats, I guess, with New Era
15 on them.
16 Q. What products, and you can refer
17 to that Exhibit 2, if you would like, but
18 what products does New Era currently sell
19 under the Pro Era trademark?
20 A. We sell all kinds of products.
21 We sell from tees to hats to jackets to
22 socks to basketball shorts to pins,
23 stickers, lighters, you know.
24 Q. Hoodies?
25 A. Hoodies, yes, et cetera,
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 22 1 et cetera. Sweatpants and many more.
2 Q. Well, can you describe what
3 other products there are other than the
4 ones you listed?
5 A. I listed pretty much everything.
6 CDs, vinyls. Yeah, that's pretty much it
7 at the moment.
8 Q. And do you have any specific
9 plans to sell any other goods under the
10 Pro Era trademark?
11 A. Yes.
12 Q. What plans do you have?
13 A. I have plans to sell all types
14 of goods. There's really no limits to it.
15 Q. Okay. Well, what -- do you have
16 any specific plans to sell any specific
17 goods?
18 A. Yes.
19 Q. And what are those plans?
20 A. As far -- I'm having difficulty
21 understanding your question.
22 Q. Well, you've listed a number of
23 goods that you're currently selling?
24 A. Right.
25 Q. And you told me that you have
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 23 1 specific plans to sell --
2 A. And if I was to tell you what my
3 plans were on the specific goods that I --
4 like, you know, intend to sell, the list
5 would go on forever.
6 Q. Well, why don't you start.
7 A. Well, from every type of
8 clothing item, you know, from baby bibs to
9 baby clothes to jackets to women's clothes
10 and the list goes on.
11 Q. And have you taken any steps to
12 begin the process of selling any of the
13 ones that you just listed?
14 A. Selling, no; designing, yes.
15 Q. Which ones have you designed?
16 A. More specifically, jackets,
17 outerwear.
18 Q. How do you go about designing
19 those products?
20 A. I work with my designer.
21 Q. The designer that you mentioned
22 earlier?
23 A. Yeah.
24 Q. And that was Mr. Liner?
25 A. Correct.
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 24 1 Q. And how long has Mr. Liner been
2 an employee of Pro Era?
3 A. For probably just about a year,
4 I would say.
5 Q. And is he a full-time employee?
6 A. No.
7 Q. Can you give me some sense of
8 how many hours he works a week for Pro
9 Era, LLC?
10 A. It's not really -- really -- I'm
11 not really sure how to answer that
12 question. Because it's not, like, an
13 hourly type of job, you know. It's just
14 as we go.
15 Q. Can you give me some sense of
16 how many hours he's worked for Pro Era in
17 the last year?
18 A. I don't recall.
19 Q. How would I find that
20 information out?
21 A. Not sure.
22 Q. Is he -- let me just make clear.
23 Is he an employee, or is he an independent
24 contractor?
25 A. Independent contractor.
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 25 1 Q. Does he have his own company?
2 A. Yes.
3 Q. And what's the name of that
4 company?
5 A. I believe J. Liner.
6 Q. Does the company Pro Era, LLC
7 have any type of written business plan?
8 A. No.
9 Q. How would you describe the
10 customers who buy Pro Era products?
11 A. Pro Era fans.
12 Q. And can you characterize them in
13 any way?
14 A. Young kids who love hip-hop
15 music or even sometimes adults who love
16 hip-hop music.
17 Q. But, generally speaking, it's
18 people who love hip-hop music?
19 A. Yes.
20 Q. And is that the same type of
21 customer that Pro Era targets?
22 A. Yes.
23 Q. And do you know whether New Era
24 sells to or targets the same types of
25 customers?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 26 1 A. I don't know.
2 Q. Can you describe for me where
3 Pro Era is selling its products?
4 A. On the site, on the Proera.com.
5 Also when I go on the road, also sell
6 products.
7 Q. So at concert venues?
8 A. Yeah.
9 Q. How about through social media
10 at all?
11 A. That would link to our website.
12 Q. And what about any type of
13 retail store?
14 A. Zumiez.
15 Q. And what is Zumiez?
16 A. Zumiez -- how would I explain
17 Zumiez? Zumiez is a -- I'm not really
18 sure how to explain it, to be honest. But
19 it's a store, and they house a lot of
20 different brands.
21 Q. Is it a store here in the New
22 York area?
23 A. It's global.
24 Q. Okay. And they have an
25 online presence as well?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 27 1 A. Yeah.
2 Q. Are you aware that Zumiez also
3 sells New Era Caps?
4 A. No.
5 Q. What is Crooks & Castles?
6 A. It's a brand, a clothing brand.
7 Q. And do you have some sort of
8 deal with Crooks & --
9 A. No. We did a collaboration
10 project last year.
11 Q. Can you describe that for me?
12 A. It was a collaboration project
13 meaning we collab on a few pieces,
14 products, pieces, a hat. Yeah, that was
15 it, two tees and a hat.
16 Q. When you say "collaborate," can
17 you describe the process and what
18 ultimately happened?
19 A. Meaning Pro Era came together
20 with Crooks & Castles, and, you know, we
21 brought our -- basically brought our
22 aesthetics together. We merged for this
23 one capsule collection.
24 Q. And they were sold through
25 Zumiez?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 28 1 A. Yes. Via Crooks & Castles.
2 Q. When you say "via Crooks &
3 Castles," you mean it was branded Crooks &
4 Castles?
5 A. Yes.
6 Q. But it has Pro Era labels on it,
7 for example?
8 A. Uh-huh. Correct.
9 Q. And who made those caps?
10 A. Crooks & Castles.
11 Q. Are those caps still being sold?
12 A. Well, no, not that I know, to be
13 honest. I don't know if it's still in
14 Zumiez. I'm not sure if there's leftovers
15 that they're still selling or not. But,
16 yeah.
17 Q. But it's a one-time project
18 that's over, from your perspective?
19 A. Correct.
20 Q. What about Stussy? Do you sell
21 products through Stussy?
22 A. We also did a collaboration
23 T-shirt. But this was in 2012. Very old.
24 Q. So no ongoing dealings with
25 Stussy?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 29 1 A. No.
2 Q. Are you aware of any other
3 company other than Pro Era or New Era that
4 sells caps under a brand that includes the
5 word "era"?
6 A. I am aware that there are brands
7 that do exist with the name "era" that do
8 sell -- what was the classification? 25
9 items.
10 Q. Okay.
11 A. But I'm not sure what the
12 name -- or I don't recall. But I am
13 aware.
14 Q. Had you ever seen any of them in
15 stores or online?
16 A. Not that I can recall.
17 MR. BERCHOU: Let's mark this.
18 (Whereupon, Exhibit 3, YouTube
19 printout, marked for
20 identification.)
21 BY MR. BERCHOU:
22 Q. I'll show you what has been
23 marked as Exhibit 3, which is a printout
24 from YouTube. And kind of on the center
25 of the page there, there's a reference
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 30 1 there to Pro Era, New Era. Do you know
2 what that refers to?
3 A. No.
4 Q. And you, under the name Joey
5 Bada$$, are referenced there under number
6 two.
7 That doesn't refresh your
8 recollection as to what New Era, Pro
9 Era -- I'm sorry, Pro Era and New Era --
10 A. What we're looking at now is a
11 playlist that a random person created of
12 all Pro Era videos, and they named it what
13 you see there.
14 Q. Did you put out any materials
15 that were referred to as New Era?
16 A. No, never. Not at all.
17 (Whereupon, Exhibit 4, pictures,
18 marked for identification.)
19 BY MR. BERCHOU:
20 Q. I'll show you what's been marked
21 as Exhibit 4. If you could take a look at
22 that. And there are a couple of images
23 there that refer to Pro Era and New Era 3,
24 4 and 5. Do you know what these are?
25 A. These are all fan-created
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 31 1 projects that we did not put together.
2 These are fans that tried to compile a
3 bunch of our music, and I guess they named
4 it this. But this isn't us naming it. If
5 that doesn't make sense...
6 Q. And were you familiar with
7 these --
8 A. No, I wasn't.
9 Q. -- before you came here today?
10 A. Never seen this in my life.
11 Q. How did you know that some of
12 your fans --
13 A. Because I've seen --
14 Q. I'm sorry. Just let me finish.
15 Then how do you know that some
16 of your fans put together a list of your
17 music?
18 A. Because I see it all the time.
19 Q. By looking at this document on
20 the first page, how did you know that this
21 was a list of -- or some collection of
22 your music?
23 A. By the name that it says; "New
24 Era Three." And I look to the next page,
25 and also with the parental advisory
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 32 1 sticker here, it tells me it is a
2 compilation of music.
3 Q. But you've never seen that
4 before today?
5 A. No.
6 Q. Never heard about it?
7 A. No.
8 Q. You started talking about some
9 dealings that you had with New Era, I
10 believe relevant to the South By Southwest
11 show.
12 Can you describe for me what you
13 know about those dealings and your
14 involvement?
15 A. Last year I was booked for a
16 show that was presented and hosted by New
17 Era. And, yeah, that's pretty much all I
18 know.
19 I know that I played that show.
20 And, yeah, and New Era covered the show,
21 and they also free shooted it on their
22 social media site.
23 Q. When you say it was hosted by
24 New Era, do you mean that New Era was one
25 of the sponsors?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 33 1 A. Yes. No, they were the sponsor.
2 They presented the event.
3 Q. There were no other sponsors?
4 A. Not that I know of.
5 Q. So aside from your understanding
6 that they hosted the show, did you have
7 any involvement in discussing any kind of
8 business relationship with New Era?
9 A. No. Except for just being
10 booked at their show, I guess. But they
11 didn't go through me directly. They went
12 through management.
13 Q. Okay. And who was involved in
14 dealings or the discussions relating to a
15 business relationship with New Era?
16 A. Domingo and my management.
17 Q. And that was who?
18 A. Johnny Shi, Druha, Noah.
19 Q. And what happened?
20 A. I'm not sure exactly. I'm just
21 the artist.
22 Q. So you have no knowledge of what
23 happened at that time?
24 A. No. Just the fact that we were
25 booked for a New Era show, and we --
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 34 1 suddenly around that time or during that
2 time the lawsuit popped up.
3 Q. I'm sorry. What did you say?
4 A. This situation had popped up,
5 like, yeah.
6 Q. But you weren't involved
7 directly?
8 A. No.
9 MR. BERCHOU: All right. Let's
10 mark this.
11 (Whereupon, Exhibit 5, email
12 chain, marked for
13 identification.)
14 BY MR. BERCHOU:
15 Q. I'll show you what was marked as
16 Exhibit 5, which are some documents that
17 were produced in response to our document
18 requests number 24.
19 A couple of email addresses
20 there. Maybe you can help me. One is
21 [email protected]. Do you know what that
22 is?
23 A. Come again?
24 Q. Look at the top of the first
25 page, the CC. Do you know who that is?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 35 1 A. Dru had 3D Distro. That is
2 Druha Friedman.
3 Q. That is Dru Friedman?
4 A. Yeah.
5 Q. And Johnny Shipes, is that John
6 Shapiro?
7 A. Shapiro, that's correct.
8 Q. And how about Edward Niles? Do
9 you know who that is?
10 A. Yeah. He works alongside myself
11 and the music label, the music group.
12 Q. Who is he employed by?
13 A. He is currently, like, just
14 freelancing, if you will, like, if you
15 know.
16 Q. So what's his role?
17 A. That's, like, marketing,
18 marketing man, director.
19 Q. But he's an independent
20 contractor?
21 A. Yes.
22 Q. Was she paid by Pro Era, LLC?
23 A. Not at this moment.
24 Q. Has he ever been?
25 A. Yes.
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 36 1 Q. In what capacity?
2 A. Marketing.
3 Q. As an independent contractor?
4 A. Correct.
5 Q. If you look at the tabbed
6 page there. Under the heading "New Era
7 deal," it says, "I was talking to my
8 client about the trademark issue, and it
9 seemed that Evita was able to postpone her
10 trademark filing until we get everything
11 sorted."
12 Do you know what that refers to?
13 A. No.
14 Q. Okay.
15 A. But what I do know is that New
16 Era had reached out to do a collaboration
17 project with us around this time.
18 Q. Okay. But you don't know
19 anything more about the trademark issue?
20 A. No. All I knew was that they
21 wanted to do a collaboration. And then
22 shortly after, this situation followed.
23 And I guess this is the birth of this.
24 Q. What do you mean when you say
25 that?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 37 1 A. Meaning, well, this is -- I
2 guess this is the time that this whole
3 situation happened as far as us needing to
4 be here today for this deposition.
5 Q. It says a result of what?
6 A. As a result of, I guess, New Era
7 wanted to do a collaboration project,
8 yeah.
9 Q. And what happened? Why didn't
10 the collaboration project come about?
11 A. I'm not sure.
12 Q. Who would be best to ask that
13 question?
14 A. These guys on the name.
15 (Whereupon, Exhibit 6, pictures
16 of hats, marked for
17 identification.)
18 BY MR. BERCHOU:
19 Q. I'll show you what's been marked
20 as Exhibit 6, which are printouts from the
21 Pro Era website. Are those caps currently
22 being sold on the Pro Era site?
23 A. Currently sold out.
24 Q. Both of them are sold out?
25 THE WITNESS: At the moment,
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 38 1 right?
2 BY MR. BERCHOU:
3 Q. I think one --
4 A. Just the red one.
5 Q. One -- for the record, one says
6 sold out, and one appears to be available
7 for sale?
8 A. Right. I'm not sure exactly
9 which one is still available.
10 Q. Okay. And I haven't seen one of
11 the caps yet. Can you describe for me
12 how -- well, can you describe, first, who
13 makes the caps? Do you know?
14 A. As far as --
15 Q. Who makes them?
16 A. Production?
17 Q. Yeah.
18 A. Different vendors. It depends
19 on who we go to at the time. Either Blue
20 Frog or 12 Ounce.
21 Q. And when the product is
22 delivered, does it come with any tags or
23 labels that aren't shown here on the
24 drawing or on the image in front of you?
25 A. We have custom Pro Era woven
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 39 1 labels that we place inside of the hat.
2 Q. Inside?
3 A. Uh-huh.
4 Q. And they say what?
5 A. Pro Era. And they link to the
6 website.
7 Q. And any tags?
8 A. No.
9 (Whereupon, Exhibit 7, deal
10 memo, marked for
11 identification.)
12 BY MR. BERCHOU:
13 Q. I'm going to show you what was
14 marked as Exhibit 7, which was a -- it's
15 titled "Pro Era and New Ear Deal Memo."
16 Have you ever seen that document
17 before?
18 A. Not that I recall.
19 Q. Do you have any idea who was
20 involved in negotiating that document or
21 who prepared it?
22 A. Not exactly, but I'm pretty sure
23 it was my team, yeah.
24 Q. Your management team?
25 A. My management team, yeah. My
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 40 1 lawyer.
2 Q. There is a reference in some of
3 the materials that you provided to a Pro
4 Era collection being released by Echo.
5 A. Come again?
6 Q. I'll show you the document.
7 (Whereupon, Exhibit 8, documents
8 produced in response to document
9 requests, marked for
10 identification.)
11 BY MR. BERCHOU:
12 Q. I'll show you what's been marked
13 as Exhibit 8, which is a group of
14 documents that were produced by Pro Era in
15 this matter in response to document
16 request number one, among others.
17 If you look at the tab page,
18 that's what I was referring to --
19 A. There's two tab pages, but the
20 first one --
21 Q. The first one, right. There's a
22 sentence that says, "They're definitely
23 taking my visions and running with it,
24 says Joey. He also revealed that Echo
25 will be releasing a Pro Era collection
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 41 1 inspired by his Brooklyn hip-hop
2 collective."
3 Do you see that?
4 A. Yeah.
5 Q. And did that actually come
6 about?
7 A. No.
8 Q. And there are no plans for it?
9 A. No.
10 Q. And the second tab -- and,
11 again, these were documents that were
12 produced to us and has three images of
13 caps. Are those caps no longer being
14 sold?
15 A. No. These caps are no longer
16 being sold.
17 Q. And no plans to sell those caps
18 again?
19 A. No. This was a collaboration
20 project with the Decades Hat Co.
21 Q. Just to clarify, you mentioned
22 that some of your products are promoted
23 through social media. Can you describe
24 specifically what social media sites --
25 A. Twitter and Instagram and
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 42 1 Facebook.
2 Q. Well, that was a lot quicker
3 than I thought I was going to be. I have
4 nothing further.
5 (Discussion held off the
6 record.)
7 EXAMINATION
8 BY MS. KIEGLER:
9 Q. Earlier opposing counsel asked
10 you to describe the business of Pro Era,
11 LLC. You said there's management and
12 recording.
13 Is there anything else?
14 A. Yes. There's also apparel, if I
15 forgot to mention that.
16 Q. Opposing counsel -- you and
17 opposing counsel discussed the original
18 New Era endorsement that came. From that
19 potential deal, was there anything that
20 you actually did with New Era?
21 A. Yes. We were -- well, we were
22 really supposed to do a collaboration
23 piece, which was a hat. There were
24 also -- there are actually samples made
25 for that project, but it never went any
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 43 1 further than just the samples.
2 Also, they -- I know that New
3 Era hats also sponsored a trip that we had
4 took to Denver, which was actually in one
5 of the exhibits that opposing counsel had
6 brought up via Domingo.
7 New Era had a -- basically
8 sponsored myself and my team to fly out to
9 Denver in collaboration with Zumiez to do
10 a show sponsored by New Era wearing New
11 Era clothing.
12 Q. And do you recall whether that
13 sponsored show, was it around, if you can
14 recall, the time that your team was
15 negotiating the endorsement deal?
16 A. With New Era?
17 Q. Yeah, for the Denver trip that
18 you are talking about, do you know, was
19 that around the time that the endorsement
20 deal was presented?
21 A. You mean the collaboration --
22 Q. Yes.
23 A. -- whole thing? Yes, it was.
24 That was when we were, like, basically
25 talking about doing some business
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 44 1 ventures.
2 Q. Okay. Let's see. And with Pro
3 Era being described as a hip-hop
4 collective, why would you want to do
5 apparel? Why would you want to have
6 apparel?
7 A. Because, you know, in, like, the
8 history of hip-hop, I'm inspired by a lot
9 of my forefathers, if you will. You know,
10 like Jay-Z, Puff Daddy.
11 These guys were all hip-hop
12 moguls who turned their brands into also
13 apparel companies. And I have the same
14 interest. Similar interest.
15 Q. And with regard to the Pro Era
16 apparel, would you say that you discussed
17 your plans with your management, with your
18 team about what you want to -- what you
19 want to do with it? Would you say those
20 discussions were daily?
21 A. Come again?
22 Q. As far as you New Era apparel,
23 do you have discussions with your team
24 about what your plans are for those?
25 A. As far as my Pro Era apparel?
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 45 1 Q. Uh-huh.
2 A. Yes. We have discussions with
3 them as to what our plans are weekly, on a
4 weekly basis.
5 Q. Okay. That's it. That's all I
6 have for you.
7 EXAMINATION
8 BY MR. BERCHOU:
9 Q. Just two very quick follow-up
10 questions.
11 You mentioned some samples that
12 New Era made. Do you still have those
13 samples?
14 A. No.
15 Q. Do you know if anybody on your
16 management team has them?
17 A. No. They're long gone. I
18 haven't seen them in years.
19 Q. And you mentioned a trip to
20 Denver for a show. Can you describe the
21 show or who was performing?
22 A. So it was -- sorry. I cut you
23 off. It was the Zumiez 100th -- it was
24 something like that. It was a Zumiez
25 event sponsored by New Era.
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 46 1 And it was basically
2 celebrating, I think, Zumiez 3,000
3 employees. It was something along those
4 lines; celebrating, like, just this number
5 that Zumiez had hit, I guess, on employees
6 or stores, if I'm mistaken.
7 And New Era had sponsored the
8 trip. And they also, basically, provided
9 us with clothing to wear to the event.
10 Q. With New Era branded?
11 A. New Era branded clothes, yeah.
12 Q. Okay. I have nothing further.
13 Thank you.
14 (Whereupon, the proceedings
15 conclude at 10:42 a.m.)
16
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25
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 47 1
2 STATE OF ______)
3 ) :ss
4 COUNTY OF ______)
5
6
7 I, JO-VAUGHN VIRGINIE, the witness
8 herein, having read the foregoing
9 testimony of the pages of this deposition,
10 do hereby certify it to be a true and
11 correct transcript, subject to the
12 corrections, if any, shown on the attached
13 page.
14
15 ______
16 JO-VAUGHN VIRGINIE
17
18
19
20 Sworn and subscribed to before me,
21 this ______day of ______, 2016.
22
23 ______
24 Notary Public
25
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 48 1 REPORTER CERTIFICATE
2 I, the undersigned, do hereby
3 certify:
4 That JO-VAUGHN VIRGINIE was by me duly
5 sworn in the within-entitled cause; that
6 said deposition was taken at the time and
7 place herein named; and that the
8 deposition is a true record of the
9 witness's testimony as reported by me, a
10 disinterested person, and was thereafter
11 transcribed.
12 I further certify that I am not
13 interested in the outcome of the said
14 action, nor connected with, nor related to
15 any of the parties in said action, nor to
16 their respective counsel.
17 IN WITNESS WHEREOF, I have hereunto
18 set my hand this April 4, 2016.
19 Signature:
20 ___ Requested ___ Waived _X_ Not Requested
21 Dated: April 4, 2016
22 ______JESSICA R. WAACK 23 Registered Diplomate Reporter Certified Realtime Reporter 24 California Certified Realtime Reporter Notary Public, State of New York 25 New Jersey Licensed Reporter
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 49 1 INSTRUCTIONS TO WITNESS
2
3 Please read your deposition over carefully
4 and make any necessary corrections. You should state
5 the reason in the appropriate space on the errata
6 sheet for any corrections that are made.
7 After doing so, please sign the errata sheet
8 and date it.
9 You are signing same subject to the changes
10 you have noted on the errata sheet, which will be
11 attached to your deposition.
12 It is imperative that you return the original
13 errata sheet to the deposing attorney within thirty
14 (30) days of receipt of the deposition transcript by
15 you. If you fail to do so, the deposition transcript
16 may be deemed to be accurate and may be used in court.
17
18
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20
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25
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 50 1 E R R A T A
2
3
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5 I wish to make the following changes,
6 for the following reasons:
7
8 PAGE LINE
9 ______CHANGE:______
10 REASON:______
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16 REASON:______
17 ______CHANGE: ______
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20 REASON:______
21
22 ______
23 WITNESS' SIGNATURE DATE
24
25
DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 51
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 55
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 56
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 57
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DAVID FELDMAN WORLDWIDE, INC. 450 Seventh Avenue - Ste 500, New York, NY 10123 1.800.642.1099 1
1 2 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND 3 APPEAL BOARD ------X 4 NEW ERA CAP CO., INC., 5 OPPOSER, 6 -against- Opposition No.: 91/216,455 7 Application Serial No: 8 85/711,680 9 PRO ERA, LLC, 10 APPLICANT. ------X 11 12 DATE: April 12, 2017 13 TIME: 10:14 A.M. 14 15 16 DEPOSITION of the Applicant, 17 PRO ERA, LLC, by a Witness, KIMBAH 18 VIRGINIE, taken by the Respective Parties, 19 pursuant to a Court Order, held at the 20 offices of Diamond Reporting, Inc., 150 21 Broadway, New York, New York 10038, before 22 Lauren Macaluso, a Notary Public of the 23 State of New York. 24 25
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1 2 A P P E A R A N C E S: 3 4 HARTER, SECREST & EMERY, LLP Attorneys for the Opposer 5 NEW ERA CAP CO., INC. 50 Fountain Plaza-Suite 1000 6 Buffalo, New York 14202 BY: KIMBERLY I. SHIMOMURA, ESQ. 7 File #: 91216455 (VIA VIDEOCONFERENCE) 8 9 LAW OFFICES OF EVITA G. KAIGLER Attorneys for the Applicant 10 PRO ERA, LLC 1440 Dutch Valley Place, NE-Suite 160 11 Atlanta, Georgia 30324 BY: EVITA G. KAIGLER, ESQ. 12 File #: NONE (VIA VIDEOCONFERENCE) 13 14 *** 15 16 17 18 19 20 21 22 23 24 25
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1 K. VIRGINIE 2 K I M B A H V I R G I N I E, called as a 3 witness, having been first duly sworn by a 4 Notary Public of the State of New York, was 5 examined and testified as follows: 6 EXAMINATION BY 7 MS. SHIMOMURA: 8 Q. Please state your name for the 9 record. 10 A. Kimbah Virginie. 11 Q. What is your address? 12 A. 51 Hart Street, Apartment 1, 13 Brooklyn, New York 11206. 14 Q. Good morning, Ms. Virginie. My 15 name is Kim Shimomura. I'm an attorney 16 with the firm Harter, Secrest & Emery. I'm 17 here today representing opposer New Era Cap 18 Company, Inc. We're here to take your 19 deposition. Which means I'm going to be 20 asking you a bunch of questions. If you 21 don't hear me or don't understand my 22 question, please let me know and we can 23 either repeat it or I'll rephrase it. If 24 you need to take a break at any point, just 25 let us know and we'll be happy to
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1 K. VIRGINIE 2 accommodate that. 3 We have a court reporter with 4 us today. Her name is Lauren. Lauren is 5 taking down everything that we say. Which 6 means that it would be difficult for Lauren 7 to do her job if we speak at the same time. 8 So I'm going to do my best to let you 9 finish your answers before I ask any 10 questions. And I'm going to ask that you 11 do your best to let me finish my question 12 before you start your answer. 13 Does that sound good? 14 A. That's fine. 15 Q. You guys can hear us okay? 16 A. Yes. 17 Q. Ms. Virginie, is it your 18 understanding you're appearing on behalf of 19 an entity named -- 20 A. You just cut out. But I'm 21 assuming you said Pro Era. 22 And yes. 23 Q. Yes. 24 I said is it your understanding 25 that you're appearing today on behalf of
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1 K. VIRGINIE 2 Pro Era, LLC? 3 A. Yes. 4 Q. Do you know what topics you're 5 here to testify about today? 6 A. No. 7 Q. Did you do anything to prepare 8 for your testimony today? 9 A. No. 10 Q. So you didn't review any 11 documents in the last few days or anything? 12 A. The only documents that was 13 reviewed, my attorney asked me to produce 14 anything from the start of our business to 15 today. As far as what -- what products we 16 sell that actually had the Pro Era name on 17 it. And I submitted that information. 18 Q. Have you ever given testimony 19 before? 20 A. Not fully, no. I sat in on a 21 deposition, but I wasn't the one being 22 deposed. 23 Q. Are you currently employed, 24 Ms. Virginie? 25 A. Yes.
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1 K. VIRGINIE 2 Q. Who is your employer? 3 A. Well, I'm not -- technically 4 yes and no. I work for Pro Era, LLC, but 5 it's a difficult type of situation. It's 6 my son's company. I help him run it, but I 7 don't get paid. 8 Q. Do you hold any official 9 position or title with Pro Era, LLC? 10 A. CFO. 11 Q. When did you begin working with 12 Pro Era, LLC? 13 A. Well, I believe Pro Era came 14 into existence sometime officially in July 15 of 2012, if I'm not mistaken. But Pro Era, 16 the entity, as it is now and when it began, 17 it started with my son and his friend 18 sometime in 2010, 2011. We made it 19 official in 2012 by registering it. I 20 helped my son register it at the time 21 because he was 17 years old. 22 Q. When you say "registered," are 23 you referring to the formation of the 24 limited liability company? 25 A. Yes.
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1 K. VIRGINIE 2 Q. And from its inception, it 3 sounds like you had a role with the LLC? 4 A. Well, yes. Because my son was 5 under age and I had to put through certain 6 things on his behalf. So I had the role of 7 mom for the most part. 8 Q. What services do you provide to 9 Pro Era, LLC? 10 A. I just overlook everything 11 having to do with my son, as far as his 12 music. Pro Era is a music-based company 13 formulated around my son and his band. And 14 I handle merchandise for them, as well. 15 Q. You mentioned that the 16 merchandise. 17 Do you handle the sales of the 18 merchandise? 19 A. Well, yes, I do. I -- the 20 website is run by someone else. It's run 21 by the label, etc. Everything is basically 22 online and I handle fulfillment for the 23 most part. 24 Q. Can you hear me? 25 A. Yes.
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1 K. VIRGINIE 2 Q. Did you say something after "I 3 handle the fulfillment?" 4 A. No, I did not. I said "for the 5 most part." 6 Q. Are there any employees of Pro 7 Era, LLC other than you and your son? 8 A. We have an employee, but not 9 having anything to do with the merchandise. 10 My son has a general manager that handles 11 touring. Anything on the music end. He 12 has absolutely nothing at all to do with 13 merchandise. 14 Q. So I want to ask you what types 15 of items has Pro Era, LLC sold under the 16 Pro Era trademark? 17 A. T-shirts, hats, sweatshirts, 18 sweatpants, headbands, socks, and iPhone 19 cases. 20 Q. Has Pro Era, LLC sold shorts 21 under the trademark Pro Era? 22 A. Shorts. 23 Q. For the t-shirts, do you know 24 when Pro Era, LLC made its first sale of a 25 t-shirt under the Pro Era trademark?
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1 K. VIRGINIE 2 A. I cannot recall. Initially, 3 the first shirts that were released via Pro 4 Era never had the Pro Era trademark on it. 5 It mostly had pictures of the band, etc. 6 But I can't recall the exact date that we 7 actually put Pro Era into play. I don't 8 remember. I can probably find out. But I 9 don't know off the top of my head. 10 Q. Do you know generally? So 11 could you narrow it down for a specific 12 year that Pro Era, LLC first sold a t-shirt 13 for the trademark Pro Era? 14 A. If I had to guess, I would say 15 maybe 2013, 2014. We started sales at the 16 end of 2012. And 2013 were the first 17 shirts we sold. But if I had to guess for 18 the Pro Era, it would be maybe the end of 19 '13, top of '14, as far as the Pro Era logo 20 itself. 21 Q. Do you know the method through 22 which Pro Era, LLC first sold t-shirts that 23 bear the mark Pro Era? For example, I'm 24 referencing either was it an online sale, 25 in-person sale? What type of sale was
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1 K. VIRGINIE 2 that? 3 A. I would believe that it was 4 probably first on tour, maybe. Don't quote 5 me. I'm not sure. But I'm assuming it was 6 probably first on tour. The first real 7 launch of anything Pro Era started off with 8 touring. And after that, then online. So 9 I would -- I would say maybe on tour. 10 Q. Do you know when Pro Era, LLC 11 first started selling Pro Era branded 12 clothing items online? 13 A. The store started in 2012. The 14 actual brand, I'm not sure. I would have 15 to say again the end of 2013, top of '14. 16 But I'm not sure the exact date that we 17 actually used the logo. We had shirts. 18 And again, it was based around the band. 19 It was actually based around my son's 20 band -- my son's entertainment name 21 initially. And then after that I'm not too 22 sure when we started actually using Pro 23 Era. The name of the company was always 24 Pro Era. But the actual clothing stating 25 Pro Era on it, I'm not sure. Because
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1 K. VIRGINIE 2 initially, again, it started -- most of the 3 clothing said Joey Badass or something in 4 reference to it. 5 Q. Do you know when Pro Era, LLC 6 first sold hats bearing the trademark Pro 7 Era? 8 A. I think the first hats that we 9 sold was a-- it was a combination with Pro 10 Era and I believe a company called the 11 Decades. I don't remember what the hat 12 looked like. But I'm sure it probably said 13 something pertaining to Pro Era. But that 14 was the first time we did hats. And again, 15 it was, you know, in correlation with 16 someone else. 17 Q. Do you recall what the brand 18 label said inside that hat? Do you know if 19 it said Decades or if it said Pro Era or 20 something else? 21 A. I'm unsure. But if I was to 22 guess, it would have probably said Decades. 23 Because it originated from the company 24 Decades. And they basically gave us a few 25 to put on our site. We weren't the ones
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1 K. VIRGINIE 2 that developed those hats. We weren't the 3 one that was responsible for manufacturing 4 or anything like that. We weren't even the 5 ones that designed them, as far as I could 6 remember. 7 Q. Do you know when Pro Era, LLC 8 first sold sweatshirts under the brand Pro 9 Era? 10 A. I'm not sure. Again, maybe end 11 of '13, '14. That actually said Pro Era? 12 Maybe even more like '14. 13 Q. I'd like to ask the same 14 question for sweatpants. 15 Do you remember when Pro Era, 16 LLC first sold sweatpants bearing the mark 17 Pro Era? 18 A. That was this year. 19 Q. 2017? 20 A. 2017. I would say February. 21 The end of February. 22 Q. What about headbands? 23 A. We've done headbands twice, two 24 separate runs. We did headbands last year, 25 which was '16. And maybe we also did them
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1 K. VIRGINIE 2 sometime in '15. 3 Q. And these headbands had the 4 brand Pro Era on them? 5 A. Yes. 6 Q. When was the first time Pro 7 Era, LLC sold socks under the brand Pro 8 Era? 9 A. Socks? 2015. I believe 2015. 10 Q. And when did Pro Era, LLC first 11 sell shorts under the brand Pro Era? 12 A. We did two separate runs of 13 shorts, as well. We did 2016 -- actually, 14 it might have even been '15. Because we 15 had them for a while. Maybe '14 and '15. 16 Q. For any of the products, the 17 clothing items that we just talked about, 18 do any of them have on the brand label 19 inside the mark Pro Era? 20 A. Sometimes they do. Sometimes 21 they don't. 22 Q. Do you recall the first time 23 you sold clothing items with the mark Pro 24 Era branded on the inside label for the 25 clothing items?
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1 K. VIRGINIE 2 A. I'm not sure when we first 3 started doing clothing. It used to be 4 printed and manufactured by Ecko. So they 5 mostly said Ecko inside. Pro Era maybe 6 sometime in 2015. Or it could have even 7 been 2014. I'm not sure. 8 Q. You just said that you believed 9 that Pro Era, LLC started putting the Pro 10 Era brand inside clothing items potentially 11 in 2014 or 2015. Is that true for all the 12 clothing items that we've discussed, or 13 just certain ones? 14 A. Well, all of the ones that we 15 discussed came about '14, '15, as far as 16 actually having the logo on it. So this is 17 why I'm saying initially the first -- the 18 first items that we had were Ecko. But Pro 19 Era, I would say maybe sometime in '14 or 20 '15, I can't recall the exact dates. And 21 even sometimes we still don't necessarily 22 have Pro Era on the inside. 23 Q. Is there some factor that 24 occurs that would lead you to put the Pro 25 Era brand inside the clothing items or not
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1 K. VIRGINIE 2 to? Does it depend on something? 3 A. Well, I mean, sometimes it 4 depends on where we're getting the shirt 5 from. Sometimes it depends on how soon we 6 need the items. Because, again, we don't 7 necessarily manufacture our own items. We 8 don't have a factory. So depending on what 9 it is and whether or not we do a 10 collaboration with another company, 11 sometimes that plays a factor, as well. So 12 it can be a number of things. But, you 13 know, if we have time, most times we aim to 14 try and put it on the inside label. 15 Q. You mentioned that the earlier 16 brand of t-shirts was Ecko. 17 Is that E-C-H-O? 18 A. I'm not sure. E-C-K-O. Mark 19 Ecko. 20 Q. We talked a little bit about 21 the manufacturers for the Pro Era branded 22 clothing items. It sounds like you have a 23 number of different manufacturers; is that 24 right? 25 A. Well, what we do is we have a
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1 K. VIRGINIE 2 consultant. And we don't -- I don't -- we 3 don't ever directly deal directly with any 4 manufacturer. We have a consultant that we 5 speak with. And I would assume that he has 6 a number of different manufacturers that he 7 deals with. 8 Q. Who is this consultant? 9 A. His name is Jared Liner. 10 Q. Could you spell liner? 11 A. I believe it's L-I-N-E-R. 12 Q. Does Mr. Liner work for a 13 company or is he independent? 14 A. He's independent. 15 Q. When the clothing items bear 16 the Pro Era trademark after they're 17 manufactured, are they kept in a location? 18 A. I don't understand what you 19 mean. Can you -- 20 Q. I'm wondering where the 21 inventory of Pro Era branded merchandise 22 sits until it's purchased. 23 A. Sometimes it sits in my 24 basement. And sometimes it sits in a 25 storage facility if we don't have space.
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1 K. VIRGINIE 2 Q. Currently what are the 3 different channels through which a consumer 4 can purchase Pro Era branded clothing 5 items? 6 A. Either online or at a concert. 7 Q. Has Pro Era, LLC ever sold Pro 8 Era branded clothing items in any other 9 methods other than online or at concerts? 10 A. Occasionally there's a pop-up 11 shop. But most of the time if we do that, 12 it's in collaboration with another brand. 13 So that specific item is sold at that time, 14 but not full inventory. So just like we 15 mentioned Decades, we've never done a 16 pop-up shop with Decades. But Billionaire 17 Boys Club, for instance, we've done a 18 collaboration with them. And that specific 19 shirt -- well, scratch that. Because that 20 wasn't a Pro Era -- it wasn't branded Pro 21 Era. But that specific shirt, for 22 instance, was sold at their retail 23 locations. And occasionally we have 24 something like that with Pro Era. Oh. I'm 25 sorry. One more thing. We did -- I just
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1 K. VIRGINIE 2 recalled. We did at one time have -- 3 again, it wasn't us that manufactured. But 4 we did have, I guess, our shirts selling in 5 Zumiez locations. 6 Q. That's a brick and mortar 7 location, not online? 8 A. I'm not sure. I know they 9 had -- they wanted to introduce it to 10 certain markets, and it wasn't in all of 11 their stores. But I believe -- I never 12 personally saw it physically in a store, 13 but I believe they had it in certain actual 14 retail locations. 15 Q. Can you tell me the different 16 websites online through which Pro Era 17 branded clothing items have been sold? 18 A. It should only be shop dot -- 19 the ProEra.com. If it's being sold 20 otherwise, then it's not us. 21 Q. We've mentioned several times 22 Pro Era branded merchandise. 23 Does that mean to you that the 24 clothing items has the words Pro Era on the 25 merchandise in some fashion? So for
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1 K. VIRGINIE 2 example, on the front of a t-shirt or on a 3 hat? 4 A. That is my understanding of 5 what you guys were asking for. 6 Q. I'm just asking as we use that 7 term today, "Pro Era branded merchandise," 8 is that how you're using the term? 9 A. That's how I'm using the term 10 today. But Pro Era merchandise is, to me, 11 anything having to do with the collective 12 Pro Era. 13 Q. I think that's a good 14 distinction. So it sounds to me like Pro 15 Era, LLC sells a lot of clothing items and 16 that items Pro Era, LLC sells will be 17 branded Pro Era; is that right? 18 A. Can you repeat that question? 19 You cut out a bit. 20 Q. So my understanding is that Pro 21 Era, LLC sells a wide variety of clothing 22 items, but only a smaller subset of those 23 clothing items actually have Pro Era on 24 them; is that right? 25 A. Well, yeah. Because again, Pro
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1 K. VIRGINIE 2 Era is based around a collective. And the 3 collective comprises of different 4 musicians. So sometimes a shirt, for 5 instance, can say "Joey Badass." Sometimes 6 a shirt can say "Kirk Night" or "Nick 7 Caution." Any one of our artists. And 8 sometimes it could say the artist's name, 9 and maybe have Pro Era on the inside. 10 Because the name of the group, besides the 11 individuals, they're Pro Era. Progressive 12 Era is the name of the collective. And 13 they use Pro Era for short. So they are 14 all Pro Era, as far as the music and 15 everything goes. And the clothing is based 16 around them. So to me, Pro Era is anything 17 having to do with the collective Pro Era. 18 So it could be clothing. It could be, you 19 know, music. It can be whatever Pro Era 20 has going on at the time. The Pro Era, the 21 collective. It's one thing. It's not like 22 a separate entity. 23 Q. You mean the Pro Era collective 24 is a separate -- 25 A. No. I said it's one thing.
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1 K. VIRGINIE 2 It's not -- Pro Era merchandise, for 3 instance, is not -- Pro Era merchandise 4 would never be if it's not Pro Era the 5 music group. Everything having to do with 6 Pro Era merchandise is basically based 7 around the music, the collective. It's 8 music first. They happen to start band 9 t-shirts. So whatever, based on the music. 10 And for the most part that's what it's 11 about. It's not a separate company or a 12 clothing company, per se. We sell clothes, 13 but we're not a clothing company. We're a 14 music collective. 15 Q. You've referenced a couple of 16 collaboration clothing items today. I 17 believe we heard Decades. 18 A. Right. 19 Q. Are there other companies with 20 which Pro Era, LLC has collaborated on 21 clothing items other than Decades? That 22 was the only one I remember. 23 A. We've done Ebbets Field. We've 24 done Crooks & Castles, Spirit Tees. And 25 that's what I can remember off the top of
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1 K. VIRGINIE 2 my head. We may have done others. But I 3 believe that's the only ones. I can't 4 think of any others. Oh. Sorry. We did 5 one with a designer called Kid Super. But 6 I don't think that one either had Pro Era 7 on it. It had, you know, the artists, for 8 most part. But it didn't specifically say 9 Pro Era. 10 Q. When Pro Era first started 11 selling clothing items that were branded 12 Pro Era, how did Pro Era, LLC keep records 13 of those sales? 14 A. We had a business manager. 15 Q. Did that business manager use 16 any software to keep track of those sales? 17 A. Oh. We used Shopify. We used 18 Shopify. They can buy via Shopify 19 directly. And we also accept PayPal. 20 Q. So Pro Era was using Shopify 21 from the beginning of when it first started 22 selling branded merchandise? 23 A. Yes. I would believe so. The 24 only other time that it might be different 25 is if it was on tour. The original items
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1 K. VIRGINIE 2 started off with touring for the most part. 3 Actual branding of Pro Era, I would say, 4 even with that, started on tour. But 5 anything sold Pro Era online, we've always 6 gone through Shopify. 7 Q. So it sounds like the Pro Era 8 branded clothing items that were sold on 9 tour early in that occurrence may not have 10 been recorded in the Shopify software; is 11 that right? 12 A. Only if it's touring. But it 13 was never sold -- Pro Era merchandise -- 14 there's only two platforms. Either online 15 or at a show. So unless it was at a show, 16 it was at Shopify. And again, if it's 17 being sold otherwise, it's not us. But 18 from inception, always Shopify. We've 19 never used anything else. 20 Q. I'm just trying to understand 21 whether there was any method of keeping 22 track of merchandise sales during the early 23 touring. 24 A. We had a tour manager. And 25 when early touring for the most part, that
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1 K. VIRGINIE 2 would have been, I guess, through the 3 label. Because everything was done through 4 the label. Even the Shopify, everything 5 was set up via the label. It's the same 6 Shopify, but they used to handle all the 7 fulfillment. Everything that I do now, 8 they did it. But the records are still the 9 same thing. All I did was basically start 10 handling the same account. So everything 11 that's there is what was there from the 12 beginning. 13 Q. You just referenced a label. 14 What's the name of that label? 15 A. Cinematic Music Group. 16 MS. SHIMOMURA: Can you mark 17 this, please. 18 (Whereupon, the aforementioned 19 chart was marked as Exhibit 10 for 20 identification as of this date by the 21 Reporter.) 22 Q. Ms. Virginie, we've handed you 23 an exhibit marked deposition Exhibit number 24 10. Which is a chart. And the top lines 25 are Pro Era, LLC -- Shopify.com. The
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1 K. VIRGINIE 2 fourth line at the top says Pro Era branded 3 merchandise. The next line says period 4 01/01/2012 through 02/28/2017. 5 Have you seen this document 6 before, Ms. Virginie? 7 A. Yes. 8 Q. What is this document? 9 A. This is a document that my 10 attorney asked me to provide, as far as Pro 11 Era merchandise is concerned. You wanted 12 to see what Pro Era has done from 13 inception, as far as the brand goes. I'd 14 just like to say one thing, though, as far 15 as the Pro Era, LLC. On this particular 16 document, I don't know whether or not it 17 makes any difference. But again, Shopify 18 was set up by the label. And up until 19 recently, I can't recall the exact date, 20 but it was either the top of this year or 21 the end of last year, it was Cinematic 22 Music Group. And I just took ownership, 23 basically, of the actual page and changed 24 it to Pro Era, LLC. Prior to that, it said 25 Cinematic Music Group.
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1 K. VIRGINIE 2 Q. This document doesn't reflect 3 all of the clothing items that Pro Era, LLC 4 sells; is that correct? 5 A. It reflects all of the clothing 6 items, per se, that it sells. But it 7 doesn't list all of the individual clothing 8 that it sells. So it represents all the 9 types of clothing, but not every single 10 item that we sell. 11 Q. Does it reflect all of the Pro 12 Era branded clothing items sold by Pro Era, 13 LLC? 14 A. Yes. As far as I know. I went 15 through it. If I missed anything, I don't 16 see it. For the most part, yes. 17 Q. I'm just trying to make sure 18 that I understand that there may be 19 clothing items that Pro Era, LLC sells that 20 aren't branded Pro Era. So those have been 21 removed from this document? 22 A. Yes. 23 Q. So this document should reflect 24 clothing items sold by Pro Era, LLC that 25 have the Pro Era brand on them?
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1 K. VIRGINIE 2 A. Yes. If it said Pro Era in any 3 way, if it has a label that said Pro Era, I 4 believe it's on here. 5 Q. So some of the items may have 6 the Pro Era brand on a label inside the 7 clothing item, and some may not? 8 Is that fair to say? 9 A. Right. For instance, the 10 Decades, I don't remember what the shirt, 11 what that hat looked like. I wasn't 12 handling the shop at that particular point 13 in time. But I assumed, because it was a 14 collaboration between Pro Era and The 15 Decades, that somewhere on there it said 16 Pro Era. 17 Q. -- specifically look like, the 18 Decades collaboration products? 19 A. I don't -- I wasn't handling 20 the shop at that time. I don't -- I 21 haven't seen this item live. 22 Q. Do you recall what the Stussy 23 collaboration t-shirt looked like? 24 A. I don't remember what it looks 25 like, but I know that it was a shirt that
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1 K. VIRGINIE 2 Stussy and Pro Era did in collaboration. 3 And again manufactured by Stussy. And then 4 they gave a couple of items to Pro Era to 5 sell on their site. They did -- this is, 6 as a matter of fact, one of the times that 7 they did it in-store, as well. 8 Q. Could you turn to the second 9 page of Exhibit 10, please. 10 A. Okay. 11 Q. About the fifth entry down on 12 page two of Exhibit 10 is a PE OG hoodie in 13 OG black. 14 Do you see that? 15 A. Yes. 16 Q. Do you know if the Pro Era 17 brand was on that hoodie? 18 A. Yes. 19 Q. How did it appear on that 20 hoodie? 21 A. I believe it was on the front 22 of it. But I know it appeared on it. 23 Because any hoodie we've done so far, with 24 the exception of one which was a zip-up 25 hoodie, they all said Pro Era on it.
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1 K. VIRGINIE 2 Q. So I'm just wondering if that 3 PE indication means that PE was used 4 instead of Pro Era. It sounds like that's 5 not correct. 6 A. I'm not sure. You know what? 7 This might have not been -- only because 8 I'm look at when it was done. This might 9 have been a picture. I don't think the Pro 10 Era -- yeah. This was -- this might have 11 been a picture. I don't think the Pro Era 12 logo was used on this, I believe. 13 Because -- the only reason I'm saying that 14 is because I looked up and it says Pro Era 15 logo hoodie. So this particular hoodie, I 16 believe was just a picture of the 17 collective on the front of it. And I don't 18 recall whether or not it said Pro Era on 19 the inside. 20 Q. A few items down from that, it 21 says PE iPhone 4 and 5 case? 22 A. Yes. 23 Q. Do you recall what that one 24 looks like? 25 A. Yes. It was a case, a black
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1 K. VIRGINIE 2 case, with the logo all over it. 3 Q. So the Pro Era logo was on 4 that? 5 A. Yes. It did say Pro Era. 6 Q. Can you flip to the third page 7 of Exhibit 10, please? 8 A. Okay. You cut out. 9 Q. I'm looking at the third page 10 of Exhibit 10. About six lines down, under 11 "product," it says PE47 Crown Cap black. 12 Do you see that one? 13 A. Yes. 14 Q. What did that cap look like? 15 A. I actually saw one recently, 16 and I think it had PE on one side, 47 on 17 the other side, and Pro Era in the middle. 18 Not the logo as how it looks. But it said 19 Pro Era. It didn't have the logo that we 20 use. But it just -- it did specifically 21 say Pro Era. 22 Q. Did it say that on the front? 23 A. Yes, it did. 24 Q. The information in Exhibit 10, 25 that's from the Shopify software, correct?
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1 K. VIRGINIE 2 A. Yes. 3 Q. Does anyone other than you 4 currently enter information into the 5 Shopify software? 6 A. Cinematic sometimes does, and 7 that's it. Essentially -- like, for 8 instance -- as far as merchandise actually 9 entering what we are going to sell, for the 10 most part I do it. But occasionally 11 Cinematic does. 12 Q. Could you please take a look at 13 the first page of Exhibit 10 again? It 14 says at the top the period is from 15 01/01/2012 through 02/28/2017. Have there 16 been sales of Pro Era branded merchandise 17 by Pro Era, LLC since February 28 of 2017? 18 A. You mean after February 28th. 19 Q. Yes. 20 A. Yes. 21 Q. Is there a reason why we 22 stopped running the report on February 28th 23 of 2017? 24 A. That's just when it was 25 requested. So it was to date at that time.
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1 K. VIRGINIE 2 Q. If I were to try to find the 3 annual revenue of the Pro Era branded 4 clothing items by type -- so, for example, 5 by t-shirts, could I use this report to 6 find that information? 7 A. Yes. It has the total sales on 8 the last line. 9 Q. Let's look at the first page of 10 Exhibit 10. 11 A. Say that again. Sorry. 12 Q. The annual sales of potentially 13 Pro Era branded merchandise for 2013 would 14 have been $3,894.05; is that right? 15 A. No. That would be the total 16 sales for the Pro Era Stussy collab 17 t-shirt. In order to get the total sales 18 for all of the items, then you would have 19 to add up the last panel. So in 2013, Pro 20 Era Stussy collab t-shirt, there was 111. 21 The gross sales was $3,885. There was 22 $9.05 added in taxes. I'm assuming maybe, 23 depending on what state or whatever the 24 person purchased this particular t-shirt 25 from, taxes were added. And then the total
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1 K. VIRGINIE 2 sales was $3,894.05 gross. 3 Q. That reasoning will hold true 4 through this whole document? 5 A. Yes. I believe so. 6 Q. So if I wanted to understand 7 the total sales of Pro Era branded clothing 8 items for '14, I would add the total sales 9 column on page two of Exhibit 10? 10 A. Yes. For those items. Not the 11 total Pro Era. For these items listed. 12 Q. The items listed are what we 13 believe to be the Pro Era branded -- 14 A. Yes. You just cut out again. 15 MS. SHIMOMURA: Lauren, could 16 you just read back the last question 17 and answer, please? 18 (Whereupon, the referred to 19 testimony was read back by the 20 Reporter.) 21 Q. I just want to make sure the 22 record is clear. I'm sorry if I asked this 23 question previously. 24 But in order to determine the 25 annual sales of Pro Era branded merchandise
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1 K. VIRGINIE 2 for a specific year, I would add up the 3 total sales column in Exhibit 10 for the 4 specific year; is that right? 5 A. Yes. 6 MS. SHIMOMURA: Can you mark 7 this, please. 8 (Whereupon, the aforementioned 9 responses was marked as Exhibit 11 10 for identification as of this date by 11 the Reporter.) 12 Q. Ms. Virginie, we've handed you 13 a document that has been marked as Exhibit 14 11. It's entitled Applicant's Responses 15 and Objections to Opposer's First Request 16 to Applicant For Production of Documents 17 and Things. 18 Have you ever seen this 19 document before? 20 A. It was -- it was sent to me. 21 It's in my e-mail last night. But I 22 haven't -- I didn't get a chance to go over 23 it, no. 24 Q. Do you believe you had ever 25 seen it before last night?
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1 K. VIRGINIE 2 A. Not that I could recall. 3 Q. I'd like to turn to the last 4 two pages of this exhibit. 5 On the second to last page, it 6 should have a red exhibit tag that says 7 Exhibit 2. 8 Do you see that? 9 A. Yes. 10 Q. Have you ever seen these last 11 two pages before? 12 A. I believe these were the pages 13 that were given the first time when my son 14 was being deposed. 15 Q. What does this document show? 16 A. It shows different items that 17 we sell. But it also includes items that 18 don't have Pro Era written on them. 19 Q. Do you know if this is 20 information that came from the Shopify 21 database? 22 A. Yes. This came from Shopify, 23 as well. 24 Q. I'm going to move on to another 25 exhibit.
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1 K. VIRGINIE 2 MS. SHIMOMURA: Could you mark 3 this, please. 4 (Whereupon, the aforementioned 5 supplemental responses was marked as 6 Exhibit 12 for identification as of 7 this date by the Reporter.) 8 Q. Ms. Virginie, we've just handed 9 you a document marked as Exhibit 12. It's 10 entitled Applicant's Supplemental Responses 11 And Objections to Opposer's First Request 12 To Applicant For Production of Documents 13 and Things. 14 Have you ever seen this 15 document before? 16 A. I'm looking through it. I'm 17 not sure about the first page. But the 18 sales information that is in the other 19 pages, yes, I have. That is from Shopify. 20 Q. I want us to take a look at the 21 fourth page of this exhibit. It's a report 22 entitled Pro Era Sales From Inception. 23 It's dated March 2nd, 2012 to February 2nd, 24 2017. And it's seven pages long. 25 Do you see that, Ms. Virginie?
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1 K. VIRGINIE 2 A. Yes. 3 Q. Is this a report that you 4 created? 5 A. Yes. 6 Q. I believe you said it was from 7 the Shopify software? 8 A. Yes, it is. If you look at the 9 bottom, it says 10 proera.myshopify.com/admin/reports. 11 Q. What does this report show, 12 Ms. Virginie? 13 A. The same thing that the other 14 report showed. It's basically -- this 15 particular report is all of our products 16 but -- well, not products. It's showing 17 the total sales by month. It's not broken 18 down by product, as far as I can see. 19 Well, the first couple of pages. The first 20 seven pages is by monthly sales from 21 inception. 22 Q. But not broken down by product? 23 A. But not broken down by product. 24 It looks like it's just broken down by what 25 we sold for that month.
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1 K. VIRGINIE 2 Q. Does this report include all 3 products that Pro Era, LLC sold? So some 4 would be Pro Era branded, and some would 5 not be Pro Era branded? 6 A. This is every single item on 7 the Shopify. Any other time I've been 8 requested to provide information, it was 9 full disclosure. It wasn't until recently 10 that I was told to separate it by specific 11 items. 12 Q. I'd like to take a look at the 13 second report in this exhibit. Across the 14 top it says Sales By Product. 15 A. Okay. 16 Q. It's 17 pages long. 17 Do you see that one? 18 A. Yes. 19 Q. What does that report show? 20 A. This one looks like it shows 21 each product broken down; how many we sold, 22 whether or not there were any discounts or 23 refunds given on that product, and taxes, 24 etc. And the total sales for that 25 particular product since inception.
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1 K. VIRGINIE 2 Q. So this report entitled Sales 3 By Product includes all of products sold by 4 Pro Era, LLC, which includes both Pro Era 5 branded clothing items and other items that 6 are not branded with Pro Era; is that 7 right? 8 A. Right up until the printing of 9 that specific report. 10 Q. Ms. Virginie, throughout all of 11 these reports we've looked at, we see text 12 descriptions of products. 13 Is there any sort of chart that 14 would have a text description and then a 15 picture of that product to show us which 16 product matches up with the text 17 description? 18 A. We have pictures of the product 19 when we put them online. But there is no 20 way that I am aware of to print the picture 21 of the product. Again, the only platform 22 we use is Shopify. And when we do load the 23 product, we load a picture for that 24 specific product, as well. But I don't 25 know if there's a way to print a picture of
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1 K. VIRGINIE 2 it. I can check. But not to my current 3 knowledge. 4 MS. SHIMOMURA: Ms. Virginie, 5 those are all the questions that I 6 have right now. So I'm going to give 7 Ms. Kaigler an opportunity to 8 cross-examination if she would like 9 to. 10 MS. KAIGLER: I have one 11 question. 12 EXAMINATION BY 13 MS. KAIGLER: 14 Q. Earlier you mentioned that for 15 the original items that may have been 16 branded Pro Era earlier on would have been 17 sold on tour. 18 Do you know when that first 19 tour might have taken place, where that 20 merchandise would be available? 21 A. I believe -- I'm not sure. But 22 if I'm to guess, it would have been 23 Smoker's Tour. I'm not sure. I'm assuming 24 it was Smoker's Tour. Only because that's 25 one of the first tours that they went on.
DIAMOND REPORTING (877) 624-3287 [email protected] 40 41
1 K. VIRGINIE 2 I don't recall whether or not merch was 3 sold then. 4 Q. So the follow-up question. 5 If you had to guess the first 6 tour that Pro Era was on where Pro Era 7 merchandise was sold, do you know about 8 when that was? 9 A. Actually, I said Smoker's Tour. 10 Maybe Beast Coast Tour. I think that was 11 sometime in 2013, towards the end. I'm not 12 sure. But even with that, I don't recall 13 specific Pro Era branded items. I remember 14 a t-shirt that said Beast Coast. I 15 remember a t-shirt that said De La Badass. 16 So no. It wouldn't have even been then. 17 I'm trying to think of -- it wouldn't have 18 been then, those didn't have Pro Era on it, 19 per se. It might have been the World 20 Domination Tour, which would have been 21 2015, that actually had Pro Era. I can't 22 recall. Because when I think back, 23 everything that I mentioned was different. 24 It didn't say Pro Era specifically. 25 MS. KAIGLER: Okay. That's it.
DIAMOND REPORTING (877) 624-3287 [email protected] 41 42
1 K. VIRGINIE 2 MS. SHIMOMURA: That's all I 3 have, as well. Thank you for your 4 time today. We appreciate it. 5 THE WITNESS: No problem. 6 (Whereupon, at 11:21 A.M., the 7 Examination of this Witness was 8 concluded.) 9 10 °°°° 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25
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1 K. VIRGINIE 2 D E C L A R A T I O N 3 4 I hereby certify that having been 5 first duly sworn to testify to the truth, I 6 gave the above testimony. 7 8 I FURTHER CERTIFY that the foregoing 9 transcript is a true and correct transcript 10 of the testimony given by me at the time 11 and place specified hereinbefore. 12 13 14 ______15 KIMBAH VIRGINIE 16 17 18 Subscribed and sworn to before me 19 this _____ day of ______20___. 20 21 ______22 NOTARY PUBLIC 23 24 25
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1 K. VIRGINIE 2 E X H I B I T S 3 4 VIRGINIE EXHIBITS 5 6 EXHIBIT EXHIBIT PAGE 7 NUMBER DESCRIPTION 8 10 Pro Era LLC Merchandise Sales-Shopify.com 24 9 11 Applicant's Responses and 10 Objections to Opposer's First Request to Applicant for 11 Production of Documents and Things 34 12 12 Applicant's Supplemental 13 Responses and Objections to Opposer's First Request to 14 Applicant for Production of Documents and Things 36 15 16 17 (Exhibits retained by Court Reporter.) 18 19 I N D E X 20 21 EXAMINATION BY PAGE 22 MS. SHIMOMURA 3 23 MS. KAIGLER 40 24 25
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1 K. VIRGINIE 2 C E R T I F I C A T E 3 4 STATE OF NEW YORK ) : SS.: 5 COUNTY OF KINGS ) 6 7 I, LAUREN MACALUSO, a Notary Public 8 for and within the State of New York, do 9 hereby certify: 10 That the witness whose examination is 11 hereinbefore set forth was duly sworn and 12 that such examination is a true record of 13 the testimony given by that witness. 14 I further certify that I am not 15 related to any of the parties to this 16 action by blood or by marriage and that I 17 am in no way interested in the outcome of 18 this matter. 19 IN WITNESS WHEREOF, I have hereunto 20 set my hand this 19th day of April 2017. 21 22 23 ______LAUREN MACALUSO 24 25
DIAMOND REPORTING (877) 624-3287 [email protected] 45 46 K. VIRGINIE
$ 28 [1] - 31:17 annual [3] - 32:3, 32:12, bearing [2] - 11:6, 12:16 28th [2] - 31:18, 31:22 33:25 Beast [2] - 41:10, 41:14 $3,885 [1] - 32:21 2nd [2] - 36:23 another [3] - 15:10, 17:12, BEFORE [1] - 1:2 $3,894.05 [2] - 32:14, 33:2 35:24 before [10] - 1:21, 4:9, 4:12, $9.05 [1] - 32:22 3 answer [2] - 4:12, 33:17 5:19, 25:6, 34:19, 34:25, answers [1] - 4:9 35:11, 36:15, 43:18 3 [1] - 44:22 ' anyone [1] - 31:3 began [1] - 6:16 30324 [1] - 2:11 anything [12] - 5:7, 5:11, begin [1] - 6:11 '13 [2] - 9:19, 12:11 34 [1] - 44:11 5:14, 8:9, 8:11, 10:7, 12:4, beginning [2] - 22:21, 24:12 '14 [8] - 9:19, 10:15, 12:11, 36 [1] - 44:14 19:11, 20:16, 23:5, 23:19, behalf [3] - 4:18, 4:25, 7:6 12:12, 13:15, 14:15, 14:19, 26:15 believe [20] - 6:13, 10:3, 33:8 4 Apartment [1] - 3:12 11:10, 13:9, 16:11, 18:11, '15 [5] - 13:2, 13:14, 13:15, APPEAL [1] - 1:3 18:13, 21:17, 22:3, 22:23, 14:15, 14:20 4 [1] - 29:21 appear [1] - 28:19 27:4, 28:21, 29:12, 29:16, '16 [1] - 12:25 40 [1] - 44:23 appeared [1] - 28:22 33:5, 33:13, 34:24, 35:12, 47 [1] - 30:16 0 appearing [2] - 4:18, 4:25 37:6, 40:21 5 APPLICANT [1] - 1:10 believed [1] - 14:8 01/01/2012 [2] - 25:4, 31:15 Applicant [6] - 1:16, 2:9, besides [1] - 20:10 02/28/2017 [2] - 25:4, 31:15 5 [1] - 29:21 34:16, 36:12, 44:10, 44:14 best [2] - 4:8, 4:11 50 [1] - 2:5 Applicant's [4] - 34:14, between [1] - 27:14 1 51 [1] - 3:12 36:10, 44:9, 44:12 Billionaire [1] - 17:16 Application [1] - 1:7 bit [2] - 15:20, 19:19 1 [1] - 3:12 8 appreciate [1] - 42:4 black [3] - 28:13, 29:25, 10 [12] - 24:19, 24:24, 28:9, April [2] - 1:12, 45:20 30:11 28:12, 30:7, 30:10, 30:24, 85/711,680 [1] - 1:8 aren't [1] - 26:20 blood [1] - 45:16 31:13, 32:10, 33:9, 34:3, around [6] - 7:13, 10:18, BOARD [1] - 1:3 44:8 9 10:19, 20:2, 20:16, 21:7 both [1] - 39:4 1000 [1] - 2:5 91/216,455 [1] - 1:6 artist's [1] - 20:8 bottom [1] - 37:9 10038 [1] - 1:21 91216455 [1] - 2:7 artists [2] - 20:7, 22:7 Boys [1] - 17:17 10:14 [1] - 1:13 ask [4] - 4:9, 4:10, 8:14, brand [15] - 10:14, 11:17, 11 [3] - 34:9, 34:14, 44:9 12:13 12:8, 13:4, 13:7, 13:11, 111 [1] - 32:20 A asked [3] - 5:13, 25:10, 13:18, 14:10, 14:25, 15:16, 11206 [1] - 3:13 A.M [2] - 1:13, 42:6 33:22 17:12, 25:13, 26:25, 27:6, 11:21 [1] - 42:6 above [1] - 43:6 asking [3] - 3:20, 19:5, 19:6 28:17 12 [4] - 1:12, 36:6, 36:9, absolutely [1] - 8:12 assume [1] - 16:5 branded [29] - 10:11, 13:24, 44:12 accept [1] - 22:19 assumed [1] - 27:13 15:21, 16:21, 17:4, 17:8, 14202 [1] - 2:6 accommodate [1] - 4:2 assuming [4] - 4:21, 10:5, 17:20, 18:17, 18:22, 19:7, 1440 [1] - 2:10 account [1] - 24:10 32:22, 40:23 19:17, 22:11, 22:22, 23:8, 150 [1] - 1:20 across [1] - 38:13 Atlanta [1] - 2:11 25:2, 26:12, 26:20, 31:16, 160 [1] - 2:10 action [1] - 45:16 attorney [3] - 3:15, 5:13, 32:3, 32:13, 33:7, 33:13, 17 [2] - 6:21, 38:16 actual [5] - 10:14, 10:24, 25:10 33:25, 38:4, 38:5, 39:5, 19th [1] - 45:20 18:13, 23:3, 25:23 Attorneys [2] - 2:4, 2:9 39:6, 40:16, 41:13 add [3] - 32:19, 33:8, 34:2 available [1] - 40:20 branding [1] - 23:3 2 added [2] - 32:22, 32:25 aware [1] - 39:20 break [1] - 3:24 address [1] - 3:11 brick [1] - 18:6 2 [1] - 35:7 aforementioned [3] - 24:18, Broadway [1] - 1:21 2010 [1] - 6:18 B 34:8, 36:4 broken [5] - 37:17, 37:22, 2011 [1] - 6:18 after [5] - 8:2, 10:8, 10:21, back [3] - 33:16, 33:19, 37:23, 37:24, 38:21 2012 [5] - 6:15, 6:19, 9:16, 16:16, 31:18 41:22 Brooklyn [1] - 3:13 10:13, 36:23 again [15] - 10:15, 10:18, Badass [3] - 11:3, 20:5, Buffalo [1] - 2:6 2013 [6] - 9:15, 9:16, 10:15, 11:2, 11:14, 12:10, 15:6, 41:15 bunch [1] - 3:20 32:13, 32:19, 41:11 18:3, 19:25, 23:16, 25:17, band [5] - 7:13, 9:5, 10:18, business [3] - 5:14, 22:14, 2014 [3] - 9:15, 14:7, 14:11 28:3, 31:13, 32:11, 33:14, 10:20, 21:8 22:15 2015 [5] - 13:9, 14:6, 14:11, 39:21 based [7] - 7:12, 10:18, buy [1] - 22:18 41:21 against [1] - 1:6 10:19, 20:2, 20:15, 21:6, BY [5] - 2:6, 2:11, 3:6, 40:12, 2016 [1] - 13:13 age [1] - 7:5 21:9 44:21 2017 [7] - 1:12, 12:19, 12:20, aim [1] - 15:13 basement [1] - 16:24 31:17, 31:23, 36:24, 45:20 always [3] - 10:23, 23:5, basically [6] - 7:21, 11:24, 20___ [1] - 43:19 C 23:18 21:6, 24:9, 25:23, 37:14 24 [1] - 44:8 called [3] - 3:2, 11:10, 22:5 AND [2] - 1:2, 1:2 bear [2] - 9:23, 16:15
DIAMOND REPORTING (877) 624-3287 [email protected] 46 47 K. VIRGINIE
came [4] - 6:13, 14:15, concerts [1] - 17:9 35:16, 41:23 11:10, 11:13, 11:19, 12:7, 35:20, 35:22 concluded [1] - 42:8 difficult [2] - 4:6, 6:5 12:9, 12:11, 12:15, 12:17, can't [5] - 9:6, 14:20, 22:3, consultant [3] - 16:2, 16:4, directly [3] - 16:3, 22:19 13:4, 13:7, 13:8, 13:10, 25:19, 41:21 16:8 disclosure [1] - 38:9 13:11, 13:19, 13:24, 14:5, cannot [1] - 9:2 consumer [1] - 17:3 discounts [1] - 38:22 14:9, 14:10, 14:19, 14:22, cap [1] - 30:14 correct [4] - 26:4, 29:5, discussed [2] - 14:12, 14:15 14:25, 15:21, 16:16, 16:21, Cap [2] - 3:17, 30:11 30:25, 43:9 distinction [1] - 19:14 17:4, 17:7, 17:8, 17:20, CAP [2] - 1:4, 2:5 correlation [1] - 11:15 document [13] - 25:5, 25:8, 17:21, 17:24, 18:16, 18:22, case [3] - 29:21, 29:25, 30:2 COUNTY [1] - 45:5 25:9, 25:16, 26:2, 26:21, 18:24, 19:7, 19:10, 19:12, cases [1] - 8:19 couple [3] - 21:15, 28:4, 26:23, 33:4, 34:13, 34:19, 19:15, 19:16, 19:17, 19:21, Castles [1] - 21:24 37:19 35:15, 36:9, 36:15 19:23, 20:2, 20:9, 20:11, Caution [1] - 20:7 Court [2] - 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31:6 E 30:21, 31:16, 31:17, 32:3, Cinematic [4] - 24:15, 25:21, D E-C-K-O [1] - 15:18 32:13, 32:16, 32:20, 33:7, 25:25, 31:11 database [1] - 35:21 e-mail [1] - 34:21 33:11, 33:13, 33:25, 35:18, clear [1] - 33:22 date [7] - 9:6, 10:16, 24:20, earlier [3] - 15:15, 40:14, 36:22, 38:3, 38:4, 38:5, clothes [1] - 21:12 25:19, 31:25, 34:10, 36:7 40:16 39:4, 39:6, 40:16, 41:6, clothing [38] - 10:12, 10:24, DATE [1] - 1:12 early [3] - 23:9, 23:22, 23:25 41:13, 41:18, 41:21, 41:24, 11:3, 13:17, 13:23, 13:25, dated [1] - 36:23 Ebbets [1] - 21:23 44:8 14:3, 14:10, 14:12, 14:25, dates [1] - 14:20 ECHO [1] - 15:17 ESQ [2] - 2:6, 2:11 15:22, 16:15, 17:4, 17:8, Ecko [5] - 14:4, 14:5, 14:18, essentially [1] - 31:7 18:17, 18:24, 19:15, 19:21, day [2] - 43:19, 45:20 15:16, 15:19 etc [3] - 7:21, 9:5, 38:24 19:23, 20:15, 20:18, 21:12, days [1] - 5:11 EMERY [1] - 2:4 every [2] - 26:9, 38:6 21:13, 21:16, 21:21, 22:11, De [1] - 41:15 everything [10] - 4:5, 7:10, 23:8, 26:3, 26:5, 26:7, deal [1] - 16:3 Emery [1] - 3:16 7:21, 20:15, 21:5, 24:3, 26:9, 26:12, 26:19, 26:24, deals [1] - 16:7 employed [1] - 5:23 24:4, 24:7, 24:10, 41:23 27:7, 32:4, 33:7, 39:5 Decades [11] - 11:11, 11:19, employee [1] - 8:8 EVITA [2] - 2:9, 2:11 Club [1] - 17:17 11:22, 11:24, 17:15, 17:16, employees [1] - 8:6 exact [4] - 9:6, 10:16, 14:20, CO [2] - 1:4, 2:5 21:17, 21:21, 27:10, 27:15, employer [1] - 6:2 25:19 Coast [2] - 41:10, 41:14 27:18 end [8] - 8:11, 9:16, 9:18, [1] 10:15, 12:10, 12:21, 25:21, Examination [1] - 42:7 collab [2] - 32:16, 32:20 depend - 15:2 41:11 EXAMINATION [3] - 3:6, collaborated [1] - 21:20 depending [2] - 15:8, 32:23 enter [1] - 31:4 40:12, 44:21 collaboration [8] - 15:10, depends [2] - 15:4, 15:5 examination [3] - 40:8, 17:12, 17:18, 21:16, 27:14, deposed [2] - 5:22, 35:14 entering [1] - 31:9 45:10, 45:12 27:18, 27:23, 28:2 deposition [3] - 3:19, 5:21, entertainment [1] - 10:20 examined [1] - 3:5 collective [10] - 19:11, 20:2, 24:23 entitled [4] - 34:14, 36:10, example [3] - 9:23, 19:2, 20:3, 20:12, 20:17, 20:21, DEPOSITION [1] - 1:16 36:22, 39:2 32:4 20:23, 21:7, 21:14, 29:17 description [2] - 39:14, entity [3] - 4:19, 6:16, 20:22 exception [1] - 28:24 column [2] - 33:9, 34:3 39:17 entry [1] - 28:11 EXHIBIT [2] - 44:6 combination [1] - 11:9 DESCRIPTION [1] - 44:7 ERA [5] - 1:4, 1:9, 1:17, 2:5, exhibit [6] - 24:23, 35:4, companies [1] - 21:19 descriptions [1] - 39:12 2:10 35:6, 35:25, 36:21, 38:13 Company [1] - 3:18 designed [1] - 12:5 Era [160] - 3:17, 4:21, 5:2, 5:16, 6:4, 6:9, 6:12, 6:13, Exhibit [16] - 24:19, 24:23, company [11] - 6:6, 6:24, designer [1] - 22:5 28:9, 28:12, 30:7, 30:10, 7:12, 10:23, 11:10, 11:23, determine [1] - 33:24 6:15, 7:9, 7:12, 8:7, 8:15, 30:24, 31:13, 32:10, 33:9, 15:10, 16:13, 21:11, 21:12, developed [1] - 12:2 8:16, 8:20, 8:21, 8:24, 34:3, 34:9, 34:13, 35:7, 21:13 Diamond [1] - 1:20 8:25, 9:4, 9:7, 9:12, 9:13, 9:18, 9:19, 9:22, 9:23, 36:6, 36:9 comprises [1] - 20:3 difference [1] - 25:17 10:7, 10:10, 10:11, 10:23, EXHIBITS [1] - 44:4 concerned [1] - 25:11 different [8] - 15:23, 16:6, 10:24, 10:25, 11:5, 11:7, Exhibits [1] - 44:17 concert [1] - 17:6 17:3, 18:15, 20:3, 22:24,
DIAMOND REPORTING (877) 624-3287 [email protected] 47 48 K. VIRGINIE
existence [1] - 6:14 Georgia [1] - 2:11 in-store [1] - 28:7 Kim [1] - 3:15 give [1] - 40:6 INC [2] - 1:4, 2:5 KIMBAH [2] - 1:17, 43:15 F given [5] - 5:18, 35:13, Inc [2] - 1:20, 3:18 Kimbah [1] - 3:10 38:23, 43:10, 45:13 inception [5] - 7:2, 23:18, KIMBERLY [1] - 2:6 facility [1] - 16:25 goes [2] - 20:15, 25:13 25:13, 37:21, 38:25 KINGS [1] - 45:5 fact [1] - 28:6 good [3] - 3:14, 4:13, 19:13 Inception [1] - 36:22 Kirk [1] - 20:6 factor [2] - 14:23, 15:11 gross [2] - 32:21, 33:2 include [1] - 38:2 know [26] - 3:22, 3:25, 5:4, factory [1] - 15:8 group [2] - 20:10, 21:5 includes [3] - 35:17, 39:3, 8:23, 9:9, 9:10, 9:21, fair [1] - 27:8 Group [3] - 24:15, 25:22, 39:4 10:10, 11:5, 11:15, 11:18, far [13] - 5:15, 7:11, 9:19, 25:25 independent [2] - 16:13, 12:7, 15:13, 18:8, 20:19, 12:5, 14:15, 20:14, 25:10, guess [7] - 9:14, 9:17, 11:22, 16:14 22:7, 25:16, 26:14, 27:25, 25:13, 25:14, 26:14, 28:23, 18:4, 24:2, 40:22, 41:5 indication [1] - 29:3 28:16, 28:22, 29:6, 35:19, 31:8, 37:18 guys [2] - 4:15, 19:5 individual [1] - 26:7 39:25, 40:18, 41:7 fashion [1] - 18:25 individuals [1] - 20:11 knowledge [1] - 40:3 February [6] - 12:20, 12:21, information [7] - 5:17, 30:24, 31:17, 31:18, 31:22, 36:23 H 31:4, 32:6, 35:20, 36:18, L few [3] - 5:11, 11:24, 29:20 hand [1] - 45:20 38:8 Field [1] - 21:23 handed [3] - 24:22, 34:12, L-I-N-E-R [1] - 16:11 initially [4] - 9:2, 10:21, 11:2, fifth [1] - 28:11 La [1] - 41:15 36:8 14:17 File [2] - 2:7, 2:12 handle [5] - 7:14, 7:17, 7:22, label [13] - 7:21, 11:18, inside [11] - 11:18, 13:19, 13:18, 13:24, 15:14, 24:3, find [3] - 9:8, 32:2, 32:6 8:3, 24:6 13:24, 14:5, 14:10, 14:22, 24:4, 24:5, 24:13, 24:14, fine [1] - 4:14 handles [1] - 8:10 14:25, 15:14, 20:9, 27:6, 25:18, 27:3, 27:6 finish [2] - 4:9, 4:11 handling [3] - 24:10, 27:12, 29:19 27:19 last [11] - 5:11, 12:24, 25:21, firm [1] - 3:16 instance [6] - 17:17, 17:22, 32:8, 32:19, 33:16, 34:21, First [4] - 34:15, 36:11, happen [1] - 21:8 20:5, 21:3, 27:9, 31:8 happy [1] - 3:25 34:25, 35:3, 35:5, 35:10 44:10, 44:13 interested [1] - 45:17 [34] Hart [1] - 3:12 launch [1] - 10:7 first - 3:3, 8:24, 9:3, introduce [1] - 18:9 HARTER [1] - 2:4 Lauren [5] - 1:22, 4:4, 4:6, 9:12, 9:16, 9:22, 10:4, inventory [2] - 16:21, 17:14 10:6, 10:11, 11:6, 11:8, Harter [1] - 3:16 33:15 iPhone [2] - 8:18, 29:21 11:14, 12:8, 12:16, 13:6, hat [4] - 11:11, 11:18, 19:3, LAUREN [2] - 45:7, 45:23 item [5] - 17:13, 26:10, 27:7, LAW [1] - 2:9 13:10, 13:22, 14:2, 14:17, 27:11 27:21, 38:6 14:18, 21:8, 22:10, 22:21, hats [5] - 8:17, 11:6, 11:8, lead [1] - 14:24 items [47] - 8:15, 10:12, 31:13, 32:9, 35:13, 36:17, let's [1] - 32:9 11:14, 12:2 13:17, 13:23, 13:25, 14:10, 37:19, 40:18, 40:25, 41:5, liability [1] - 6:24 haven't [2] - 27:21, 34:22 14:12, 14:18, 14:25, 15:6, 43:5 limited [1] - 6:24 he's [1] - 16:14 15:7, 15:22, 16:15, 17:5, flip [1] - 30:6 head [2] - 9:9, 22:2 17:8, 18:17, 18:24, 19:15, line [3] - 25:2, 25:3, 32:8 follow [1] - 41:4 headbands [5] - 8:18, 12:22, 19:16, 19:22, 19:23, 21:16, Liner [1] - 16:9 follow-up [1] - 41:4 12:23, 12:24, 13:3 21:21, 22:11, 22:25, 23:8, liner [2] - 16:10, 16:12 follows [1] - 3:5 hear [3] - 3:21, 4:15, 7:24 26:3, 26:6, 26:12, 26:19, lines [2] - 24:24, 30:10 foregoing [1] - 43:8 heard [1] - 21:17 26:24, 27:5, 28:4, 29:20, list [1] - 26:7 formation [1] - 6:23 held [1] - 1:19 32:4, 32:18, 33:8, 33:10, listed [2] - 33:11, 33:12 formulated [1] - 7:13 help [1] - 6:6 33:11, 33:12, 35:16, 35:17, little [1] - 15:20 forth [1] - 45:11 helped [1] - 6:20 38:11, 39:5, 40:15, 41:13 live [1] - 27:21 Fountain [1] - 2:5 hereby [2] - 43:4, 45:9 LLC [39] - 1:9, 1:17, 2:10, fourth [2] - 25:2, 36:21 hereinbefore [2] - 43:11, J 5:2, 6:4, 6:9, 6:12, 7:3, 7:9, friend [1] - 6:17 45:11 8:7, 8:15, 8:20, 8:24, 9:12, Jared [1] - 16:9 front [4] - 19:2, 28:21, 29:17, hereunto [1] - 45:19 9:22, 10:10, 11:5, 12:7, job [1] - 4:7 30:22 hold [2] - 6:8, 33:3 12:16, 13:7, 13:10, 14:9, Joey [2] - 11:3, 20:5 fulfillment [3] - 7:22, 8:3, hoodie [7] - 28:12, 28:17, 17:7, 19:15, 19:16, 19:21, 24:7 28:20, 28:23, 28:25, 29:15 July [1] - 6:14 21:20, 22:12, 24:25, 25:15, full [2] - 17:14, 38:9 25:24, 26:3, 26:13, 26:19, fully [1] - 5:20 I K 26:24, 31:17, 38:3, 39:4, FURTHER [1] - 43:8 44:8 Kaigler [1] - 40:7 I'd [4] - 12:13, 25:13, 35:3, further [1] - 45:14 LLP [1] - 2:4 KAIGLER [6] - 2:9, 2:11, 38:12 load [2] - 39:22, 39:23 40:10, 40:13, 41:25, 44:23 I've [1] - 38:7 location [2] - 16:17, 18:7 G keep [2] - 22:12, 22:16 identification [3] - 24:20, locations [3] - 17:23, 18:5, keeping [1] - 23:21 gave [3] - 11:24, 28:4, 43:6 34:10, 36:6 18:14 kept [1] - 16:17 general [1] - 8:10 IN [2] - 1:2, 45:19 logo [9] - 9:19, 10:17, 14:16, Kid [1] - 22:5 generally [1] - 9:10 in-person [1] - 9:25 29:12, 29:15, 30:2, 30:3,
DIAMOND REPORTING (877) 624-3287 [email protected] 48 49 K. VIRGINIE
30:18, 30:19 mostly [2] - 9:5, 14:5 oh [3] - 17:24, 22:4, 22:17 Place [1] - 2:10 long [2] - 36:24, 38:16 move [1] - 35:24 okay [5] - 4:15, 28:10, 30:8, platform [1] - 39:21 look [8] - 27:17, 29:8, 30:14, Mr [1] - 16:12 38:15, 41:25 platforms [1] - 23:14 31:12, 32:9, 36:20, 37:8, MS [12] - 3:7, 24:16, 33:15, old [1] - 6:21 play [1] - 9:7 38:12 34:6, 36:2, 40:4, 40:10, ones [5] - 11:25, 12:5, 14:13, plays [1] - 15:11 looked [5] - 11:12, 27:11, 40:13, 41:25, 42:2, 44:22, 14:14, 22:3 Plaza [1] - 2:5 27:23, 29:14, 39:11 44:23 online [11] - 7:22, 9:24, 10:8, Plaza-Suite [1] - 2:5 looking [2] - 30:9, 36:16 Ms [12] - 3:14, 4:17, 5:24, 10:12, 17:6, 17:9, 18:7, please [8] - 3:22, 24:17, looks [5] - 27:24, 29:24, 24:22, 25:6, 34:12, 36:8, 18:16, 23:5, 23:14, 39:19 28:9, 30:7, 31:12, 33:17, 30:18, 37:24, 38:20 36:25, 37:12, 39:10, 40:4, opportunity [1] - 40:7 34:7, 36:3 lot [1] - 19:15 40:7 OPPOSER [1] - 1:5 Please [1] - 3:8 Music [3] - 24:15, 25:22, opposer [1] - 3:17 point [2] - 3:24, 27:12 M 25:25 Opposer [1] - 2:4 pop [2] - 17:10, 17:16 music [10] - 7:12, 8:11, Opposer's [4] - 34:15, 36:11, pop-up [2] - 17:10, 17:16 Macaluso [1] - 1:22 20:14, 20:19, 21:5, 21:7, 44:10, 44:13 position [1] - 6:9 MACALUSO [2] - 45:7, 45:23 21:8, 21:9, 21:14 Opposition [1] - 1:6 potentially [2] - 14:10, 32:12 mail [1] - 34:21 music-based [1] - 7:12 order [2] - 32:17, 33:24 prepare [1] - 5:7 manager [4] - 8:10, 22:14, musicians [1] - 20:4 Order [1] - 1:19 previously [1] - 33:23 22:15, 23:24 original [2] - 22:25, 40:15 print [2] - 39:20, 39:25 manufacture [1] - 15:7 N originated [1] - 11:23 printed [1] - 14:4 manufactured [4] - 14:4, others [2] - 22:2, 22:4 printing [1] - 39:8 16:17, 18:3, 28:3 name [11] - 3:8, 3:15, 4:4, otherwise [2] - 18:20, 23:17 prior [1] - 25:24 manufacturer [1] - 16:4 5:16, 10:20, 10:23, 16:9, outcome [1] - 45:17 Pro [158] - 4:21, 5:2, 5:16, manufacturers [3] - 15:21, 20:8, 20:10, 20:12, 24:14 overlook [1] - 7:10 6:4, 6:9, 6:12, 6:13, 6:15, 15:23, 16:6 named [1] - 4:19 ownership [1] - 25:22 7:9, 7:12, 8:6, 8:15, 8:16, manufacturing [1] - 12:3 narrow [1] - 9:11 8:20, 8:21, 8:24, 8:25, 9:3, March [1] - 36:23 NE [1] - 2:10 9:4, 9:7, 9:12, 9:13, 9:18, Mark [1] - 15:18 NE-Suite [1] - 2:10 P 9:19, 9:22, 9:23, 10:7, mark [7] - 9:23, 12:16, 13:19, necessarily [2] - 14:21, 15:7 PAGE [2] - 44:6, 44:21 10:10, 10:11, 10:22, 10:24, 13:23, 24:16, 34:6, 36:2 need [2] - 3:24, 15:6 page [11] - 25:23, 28:9, 10:25, 11:5, 11:6, 11:9, marked [6] - 24:19, 24:23, never [6] - 9:4, 17:15, 18:11, 28:12, 30:6, 30:9, 31:13, 11:13, 11:19, 12:7, 12:8, 34:9, 34:13, 36:5, 36:9 21:4, 23:13, 23:19 32:9, 33:9, 35:5, 36:17, 12:11, 12:15, 12:17, 13:4, NEW [3] - 1:4, 2:5, 45:4 markets [1] - 18:10 36:21 13:6, 13:7, 13:10, 13:11, next [1] - 25:3 marriage [1] - 45:16 pages [8] - 35:4, 35:11, 13:19, 13:23, 14:5, 14:9, Nick [1] - 20:6 matches [1] - 39:16 35:12, 36:19, 36:24, 37:19, 14:18, 14:22, 14:24, 15:21, matter [2] - 28:6, 45:18 night [2] - 34:21, 34:25 37:20, 38:16 16:16, 16:21, 17:4, 17:7, mean [5] - 15:3, 16:19, Night [1] - 20:6 paid [1] - 6:7 17:20, 17:24, 18:16, 18:22, 18:23, 20:23, 31:18 NONE [1] - 2:12 panel [1] - 32:19 18:24, 19:7, 19:10, 19:12, means [3] - 3:19, 4:6, 29:3 Notary [3] - 1:22, 3:4, 45:7 part [9] - 7:7, 7:23, 8:5, 19:14, 19:16, 19:17, 19:20, mentioned [6] - 7:15, 15:15, NOTARY [1] - 43:22 21:10, 22:8, 23:2, 23:25, 19:23, 19:25, 20:9, 20:11, 17:15, 18:21, 40:14, 41:23 nothing [1] - 8:12 26:16, 31:10 20:13, 20:14, 20:16, 20:17, merch [1] - 41:2 number [4] - 15:12, 15:23, particular [6] - 25:15, 27:12, 20:19, 20:20, 20:23, 21:2, Merchandise [1] - 44:8 16:6, 24:23 29:15, 32:24, 37:15, 38:25 21:3, 21:4, 21:6, 21:20, merchandise [24] - 7:14, NUMBER [1] - 44:7 Parties [1] - 1:18 22:6, 22:9, 22:10, 22:12, 7:16, 7:18, 8:9, 8:13, parties [1] - 45:15 22:20, 23:3, 23:5, 23:7, 16:21, 18:22, 18:25, 19:7, O PATENT [1] - 1:2 23:13, 24:25, 25:2, 25:10, 19:10, 21:2, 21:3, 21:6, PayPal [1] - 22:19 25:12, 25:15, 25:24, 26:3, Objections [4] - 34:15, 22:22, 23:13, 23:22, 25:3, PE [5] - 28:12, 29:3, 29:21, 26:11, 26:12, 26:19, 26:20, 36:11, 44:10, 44:13 25:11, 31:8, 31:16, 32:13, 30:16 26:24, 26:25, 27:2, 27:3, occasionally [3] - 17:10, 33:25, 40:20, 41:7 PE47 [1] - 30:11 27:6, 27:14, 27:16, 28:2, 17:23, 31:10 method [2] - 9:21, 23:21 period [2] - 25:3, 31:14 28:4, 28:16, 28:25, 29:4, occurrence [1] - 23:9 methods [1] - 17:9 person [2] - 9:25, 32:24 29:9, 29:11, 29:14, 29:18, occurs [1] - 14:24 middle [1] - 30:17 personally [1] - 18:12 30:3, 30:5, 30:17, 30:19, OF [3] - 2:9, 45:4, 45:5 missed [1] - 26:15 pertaining [1] - 11:13 30:21, 31:16, 31:17, 32:3, OFFICE [1] - 1:2 mistaken [1] - 6:15 physically [1] - 18:12 32:13, 32:16, 32:19, 33:7, OFFICES [1] - 2:9 mom [1] - 7:7 picture [7] - 29:9, 29:11, 33:11, 33:13, 33:25, 35:18, offices [1] - 1:20 month [2] - 37:17, 37:25 29:16, 39:15, 39:20, 39:23, 36:22, 38:3, 38:4, 38:5, official [2] - 6:8, 6:19 monthly [1] - 37:20 39:25 39:4, 39:6, 40:16, 41:6, officially [1] - 6:14 morning [1] - 3:14 pictures [2] - 9:5, 39:18 41:13, 41:18, 41:21, 41:24, OG [2] - 28:12, 28:13 mortar [1] - 18:6 place [2] - 40:19, 43:11 44:8
DIAMOND REPORTING (877) 624-3287 [email protected] 49 50 K. VIRGINIE
PRO [3] - 1:9, 1:17, 2:10 reflects [1] - 26:5 24:9, 24:10, 37:13 six [1] - 30:10 probably [5] - 9:8, 10:4, refunds [1] - 38:23 sat [1] - 5:20 smaller [1] - 19:22 10:6, 11:12, 11:22 register [1] - 6:20 saw [2] - 18:12, 30:15 Smoker's [3] - 40:23, 40:24, problem [1] - 42:5 registered [1] - 6:22 saying [2] - 14:17, 29:13 41:9 produce [1] - 5:13 registering [1] - 6:19 scratch [1] - 17:19 socks [3] - 8:18, 13:7, 13:9 product [13] - 30:11, 37:18, related [1] - 45:15 se [3] - 21:12, 26:6, 41:19 software [5] - 22:16, 23:10, 37:22, 37:23, 38:21, 38:23, released [1] - 9:3 second [3] - 28:8, 35:5, 30:25, 31:5, 37:7 38:25, 39:15, 39:16, 39:18, remember [10] - 9:8, 11:11, 38:13 sold [29] - 8:15, 8:20, 9:12, 39:21, 39:23, 39:24 12:6, 12:15, 21:22, 21:25, SECREST [1] - 2:4 9:17, 9:22, 11:6, 11:9, Product [2] - 38:14, 39:3 27:10, 27:24, 41:13, 41:15 Secrest [1] - 3:16 12:8, 12:16, 13:7, 13:23, Production [4] - 34:16, removed [1] - 26:21 seen [6] - 25:5, 27:21, 34:18, 17:7, 17:13, 17:22, 18:17, 36:12, 44:11, 44:14 repeat [2] - 3:23, 19:18 34:25, 35:10, 36:14 18:19, 23:5, 23:8, 23:13, products [8] - 5:15, 13:16, rephrase [1] - 3:23 sell [7] - 5:16, 13:11, 21:12, 23:17, 26:12, 26:24, 37:25, 27:18, 37:15, 37:16, 38:3, report [12] - 31:22, 32:5, 26:10, 28:5, 31:9, 35:17 38:3, 38:21, 39:3, 40:17, 39:3, 39:12 36:21, 37:3, 37:11, 37:14, selling [4] - 10:11, 18:4, 41:3, 41:7 ProEra.com [1] - 18:19 37:15, 38:2, 38:13, 38:19, 22:11, 22:22 someone [2] - 7:20, 11:16 proera.myshopify.com/ 39:2, 39:9 sells [7] - 19:15, 19:16, something [6] - 8:2, 11:3, admin/reports [1] - 37:10 reporter [1] - 4:3 19:21, 26:4, 26:6, 26:8, 11:13, 11:20, 15:2, 17:24 Progressive [1] - 20:11 Reporter [5] - 24:21, 33:20, 26:19 sometime [6] - 6:14, 6:18, provide [3] - 7:8, 25:10, 38:8 34:11, 36:7, 44:17 sent [1] - 34:20 13:2, 14:6, 14:19, 41:11 Public [3] - 1:22, 3:4, 45:7 Reporting [1] - 1:20 separate [6] - 12:24, 13:12, sometimes [12] - 13:20, PUBLIC [1] - 43:22 reports [1] - 39:11 20:22, 20:24, 21:11, 38:10 14:21, 15:3, 15:5, 15:11, purchase [1] - 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16:25 26:23 same [6] - 4:7, 12:13, 24:5, situation [1] - 6:5 store [3] - 10:13, 18:12, 28:7
DIAMOND REPORTING (877) 624-3287 [email protected] 50 51 K. VIRGINIE
stores [1] - 18:11 third [2] - 30:6, 30:9 V 27:2, 28:15, 28:18, 29:22, Street [1] - 3:12 through [12] - 7:5, 9:21, 29:25, 30:5, 30:13, 30:23, Stussy [5] - 27:22, 28:2, 17:3, 18:16, 23:6, 24:2, Valley [1] - 2:10 31:2, 31:19, 31:20, 32:7, 28:3, 32:16, 32:20 24:3, 25:4, 26:15, 31:15, variety [1] - 19:21 33:5, 33:10, 33:14, 34:5, submitted [1] - 5:17 33:4, 36:16 via [3] - 9:3, 22:18, 24:5 35:9, 35:22, 36:19, 37:2, Subscribed [1] - 43:18 throughout [1] - 39:10 VIA [2] - 2:7, 2:12 37:5, 37:8, 38:18 subset [1] - 19:22 time [18] - 4:7, 6:20, 11:14, VIDEOCONFERENCE [2] - YORK [1] - 45:4 Suite [2] - 2:5, 2:10 13:6, 13:22, 15:13, 17:11, 2:7, 2:12 York [7] - 1:21, 1:23, 2:6, 3:4, Super [1] - 22:5 17:13, 18:2, 20:20, 22:24, VIRGINIE [3] - 1:18, 43:15, 3:13, 45:8 supplemental [1] - 36:5 27:13, 27:20, 31:25, 35:13, 44:4 you've [1] - 21:15 Supplemental [2] - 36:10, 38:7, 42:4, 43:10 Virginie [12] - 3:10, 3:14, 44:12 TIME [1] - 1:13 4:17, 5:24, 24:22, 25:6, Z sure [18] - 10:5, 10:14, 10:16, times [3] - 15:13, 18:21, 28:6 34:12, 36:8, 36:25, 37:12, zip [1] - 28:24 10:22, 10:25, 11:12, 12:10, title [1] - 6:9 39:10, 40:4 zip-up [1] - 28:24 14:2, 14:7, 15:18, 18:8, today [10] - 3:17, 4:4, 4:25, Zumiez [1] - 18:5 26:17, 29:6, 33:21, 36:17, 5:5, 5:8, 5:15, 19:7, 19:10, W 40:21, 40:23, 41:12 21:16, 42:4 want [3] - 8:14, 33:21, 36:20 sweatpants [3] - 8:18, 12:14, topics [1] - 5:4 ° wanted [3] - 18:9, 25:11, 12:16 total [10] - 32:7, 32:15, 32:17, 33:6 ° [4] - 42:10 sweatshirts [2] - 8:17, 12:8 32:25, 33:7, 33:8, 33:11, we'll [1] - 3:25 sworn [4] - 3:3, 43:5, 43:18, 34:3, 37:17, 38:24 we're [4] - 3:18, 15:4, 21:13 45:11 Tour [5] - 40:23, 40:24, 41:9, we've [14] - 12:23, 14:12, 41:10, 41:20 17:15, 17:17, 18:21, 21:23, tour [10] - 10:4, 10:6, 10:9, T 23:5, 23:18, 24:22, 28:23, 22:25, 23:4, 23:9, 23:24, 34:12, 36:8, 39:11 t-shirt [9] - 8:25, 9:12, 19:2, 40:17, 40:19, 41:6 website [1] - 7:20 27:23, 32:17, 32:20, 32:24, touring [6] - 8:11, 10:8, 23:2, websites [1] - 18:16 41:14, 41:15 23:12, 23:23, 23:25 [6] weren't [3] - 11:25, 12:2, t-shirts - 8:17, 8:23, 9:22, tours [1] - 40:25 15:16, 21:9, 32:5 12:4 towards [1] - 41:11 tag [1] - 35:6 what's [1] - 24:14 track [2] - 22:16, 23:22 take [5] - 3:18, 3:24, 31:12, WHEREOF [1] - 45:19 TRADEMARK [2] - 1:2, 1:2 36:20, 38:12 Whereupon [5] - 24:18, trademark [7] - 8:16, 8:21, 33:18, 34:8, 36:4, 42:6 taken [2] - 1:18, 40:19 8:25, 9:4, 9:13, 11:6, 16:16 taking [1] - 4:5 whole [1] - 33:4 transcript [2] - 43:9 talked [2] - 13:17, 15:20 why [2] - 14:17, 31:21 TRIAL [1] - 1:2 taxes [3] - 32:22, 32:25, wide [1] - 19:21 true [4] - 14:11, 33:3, 43:9, within [1] - 45:8 38:23 45:12 technically [1] - 6:3 witness [3] - 3:3, 45:10, truth [1] - 43:5 Tees [1] - 21:24 45:13 try [2] - 15:14, 32:2 tell [1] - 18:15 WITNESS [2] - 42:5, 45:19 trying [3] - 23:20, 26:17, Witness [2] - 1:17, 42:7 term [3] - 19:7, 19:8, 19:9 41:17 [1] wondering [2] - 16:20, 29:2 testified - 3:5 turn [2] - 28:8, 35:3 [2] words [1] - 18:24 testify - 5:5, 43:5 twice [1] - 12:23 [6] work [2] - 6:4, 16:12 testimony - 5:8, 5:18, type [3] - 6:5, 9:25, 32:4 working [1] - 6:11 33:19, 43:6, 43:10, 45:13 types [2] - 8:14, 26:9 text [3] - 39:11, 39:14, 39:16 World [1] - 41:19 thank [1] - 42:3 U wouldn't [2] - 41:16, 41:17 THE [3] - 1:2, 1:2, 42:5 written [1] - 35:18 there's [3] - 17:10, 23:14, under [8] - 7:5, 8:15, 8:21, 39:25 8:25, 12:8, 13:7, 13:11, Y they're [2] - 16:16, 20:11 30:10 yeah [2] - 19:25, 29:10 thing [6] - 17:25, 20:21, understand [5] - 3:21, 16:18, year [7] - 9:12, 12:18, 12:24, 20:25, 24:9, 25:14, 37:13 23:20, 26:18, 33:6 25:20, 25:21, 34:2, 34:4 Things [4] - 34:17, 36:13, understanding [4] - 4:18, years [1] - 6:21 44:11, 44:14 4:24, 19:4, 19:20 yes [39] - 4:16, 4:22, 4:23, things [2] - 7:6, 15:12 UNITED [1] - 1:2 5:3, 5:25, 6:4, 6:25, 7:4, think [10] - 11:8, 19:13, 22:4, unsure [1] - 11:21 7:19, 7:25, 13:5, 22:23, 22:6, 29:9, 29:11, 30:16, 25:7, 26:14, 26:16, 26:22, 41:10, 41:17, 41:22
DIAMOND REPORTING (877) 624-3287 [email protected] 51 1
1 2 IN THE UNITED STATES PATENT AND TRADEMARK OFFICE BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD 3 ------X NEW ERA CAP CO., INC., 4 OPPOSER, 5 6 -against- Opposition No.: 91216455 7 Application Serial No: 8 85/711,680 9 PRO ERA, LLC, 10 APPLICANT. ------X 11 12 DATE: February 28, 2017 13 TIME: 10:19 A.M. 14 15 VIDEOCONFERENCED DEPOSITION of 16 the Applicant, PRO ERA, LLC, by a witness, 17 ANDREW FRIEDMAN, taken by the respective 18 parties, pursuant to an Order and to the 19 Federal Rules of Civil Procedure, held at 20 the offices of Diamond Reporting, Inc., 21 150 Broadway, 13th Floor, New York, New 22 York 10038, before Abbey Mills-Dugan, a 23 Notary Public of the State of New York. 24 25
DIAMOND REPORTING (718) 624-7200 [email protected] 1 2
1 2 A P P E A R A N C E S: 3 4 HARTER, SECREST & EMERY LLP Attorneys for the Opposer 5 NEW ERA CAP CO., INC. 1600 Bausch & Lomb Place 6 Rochester, New York 14604 BY: KIMBERLY I. SHIMOMURA, ESQ. 7 -and- KATHERINE A. MARKERT, ESQ. 8 (via videoconference) 9 10 LAW OFFICES OF EVITA G. KAIGLER, ESQ. Attorneys for the Applicant 11 PRO ERA, LLC 1440 Dutch Valley Place Northeast, Suite 160 12 Atlanta, Georgia 30324 BY: EVITA G. KAIGLER, ESQ. 13 (via videoconference) 14
15 *** 16 17 18 19 20 21 22 23 24 25
DIAMOND REPORTING (718) 624-7200 [email protected] 2 3
1 A. FRIEDMAN 2 A N D R E W F R I E D M A N, called as a 3 witness, having been first duly sworn by a 4 Notary Public of the State of New York, was 5 examined and testified as follows: 6 EXAMINATION BY 7 MS. SHIMOMURA: 8 Q. Please state your name for the 9 record. 10 A. Andrew Friedman. 11 Q. What is your address? 12 A. 250 Mercer Street, New York, 13 New York 10012. 14 Q. Good morning, Mr. Friedman. My 15 name is Kim Shimomura, I am with Harter, 16 Secrest, and we are here to take some 17 testimony this morning. 18 We are going to be asking you a 19 number of questions today, so if you can't 20 hear me or (inaudible) or if you don't 21 understand my question, please let me know; 22 we can either rephrase or have it read 23 back. 24 If you need a break at any 25 time, let us know; we can accommodate that.
DIAMOND REPORTING (718) 624-7200 [email protected] 3 4
1 A. FRIEDMAN 2 You just have to answer any question on the 3 table before we take our break. 4 You will notice that we have 5 Abbey with us today, who is our court 6 reporter. Abbey is taking down everything 7 that we say, and she's going to have a 8 really rough day if we talk at the same 9 time, so I am going to do my best to let 10 you finish all of your answers completely 11 before I start my next question, and I am 12 going to ask that you try to let me finish 13 my question before you start your answer, 14 so that, hopefully, Abbey doesn't have a 15 bad day. 16 Are you all set? 17 A. Yes. 18 Q. Is it your understanding that 19 you are here today giving testimony on 20 behalf of an entity named Pro Era, LLC? 21 A. Yes. 22 Q. Did you do anything to prepare 23 for today's testimony? 24 A. Not too much. 25 Q. What did you do?
DIAMOND REPORTING (718) 624-7200 [email protected] 4 5
1 A. FRIEDMAN 2 A. I reviewed some e-mails. 3 Q. Did you talk to anyone? 4 A. No. 5 Q. Did you review e-mails that we 6 had provided during discovery, do you know? 7 MS. KAIGLER: I sent him the 8 e-mails that were included in the 9 information for this deposition. 10 MS. SHIMOMURA: Okay. 11 Q. Mr. Friedman, are the e-mails 12 that Ms. Kaigler sent you as a package of 13 exhibits, are those the ones you reviewed? 14 A. Yes. 15 Q. Did you review any other 16 documents to prepare for today's testimony? 17 A. Just what was in the packet. 18 Q. Thank you. Have you ever given 19 testimony before, Mr. Friedman? 20 A. Yes. 21 Q. How many times? 22 A. Maybe three or four. 23 Q. Okay. Have you ever testified 24 in relation to Pro Era before? 25 A. No.
DIAMOND REPORTING (718) 624-7200 [email protected] 5 6
1 A. FRIEDMAN 2 Q. Mr. Friedman, where are you 3 currently employed? 4 A. I am self-employed. I have a 5 business called Duck Down Music and 6 3D marketing and consulting. 7 Q. Did you work with Pro Era on 8 behalf of one or both of these entities? 9 A. On behalf of 3D is how we 10 represent ourselves that way. 11 Q. I'm sorry, is Duck Down the 12 same as 3D? 13 A. No. They are separate 14 businesses. 15 Q. So, 3D is the entity through 16 which you worked with Pro Era? 17 A. Correct. 18 Q. What is the business of 3D? 19 A. We are a marketing and 20 consulting and distribution company, 21 primarily in the music business. 22 Q. Did you say you were an owner 23 of 3D? 24 A. Yes. 25 Q. When did you start 3D, just
DIAMOND REPORTING (718) 624-7200 [email protected] 6 7
1 A. FRIEDMAN 2 generally? 3 A. About seven, eight years ago. 4 Q. When did 3D start working with 5 Pro Era? 6 A. I want to say maybe four years 7 ago. 8 Q. And what type of business does 9 3D do with Pro Era? 10 A. We consult for a company called 11 Cinematic Music Group, which manages 12 Pro Era and distributes their music, so 13 technically we're, we work with Pro Era 14 through our relationship of consulting 15 Cinematic. 16 Q. Understood. Would you 17 characterize your work as working with 18 Pro Era, or would you characterize your 19 work as working with Mr. Jo-Vaughn 20 Virginie? 21 A. Both -- 22 Q. Am I saying that wrong? 23 A. Both. 24 Q. Okay. We have been discussing 25 Pro Era, LLC, kind of as an entity, but my
DIAMOND REPORTING (718) 624-7200 [email protected] 7 8
1 A. FRIEDMAN 2 understanding is that Pro Era also, we can 3 use that term to refer to a collective of 4 artists; is that right? 5 A. Correct. 6 Q. And do these artists work for 7 the entity; is that the relationship? 8 A. Um, I don't, I don't know if 9 they all technically work. 10 Q. I (inaudible) -- 11 A. Yeah, we glitched again. 12 Q. I couldn't hear either of 13 those, I am sorry. 14 A. I mean, I don't know, I don't 15 know how to define, if they technically 16 work for them. They're, Pro Era is a 17 collective of artists. 18 MS. KAIGLER: Excuse me, Kim, I 19 didn't hear the question. I had a 20 glitch on my -- 21 MS. SHIMOMURA: Abbey, could 22 you read that back. 23 (Whereupon, the referred-to 24 question and answer was read back by 25 the Reporter.)
DIAMOND REPORTING (718) 624-7200 [email protected] 8 9
1 A. FRIEDMAN 2 MS. SHIMOMURA: Were you able 3 to hear that Evita? 4 MS. KAIGLER: I was, thank you. 5 Q. Mr. Friedman, it is my 6 understanding that at some point in time 7 the issue of a potential collaboration 8 between Pro Era and New Era came up; is 9 that correct? 10 A. Yes. 11 Q. About when did this come up? 12 Ballpark timeframe. 13 A. A couple of years ago. 14 Q. Maybe end of 2013, early '14; 15 does that sound about right? 16 A. Yeah. That sounds about right. 17 Q. How did you first become aware 18 of this potential collaboration? 19 A. Through a conversation with 20 Domingo Neris. I don't know if I am 21 pronouncing his last name correct. 22 Q. I don't know, so we will go 23 with that. Did you know Mr. Neris prior to 24 the potential collaboration? 25 A. Yes.
DIAMOND REPORTING (718) 624-7200 [email protected] 9 10
1 A. FRIEDMAN 2 Q. And how did you know Mr. Neris? 3 A. Through other business 4 dealings. 5 Q. What is Mr. Neris' business? 6 A. To my knowledge, he is an 7 independent marketing company, liaison 8 between, you know, brands and artists. He 9 does events, things like that. 10 Q. And I believe you said that 11 Mr. Neris approached you about the 12 potential collaboration between Pro Era and 13 New Era; is that correct? 14 A. That's correct. 15 Q. Okay. What did he propose? 16 A. Um, well, there were a few 17 layers to it, but essentially it was for a 18 performance, some collaborations together, 19 some appearances from Joey and Pro Era and 20 a few different events. 21 Q. Who was the point person, if 22 anyone, on the Pro Era side for these 23 negotiations? 24 A. I would have taken the lead on 25 it.
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1 A. FRIEDMAN 2 Q. Were there others involved on 3 the Pro Era side? 4 A. Just, maybe, initially Domingo 5 might have approached, I believe he 6 approached the DJ named Powers, who works 7 with Pro Era as a DJ, but Powers, to my 8 recollection, he would have just, you know, 9 told us about it, and that's where we would 10 step in. 11 Q. Do you know a gentleman named 12 Noah Friedman? 13 A. Yes. 14 Q. Who is he? 15 A. He works for me. He works for 16 3D. 17 Q. Okay. Does he do work on 18 behalf of Pro Era? 19 A. He works in the same capacity 20 that I do, so, yes. 21 Q. Do you know a gentleman named 22 Jonny Shipes, S-H-I-P-E-S? 23 A. Yeah, Shipes, and, yes, that's 24 -- 25 Q. Shipes?
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1 A. FRIEDMAN 2 A. Yes. I know Jonny. 3 Q. And he works with Cinematic; is 4 that right? 5 A. Yes. 6 Q. Does Mr. Shipes also work on 7 deals for Pro Era? 8 A. Yes. 9 Q. So, we touched a little bit on 10 the potential collaboration project between 11 Pro Era and New Era, and we understand that 12 Mr. Neris approached you with a potential 13 opportunity. How was that opportunity 14 received by Pro Era, initially? 15 A. They were interested in, you 16 know, in hearing more about it, and I, I 17 think that, that was probably how I 18 characterize it. 19 Q. So, it is fair to say that 20 these negotiations probably progressed 21 through various iterations; is that 22 correct? 23 A. Yes. 24 Q. Did the issue of a Pro Era 25 trademark application come up?
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1 A. FRIEDMAN 2 A. Along the negotiation it, 3 Domingo did raise it. 4 Q. So, Mr. Neris raised with you 5 the issue of a Pro Era trademark 6 application? 7 A. Well, of a New Era trademark. 8 Q. Can you describe that issue. 9 My understanding is that there was maybe a 10 disagreement between New Era and Pro Era 11 about a trademark issue; could you describe 12 that for me. 13 A. Um, I wouldn't have too much 14 detail other than, you know, along the way 15 Domingo raising it as a potential issue, 16 and at that point we would forward that to 17 Evita to address. 18 Q. Do you have an understanding of 19 what New Era's position was on this 20 trademark issue? 21 A. Not totally. 22 Q. Do you have any understanding 23 at all? 24 A. Well, I believe they were, 25 there was an issue of Pro Era versus
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1 A. FRIEDMAN 2 New Era, who had the trademark, but I 3 don't, I don't have, you know, details on 4 that, or I don't have a full understanding 5 of what the actual, you know, problem was. 6 Q. Do you have an understanding of 7 what Pro Era's position was on this issue? 8 A. In regards to? 9 Q. I am sorry, in regards to this 10 trademark issue we are talking about. 11 A. My understanding is that, that 12 they didn't think that there was any issue. 13 Q. Can you describe for me, in the 14 context of this progress of negotiations 15 for the collaboration project, can you tell 16 me when the trademark issue arose; was it 17 at the end of negotiations or early on? 18 A. It was, it was, from what I can 19 recall, it was pretty far into it. It 20 didn't come up until, until several rounds, 21 from what I recall. 22 Q. So, when the trademark issue 23 came up, would it be fair (inaudible) 24 largely agreed on most of the terms for the 25 potential collaboration deal?
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1 A. FRIEDMAN 2 THE REPORTER: I am sorry, we 3 didn't get the whole question. 4 Q. Would it be fair to say that 5 the trademark issue came up after the 6 parties had come to an agreement on the 7 majority of the terms for the collaboration 8 deal? 9 A. I, I can't recall, to say that. 10 Q. Do you know how New Era found 11 out about the Pro Era trademark 12 application? 13 A. I, no, I don't know that. 14 Q. Did Pro Era or anyone acting on 15 behalf of Pro Era bring the Pro Era 16 trademark application to New Era's 17 attention? 18 A. Um, not that I, not that I am 19 aware of, other than after it was raised 20 and we passed it on to Evita. 21 Q. After it was raised by 22 Mr. Neris; is that what you mean? 23 A. Right. We didn't, up until 24 that point, there was no conversation about 25 it.
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1 A. FRIEDMAN 2 MS. SHIMOMURA: Abbey, could 3 you hand Mr. Friedman the exhibit 4 that has been previously marked 5 Deposition Exhibit Number 5, please. 6 THE REPORTER: Sure (handing). 7 Q. Mr. Friedman, I know you looked 8 over these earlier, but I am going to ask 9 that you go ahead and look through them 10 real quick. I want to make sure you are 11 familiar with them as we ask questions 12 about them. Let me know when you are 13 ready. 14 MS. SHIMOMURA: Abbey, for the 15 record, Mr. Friedman is looking 16 through documents that have been 17 marked as Deposition Exhibit 18 Number 5, which is a package of 19 e-mails. The first e-mail is from 20 Mr. Neris to Noah Friedman, copied to 21 Drew Friedman and Jonny Shipes, dated 22 February 27, 2014. 23 A. I mean, I'm, if there is 24 specific questions, I guess, you know, I 25 don't know how, I don't want to turn this
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1 A. FRIEDMAN 2 into a study session on these. If, if I am 3 familiar with, you know, as I am reading 4 them, if, if I am familiar with the e-mails 5 that went back and forth, you know, I -- 6 Q. Okay. Sounds good -- 7 A. -- if there is something 8 specific I need to look at within here, you 9 know, let's point me to it. 10 Q. Sure. I just want to make sure 11 that you are comfortable with the exhibit 12 that you are talking about, but I would 13 like you to go to the fourth page of that 14 exhibit, it is an e-mail dated 15 January 14, 2014, it is from Mr. Neris to 16 Drew Friedman, Noah Friedman, and 17 Jonny Shipes; do you see that one? 18 A. Yes. 19 Q. I want you to read that e-mail, 20 and I am going to ask you: Does this look 21 familiar; have you seen this e-mail before? 22 A. Yes. 23 Q. Okay. Is this the first time 24 that Mr. Neris advised you of a trademark 25 issue between Pro Era and New Era?
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1 A. FRIEDMAN 2 A. Um, I, I wouldn't, I couldn't 3 say if it was the first time. I wouldn't, 4 I can't recall if this is the first time 5 that he brought it up. 6 Q. What was your understanding of 7 Mr. Neris' role in these negotiations; was 8 he acting an behalf of New Era? 9 A. Yes. 10 Q. So, under the heading "New Era 11 Deal," on Page 4 of Exhibit 5, it says: 12 "I was talking to my client 13 about the trademark issue and it seems that 14 Evita was able to postpone her trademark 15 filing till we get everything sorted. The 16 New Era legal explained the situation to 17 her which is as follows: 18 "Pro Era cannot file a 19 trademark for "Pro Era Headwear" that would 20 be in violation of New Era's trademark. 21 The easy fix as I explained to Druha via 22 phone is for her to trademark another name 23 like "Joey Badass headwear" and protect 24 your "Pro Era Headwear" line under that 25 entity."
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1 A. FRIEDMAN 2 Do you see that language, 3 Mr. Friedman? 4 A. Yes. 5 Q. Does that fairly summarize your 6 understanding of New Era's position on the 7 trademark? 8 A. Yes, as, I guess as Domingo is 9 presenting it. 10 Q. Okay. I am just trying to make 11 sure that I understand. If you have a 12 different understanding of the issue, I 13 would like to hear that. 14 A. No. I don't, I don't have 15 anything different. 16 Q. Did Pro Era consider using a 17 trademark other than Pro Era for its 18 headwear? 19 A. That, that would be out of my 20 wheelbarrow to answer. 21 Q. Is the answer, then, you don't 22 know -- 23 A. Right. I don't know. 24 Q. Okay. In that language that we 25 just read, it discusses a phone call
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1 A. FRIEDMAN 2 between Mr. Neris and Druha; is that you? 3 A. Yes. That's me. 4 Q. Do you recall that phone 5 conversation? 6 A. Not specifically. 7 Q. What is your general 8 recollection, then, of that phone call? 9 A. Domingo probably trying to get, 10 get the deal moving along. 11 Q. Did the deal between Pro Era 12 and New Era ever get signed? 13 A. Not that I am aware of, no. 14 Q. Why not? 15 A. I believe all of this got in 16 the way. 17 Q. When you say "all of this," do 18 you mean the trademark issue? 19 A. Right. 20 Q. I want you to flip back and 21 take a look at the first page of Deposition 22 Exhibit Number 5. 23 A. (witness complies). 24 Q. Is that a note from Mr. Neris 25 to Mr. Noah Friedman, CC'd to
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1 A. FRIEDMAN 2 Mr. Drew Friedman and Mr. Jonny Shipes, 3 dated February 27, 2014? 4 A. Yes. 5 Q. It starts out with the 6 language, "New Era paperwork is ready to 7 go." Mr. Friedman, does that refresh your 8 recollection about whether the parties had 9 come to an agreement as to the terms of the 10 potential collaboration deal before the 11 trademark issue arose? 12 A. Um, I don't know where this is 13 on the timeline. What was the first 14 e-mail? 15 Q. The e-mail that you and I were 16 previously discussing is the fourth page of 17 Exhibit 5 dated January 14, 2014. 18 A. Right, all right, so can you 19 repeat the question. 20 MS. SHIMOMURA: Abbey, could 21 you read that back for us. 22 (Whereupon, the referred-to 23 question was read back by the 24 Reporter.) 25 A. Yeah, I mean, I don't know if
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1 A. FRIEDMAN 2 the paperwork, Domingo writing, "Is the 3 paperwork ready to go," I don't know if 4 that represents our position, um, so I 5 couldn't, I couldn't really answer that. 6 Q. So, in reading through 7 Mr. Neris' February 27, 2014, e-mail, it 8 looks like Domingo was proposing a, quote, 9 "possible solution," end quote, that would 10 involve Pro Era withdrawing a current 11 trademark application; do you see that 12 language, Mr. Friedman? 13 A. Yes. 14 Q. Do you know whether that 15 occurred, whether Pro Era ever withdrew a 16 trademark application? 17 A. I don't know. 18 Q. Did Pro Era ever consider 19 trademarks other than Pro Era for its 20 headwear? 21 A. I wouldn't know that. 22 Q. Who would know that? 23 A. Evita. Joey. 24 Q. So, maybe Jo-Vaughn Virginie 25 may know the answer to that question?
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1 A. FRIEDMAN 2 A. Yes. 3 Q. So, we discussed the fact that 4 Pro Era and New Era never concluded a 5 collaboration deal; was it Pro Era that 6 ended those discussions, or was it New Era, 7 do you know? 8 A. Um, I don't, I don't recall. I 9 believe that we, um, I don't recall. 10 Q. Do you recall how Pro Era and 11 New Era left it? 12 A. Um, no. Other than, other than 13 Pro Era feeling that, you know, how could 14 they go forward with this deal at that 15 point. 16 Q. Okay. So, when the 17 negotiations concluded, Pro Era did not 18 leave with a positive feeling towards 19 New Era; is that fair to say? 20 A. I don't know if they, I don't 21 think they felt good about the, you know, 22 obviously what was being put forward to 23 them. 24 Q. Since the conclusion of those 25 negotiations, do you know whether Pro Era
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1 A. FRIEDMAN 2 and New Era have considered doing another 3 potential collaboration together? 4 A. I don't believe so. 5 Q. When we discussed some of the 6 potential elements of this collaboration 7 deal, we talked about appearances and 8 performances; do you recall whether Pro Era 9 and New Era actually did work together on 10 an appearance, or any appearance? 11 A. Yeah. I do believe there was 12 one appearance that took place. 13 Q. Can you describe that 14 appearance for me. 15 A. It was a performance, I believe 16 it is in some of these e-mails of, I just 17 don't recall where, I think maybe Colorado. 18 MS. SHIMOMURA: Abbey, one of 19 the exhibits that we sent down to you 20 was a document entitled, it is across 21 the top "M&S." It has a stamp on it, 22 NE01052. I am going to ask you to 23 mark that, but I need to give you the 24 exhibit number. It will be 25 Exhibit 9.
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1 A. FRIEDMAN 2 (Whereupon, the aforementioned 3 M&S agreement dated December 4, 2013, 4 between Pro Era and New Era Cap Co., 5 Bates stamps NE01052 through NE01055, 6 was marked as Friedman Exhibit 9 for 7 identification as of this date by the 8 Reporter.) 9 Q. Mr. Friedman, do you have 10 Exhibit 9 in front of you? 11 A. Yes. 12 MS. SHIMOMURA: For the record, 13 that document has a title of M&S, it 14 is an agreement dated 15 December 4, 2013, between Pro Era and 16 New Era Cap Co., and it bears Bates 17 stamps NE01052 through NE01055. 18 Q. Mr. Friedman, does this 19 agreement reference that Colorado 20 appearance you were just talking about? 21 A. Yes. 22 Q. I would like to take a look at 23 the second page of Exhibit Number 9; this 24 is an unsigned version of the contract. Do 25 you know whether this contract was ever
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1 A. FRIEDMAN 2 signed? 3 A. I don't believe so, but I 4 don't, I don't know. 5 Q. And I believe you said that 6 this appearance in Colorado by Pro Era 7 actually occurred? 8 A. I believe it did occur, yes. 9 Q. Did you accompany Pro Era on 10 this trip to Colorado? 11 A. No, I did not. 12 Q. Do you know how it went, from 13 Pro Era's perspective; was it a success? 14 A. I, I believe it went, I believe 15 it went fine. 16 Q. Were you involved in the 17 negotiation of this deal, the deal 18 referenced in Exhibit 9? 19 A. I was part of, I was part of 20 the overall deal when Domingo brought it to 21 us. I believe there was this component of 22 the appearance, so, you know, yes, I would 23 have been involved. 24 Q. I understand that there was a 25 greater potential collaboration deal that
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1 A. FRIEDMAN 2 never came to fruition, but I just wanted 3 to talk about this one piece, this Colorado 4 appearance, a little bit separately. 5 Do you recall discussions with 6 Domingo about whether members of Pro Era 7 would be permitted to wear headwear of any 8 entity other than New Era during this 9 appearance? 10 A. I don't recall. 11 MS. SHIMOMURA: Abbey, could 12 you please hand Mr. Friedman the 13 document that's been previously 14 marked as Exhibit Number 7. 15 THE REPORTER: (handing). 16 MS. SHIMOMURA: Thank you. 17 I would like the record to 18 reflect that Exhibit Number 7 is a 19 document entitled Pro Era & New Era 20 Deal Memo. It has "confidential" 21 across the top. 22 Q. Mr. Friedman, have you ever 23 seen this document before? 24 A. I believe so. 25 Q. Can you describe what it is to
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1 A. FRIEDMAN 2 me, please. 3 A. The New Era overall proposal 4 deal with Pro Era. 5 Q. Do you believe that this 6 (inaudible) the parties had agreed to? 7 A. It broke up again, I am sorry. 8 Q. I will start over. Do you know 9 if Pro Era had any objections to the terms 10 in this document? 11 A. I am sure we had comments. 12 Q. But you don't really remember 13 specifically what any of the comments were? 14 A. No. I mean, there, there would 15 be, I would imagine there would be quite a 16 few. 17 Q. Okay. And I will note that 18 this is an unsigned -- 19 A. Right. 20 Q. -- document. Do you know, 21 Mr. Friedman, whether this document was 22 early in the rounds of negotiations or 23 late? 24 A. I don't, I couldn't say what 25 round this is.
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1 A. FRIEDMAN 2 MS. SHIMOMURA: Okay. I just 3 want a minute to review my notes to 4 make sure that I asked everything I 5 need to, but, Evita, if you need to 6 cross-examine, we could go ahead with 7 that. 8 EXAMINATION BY 9 MS. KAIGLER: 10 Q. Mr. Friedman, I am going to ask 11 you a couple of questions. Could you, you 12 talked about it earlier, but could you 13 restate again your (inaudible) capacity. 14 THE REPORTER: We didn't hear 15 the whole question. 16 Q. Drew, can you tell us your 17 understanding of Domingo's capacity in the 18 New Era matter. 19 A. That he was representing 20 New Era's negotiation. 21 Q. Okay. And can you tell me 22 again your understanding of Domingo's 23 overall business. 24 A. That he is an independent 25 marketing company of, he works with brands
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1 A. FRIEDMAN 2 and, as a liaison between brands and 3 artists, and puts on events, does other 4 promotions for brands. 5 Q. To your knowledge, is Domingo 6 an attorney? 7 A. No. 8 Q. Have you ever spoken directly 9 with anyone from New Era, New Era legal 10 about the trademark matter? 11 A. I have not. 12 Q. With regards to these kinds of 13 endorsement deals, specifically the 14 Pro Era (inaudible) memo, which we just 15 referenced, I believe it was Exhibit 16 Number 7 (inaudible) -- 17 A. I am sorry, Evita, it broke up 18 again. 19 Q. So, for Exhibit 7, which is the 20 Pro Era deal memo that you just 21 referenced -- 22 A. Yes. 23 Q. -- who usually negotiates these 24 types of deal memos for Pro Era? 25 A. I would work on them initially
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1 A. FRIEDMAN 2 and then send them to yourself. 3 Q. And for Exhibit Number 9, have 4 you seen this agreement before? 5 A. I, I can't recall. There's so 6 many artists' appearance contracts we have. 7 I don't recall this specific one. 8 Q. With regard to the Colorado 9 appearance, you said that you believe that 10 Pro Era was happy with the appearance; had 11 the trademark issue been raised at this 12 point? 13 A. Not to my understanding. I'd 14 also clarify to say, I'd just say that no 15 news is good news. I didn't, I didn't, I 16 didn't hear one way or the other whether, 17 you know, there was no problems, but I 18 wouldn't necessarily categorize it as, you 19 know, as happy. 20 MS. KAIGLER: I think that's it 21 for me. 22 MS. SHIMOMURA: Just a couple 23 of follow-ups, Mr. Friedman. 24 EXAMINATION BY 25 MS. SHIMOMURA:
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1 A. FRIEDMAN 2 Q. Ms. Kaigler just asked the 3 question about whether you had been in 4 touch with anyone at New Era legal. I am 5 going to refine that question just a little 6 bit and say have you ever been in touch 7 with anyone employed directly by New Era, 8 so not a third-party, independent 9 negotiator, have you ever spoken to anyone 10 at New Era regarding a Pro Era deal? 11 A. Not to my recollection. 12 MS. SHIMOMURA: Mr. Friedman, 13 that's all of the questions that I 14 have. Evita, do you have anything 15 else? 16 MS. KAIGLER: No. That's it. 17 MS. SHIMOMURA: Thank you so 18 much, Mr. Friedman. We appreciate 19 your time this morning. 20 THE WITNESS: Thank you. 21 (Whereupon, at 11:06 A.M., the 22 Examination of this witness was 23 concluded.) 24 25 °°°°
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1 A. FRIEDMAN 2 D E C L A R A T I O N 3 4 I hereby certify that having been 5 first duly sworn to testify to the truth, I 6 gave the above testimony. 7 8 I FURTHER CERTIFY that the foregoing 9 transcript is a true and correct transcript 10 of the testimony given by me at the time 11 and place specified hereinbefore. 12 13 14 ______15 ANDREW FRIEDMAN 16 17 18 Subscribed and sworn to before me 19 this _____ day of ______20___. 20 21 ______22 NOTARY PUBLIC 23 24 25
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1 A. FRIEDMAN 2 E X H I B I T S 3 4 5 FRIEDMAN EXHIBITS 6 7 EXHIBIT EXHIBIT PAGE 8 NUMBER DESCRIPTION 9 9 M&S agreement dated 25 10 December 4, 2013, 11 between Pro Era and 12 New Era Cap Co., 13 Bates stamps 14 NE01052--NE01055 15 16 (Exhibits retained by Court Reporter.) 17 18 19 I N D E X 20 21 EXAMINATION BY PAGE 22 MS. SHIMOMURA 3,31 23 MS. KAIGLER 29 24 25
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1 A. FRIEDMAN 2 C E R T I F I C A T E 3 4 STATE OF NEW YORK ) : SS.: 5 COUNTY OF QUEENS ) 6 7 I, ABBEY MILLS-DUGAN, a Notary Public 8 for and within the State of New York, do 9 hereby certify: 10 That the witness whose examination is 11 hereinbefore set forth was duly sworn and 12 that such examination is a true record of 13 the testimony given by that witness. 14 I further certify that I am not 15 related to any of the parties to this 16 action by blood or by marriage and that I 17 am in no way interested in the outcome of 18 this matter. 19 IN WITNESS WHEREOF, I have hereunto 20 set my hand this 10th day of March 2017. 21 22 23 ______ABBEY MILLS-DUGAN 24 25
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' A ask [6] - 4:12, 16:8, 16:11, can you [8] - 13:8, 14:13, 17:20, 24:22, 29:10 14:15, 21:18, 24:13, 27:25, '14 [1] - 9:14 A.M [2] - 1:13, 32:21 asked [2] - 29:4, 32:2 29:16, 29:21 ABBEY [2] - 35:7, 35:23 asking [1] - 3:18 can't [4] - 3:19, 15:9, 18:4, 1 Abbey [10] - 1:22, 4:5, 4:6, Atlanta [1] - 2:12 31:5 4:14, 8:21, 16:2, 16:14, attention [1] - 15:17 cannot [1] - 18:18 10012 [1] - 3:13 21:20, 24:18, 27:11 attorney [1] - 30:6 Cap [3] - 25:4, 25:16, 34:12 10038 [1] - 1:22 able [2] - 9:2, 18:14 Attorneys [2] - 2:4, 2:10 CAP [2] - 1:3, 2:5 10:19 [1] - 1:13 above [1] - 33:6 aware [3] - 9:17, 15:19, capacity [3] - 11:19, 29:13, 10th [1] - 35:20 accommodate [1] - 3:25 20:13 29:17 11:06 [1] - 32:21 accompany [1] - 26:9 categorize [1] - 31:18 13th [1] - 1:21 across [2] - 24:20, 27:21 CC'd [1] - 20:25 14 [2] - 17:15, 21:17 B acting [2] - 15:14, 18:8 certify [3] - 33:4, 35:9, 35:14 1440 [1] - 2:11 back [7] - 3:23, 8:22, 8:24, action [1] - 35:16 CERTIFY [1] - 33:8 14604 [1] - 2:6 17:5, 20:20, 21:21, 21:23 actual [1] - 14:5 characterize [3] - 7:17, 7:18, 150 [1] - 1:21 bad [1] - 4:15 address [2] - 3:11, 13:17 12:18 160 [1] - 2:11 Badass [1] - 18:23 advised [1] - 17:24 Cinematic [3] - 7:11, 7:15, 1600 [1] - 2:5 aforementioned [1] - 25:2 ballpark [1] - 9:12 12:3 Bates [3] - 25:5, 25:16, 34:13 after [3] - 15:5, 15:19, 15:21 Civil [1] - 1:19 Bausch [1] - 2:5 2 again [5] - 8:11, 28:7, 29:13, clarify [1] - 31:14 bears [1] - 25:16 2013 [4] - 9:14, 25:3, 25:15, 29:22, 30:18 client [1] - 18:12 BEFORE [1] - 1:2 34:10 against [1] - 1:6 CO [2] - 1:3, 2:5 before [11] - 1:22, 4:3, 4:11, 2014 [5] - 16:22, 17:15, 21:3, ago [3] - 7:3, 7:7, 9:13 Co [3] - 25:4, 25:16, 34:12 4:13, 5:19, 5:24, 17:21, 21:17, 22:7 agreed [2] - 14:24, 28:6 collaboration [13] - 9:7, 21:10, 27:23, 31:4, 33:18 2017 [2] - 1:12, 35:20 agreement [7] - 15:6, 21:9, 9:18, 9:24, 10:12, 12:10, behalf [6] - 4:20, 6:8, 6:9, 20___ [1] - 33:19 25:3, 25:14, 25:19, 31:4, 14:15, 14:25, 15:7, 21:10, 11:18, 15:15, 18:8 25 [1] - 34:9 34:9 23:5, 24:3, 24:6, 26:25 believe [18] - 10:10, 11:5, 250 [1] - 3:12 ahead [2] - 16:9, 29:6 collaborations [1] - 10:18 13:24, 20:15, 23:9, 24:4, 27 [3] - 16:22, 21:3, 22:7 along [3] - 13:2, 13:14, 20:10 collective [2] - 8:3, 8:17 24:11, 24:15, 26:3, 26:5, 28 [1] - 1:12 AND [2] - 1:2, 1:2 Colorado [6] - 24:17, 25:19, 26:8, 26:14, 26:21, 27:24, 29 [1] - 34:23 Andrew [1] - 3:10 26:6, 26:10, 27:3, 31:8 28:5, 30:15, 31:9 ANDREW [2] - 1:17, 33:15 comfortable [1] - 17:11 best [1] - 4:9 another [2] - 18:22, 24:2 comments [2] - 28:11, 28:13 3 between [12] - 9:8, 10:8, answer [7] - 4:2, 4:13, 8:24, company [4] - 6:20, 7:10, 10:12, 12:10, 13:10, 17:25, 3,31 [1] - 34:22 19:20, 19:21, 22:5, 22:25 10:7, 29:25 20:2, 20:11, 25:4, 25:15, 30324 [1] - 2:12 answers [1] - 4:10 completely [1] - 4:10 30:2, 34:11 3D [10] - 6:6, 6:9, 6:12, 6:15, anyone [7] - 5:3, 10:22, complies) [1] - 20:23 bit [3] - 12:9, 27:4, 32:6 6:18, 6:23, 6:25, 7:4, 7:9, 15:14, 30:9, 32:4, 32:7, component [1] - 26:21 blood [1] - 35:16 11:16 32:9 concluded [3] - 23:4, 23:17, BOARD [1] - 1:2 anything [3] - 4:22, 19:15, 32:23 both [3] - 6:8, 7:21, 7:23 4 32:14 conclusion [1] - 23:24 brands [4] - 10:8, 29:25, APPEAL [1] - 1:2 confidential [1] - 27:20 4 [4] - 18:11, 25:3, 25:15, 30:2, 30:4 appearance [12] - 24:10, consider [2] - 19:16, 22:18 34:10 break [2] - 3:24, 4:3 24:12, 24:14, 25:20, 26:6, considered [1] - 24:2 bring [1] - 15:15 26:22, 27:4, 27:9, 31:6, consult [1] - 7:10 5 Broadway [1] - 1:21 31:9, 31:10 consulting [3] - 6:6, 6:20, broke [2] - 28:7, 30:17 5 [3] - 16:5, 16:18, 20:22 appearances [2] - 10:19, 7:14 brought [2] - 18:5, 26:20 24:7 context [1] - 14:14 business [7] - 6:5, 6:18, 7 APPLICANT [1] - 1:10 contract [2] - 25:24, 25:25 6:21, 7:8, 10:3, 10:5, 29:23 Applicant [2] - 1:16, 2:10 contracts [1] - 31:6 7 [3] - 27:14, 27:18, 30:16 businesses [1] - 6:14 application [6] - 12:25, 13:6, conversation [3] - 9:19, BY [6] - 2:6, 2:12, 3:6, 29:8, 15:12, 15:16, 22:11, 22:16 15:24, 20:5 31:24, 34:21 8 Application [1] - 1:7 copied [1] - 16:20 appreciate [1] - 32:18 85/711,680 [1] - 1:8 correct [8] - 6:17, 8:5, 9:9, approached [4] - 10:11, C 9:21, 10:13, 10:14, 12:22, 11:5, 11:6, 12:12 9 call [2] - 19:25, 20:8 33:9 arose [2] - 14:16, 21:11 called [3] - 3:2, 6:5, 7:10 COUNTY [1] - 35:5 9 [3] - 25:23, 31:3, 34:9 artists [5] - 8:4, 8:6, 8:17, came [4] - 9:8, 14:23, 15:5, couple [3] - 9:13, 29:11, 91216455 [1] - 1:6 10:8, 30:3 27:2 31:22 artists' [1] - 31:6
DIAMOND REPORTING (877) 624-3287 [email protected] 36 37 A. FRIEDMAN
court [1] - 4:5 documents [2] - 5:16, 16:16 25:4, 25:15, 25:16, 26:6, 17:23, 18:3, 18:4, 20:21, Court [1] - 34:16 does he [1] - 11:17 26:9, 27:6, 27:8, 27:19, 21:13, 33:5 cross [1] - 29:6 does that [3] - 9:15, 19:5, 28:3, 28:4, 28:9, 29:18, fix [1] - 18:21 cross-examine [1] - 29:6 21:7 30:9, 30:14, 30:20, 30:24, flip [1] - 20:20 current [1] - 22:10 does this [2] - 17:20, 25:18 31:10, 32:4, 32:7, 32:10, Floor [1] - 1:21 currently [1] - 6:3 doesn't [1] - 4:14 34:11, 34:12 follow [1] - 31:23 Domingo [11] - 9:20, 11:4, Era's [7] - 13:19, 14:7, 15:16, follow-ups [1] - 31:23 D 13:3, 13:15, 19:8, 20:9, 18:20, 19:6, 26:13, 29:20 follows [2] - 3:5, 18:17 22:2, 22:8, 26:20, 27:6, ESQ [4] - 2:6, 2:7, 2:10, 2:12 foregoing [1] - 33:8 DATE [1] - 1:12 30:5 essentially [1] - 10:17 forth [2] - 17:5, 35:11 date [1] - 25:7 Domingo's [2] - 29:17, 29:22 events [3] - 10:9, 10:20, 30:3 forward [3] - 13:16, 23:14, dated [7] - 16:21, 17:14, down [2] - 4:6, 24:19 everything [3] - 4:6, 18:15, 23:22 21:3, 21:17, 25:3, 25:14, Down [2] - 6:5, 6:11 29:4 found [1] - 15:10 34:9 Drew [4] - 16:21, 17:16, 21:2, Evita [8] - 9:3, 13:17, 15:20, four [2] - 5:22, 7:6 day [4] - 4:8, 4:15, 33:19, 29:16 18:14, 22:23, 29:5, 30:17, fourth [2] - 17:13, 21:16 35:20 Druha [2] - 18:21, 20:2 32:14 Friedman [29] - 3:10, 3:14, Deal [2] - 18:11, 27:20 Duck [2] - 6:5, 6:11 EVITA [2] - 2:10, 2:12 5:11, 5:19, 6:2, 9:5, 11:12, deal [16] - 14:25, 15:8, 20:10, Dugan [1] - 1:22 Examination [1] - 32:22 16:3, 16:7, 16:15, 16:20, 20:11, 21:10, 23:5, 23:14, DUGAN [2] - 35:7, 35:23 EXAMINATION [4] - 3:6, 16:21, 17:16, 19:3, 20:25, 24:7, 26:17, 26:20, 26:25, duly [3] - 3:3, 33:5, 35:11 29:8, 31:24, 34:21 21:2, 21:7, 22:12, 25:6, 28:4, 30:20, 30:24, 32:10 Dutch [1] - 2:11 examination [2] - 35:10, 25:9, 25:18, 27:12, 27:22, dealings [1] - 10:4 35:12 28:21, 29:10, 31:23, 32:12, deals [2] - 12:7, 30:13 E examine [1] - 29:6 32:18 December [3] - 25:3, 25:15, examined [1] - 3:5 FRIEDMAN [3] - 1:17, 33:15, 34:10 e-mail [7] - 16:19, 17:14, excuse [1] - 8:18 34:5 define [1] - 8:15 17:19, 17:21, 21:14, 21:15, exhibit [4] - 16:3, 17:11, front [1] - 25:10 Deposition [3] - 16:5, 16:17, 22:7 17:14, 24:24 fruition [1] - 27:2 20:21 e-mails [7] - 5:2, 5:5, 5:8, EXHIBIT [2] - 34:7 full [1] - 14:4 DEPOSITION [1] - 1:15 5:11, 16:19, 17:4, 24:16 Exhibit [8] - 16:5, 16:17, FURTHER [1] - 33:8 deposition [1] - 5:9 earlier [2] - 16:8, 29:12 20:22, 25:23, 27:14, 27:18, further [1] - 35:14 describe [5] - 13:8, 13:11, early [3] - 9:14, 14:17, 28:22 30:15, 31:3 14:13, 24:13, 27:25 [1] easy - 18:21 Exhibit 5 [2] - 18:11, 21:17 G DESCRIPTION [1] - 34:8 eight [1] - 7:3 Exhibit 7 [1] - 30:19 gave [1] - 33:6 detail [1] - 13:14 elements [1] - 24:6 Exhibit 9 [4] - 24:25, 25:6, details [1] - 14:3 EMERY [1] - 2:4 25:10, 26:18 general [1] - 20:7 Diamond [1] - 1:20 employed [3] - 6:3, 6:4, 32:7 exhibits [2] - 5:13, 24:19 generally [1] - 7:2 did you [8] - 4:22, 5:3, 5:5, end [3] - 9:14, 14:17, 22:9 EXHIBITS [1] - 34:5 gentleman [2] - 11:11, 11:21 5:15, 6:7, 6:22, 9:23, 26:9 ended [1] - 23:6 Exhibits [1] - 34:16 Georgia [1] - 2:12 different [3] - 10:20, 19:12, endorsement [1] - 30:13 explained [2] - 18:16, 18:21 give [1] - 24:23 19:15 entities [1] - 6:8 given [3] - 5:18, 33:10, 35:13 directly [2] - 30:8, 32:7 entitled [2] - 24:20, 27:19 F giving [1] - 4:19 disagreement [1] - 13:10 entity [6] - 4:20, 6:15, 7:25, glitch [1] - 8:20 discovery [1] - 5:6 8:7, 18:25, 27:8 fact [1] - 23:3 glitched [1] - 8:11 discussed [2] - 23:3, 24:5 ERA [5] - 1:3, 1:9, 1:16, 2:5, fair [4] - 12:19, 14:23, 15:4, good [4] - 3:14, 17:6, 23:21, discusses [1] - 19:25 2:11 23:19 31:15 discussing [2] - 7:24, 21:16 Era [93] - 4:20, 5:24, 6:7, fairly [1] - 19:5 got [1] - 20:15 discussions [2] - 23:6, 27:5 6:16, 7:5, 7:9, 7:12, 7:13, familiar [4] - 16:11, 17:3, greater [1] - 26:25 distributes [1] - 7:12 7:18, 7:25, 8:2, 8:16, 9:8, 17:4, 17:21 Group [1] - 7:11 distribution [1] - 6:20 10:12, 10:13, 10:19, 10:22, far [1] - 14:19 guess [2] - 16:24, 19:8 DJ [2] - 11:6, 11:7 11:3, 11:7, 11:18, 12:7, February [4] - 1:12, 16:22, do you [25] - 5:6, 11:11, 12:11, 12:14, 12:24, 13:5, 21:3, 22:7 H 11:21, 13:18, 13:22, 14:6, 13:7, 13:10, 13:25, 14:2, Federal [1] - 1:19 hand [3] - 16:3, 27:12, 35:20 15:10, 17:17, 19:2, 20:4, 15:10, 15:11, 15:14, 15:15, feeling [2] - 23:13, 23:18 20:17, 22:11, 22:14, 23:7, 17:25, 18:8, 18:10, 18:16, felt [1] - 23:21 handing) [2] - 16:6, 27:15 23:10, 23:25, 24:8, 25:9, 18:18, 18:19, 18:24, 19:16, few [3] - 10:16, 10:20, 28:16 happy [2] - 31:10, 31:19 25:24, 26:12, 27:5, 28:5, 19:17, 20:11, 20:12, 21:6, file [1] - 18:18 HARTER [1] - 2:4 28:8, 28:20, 32:14 22:10, 22:15, 22:18, 22:19, filing [1] - 18:15 Harter [1] - 3:15 [9] document [8] - 24:20, 25:13, 23:4, 23:5, 23:6, 23:10, fine [1] - 26:15 have you - 5:18, 5:23, 27:13, 27:19, 27:23, 28:10, 23:11, 23:13, 23:17, 23:19, finish [2] - 4:10, 4:12 14:3, 17:21, 27:22, 30:8, 28:20, 28:21 23:25, 24:2, 24:8, 24:9, first [9] - 3:3, 9:17, 16:19, 31:3, 32:6, 32:9
DIAMOND REPORTING (877) 624-3287 [email protected] 37 38 A. FRIEDMAN
heading [1] - 18:10 K majority [1] - 15:7 29:5 Headwear [2] - 18:19, 18:24 manages [1] - 7:11 negotiates [1] - 30:23 headwear [4] - 18:23, 19:18, Kaigler [2] - 5:12, 32:2 March [1] - 35:20 negotiation [3] - 13:2, 26:17, 22:20, 27:7 KAIGLER [9] - 2:10, 2:12, mark [1] - 24:23 29:20 hear [7] - 3:20, 8:12, 8:19, 5:7, 8:18, 9:4, 29:9, 31:20, marked [4] - 16:4, 16:17, negotiations [8] - 10:23, 9:3, 19:13, 29:14, 31:16 32:16, 34:23 25:6, 27:14 12:20, 14:14, 14:17, 18:7, hearing [1] - 12:16 KATHERINE [1] - 2:7 MARKERT [1] - 2:7 23:17, 23:25, 28:22 held [1] - 1:19 Kim [2] - 3:15, 8:18 marketing [4] - 6:6, 6:19, negotiator [1] - 32:9 hereby [2] - 33:4, 35:9 KIMBERLY [1] - 2:6 10:7, 29:25 Neris [12] - 9:20, 9:23, 10:2, hereinbefore [2] - 33:11, kinds [1] - 30:12 marriage [1] - 35:16 10:11, 12:12, 13:4, 15:22, 35:11 know [51] - 3:21, 3:25, 5:6, matter [3] - 29:18, 30:10, 16:20, 17:15, 17:24, 20:2, hereunto [1] - 35:19 8:8, 8:14, 8:15, 9:20, 9:22, 35:18 20:24 hopefully [1] - 4:14 9:23, 10:2, 10:8, 11:8, mean [6] - 8:14, 15:22, Neris' [3] - 10:5, 18:7, 22:7 how did [2] - 9:17, 10:2 11:11, 11:21, 12:2, 12:16, 16:23, 20:18, 21:25, 28:14 never [2] - 23:4, 27:2 13:14, 14:3, 14:5, 15:10, how many [1] - 5:21 members [1] - 27:6 NEW [3] - 1:3, 2:5, 35:4 15:13, 16:7, 16:12, 16:24, Memo [1] - 27:20 news [2] - 31:15 16:25, 17:3, 17:5, 17:9, I memo [2] - 30:14, 30:20 next [1] - 4:11 19:22, 19:23, 21:12, 21:25, memos [1] - 30:24 Noah [4] - 11:12, 16:20, I'd [2] - 31:13, 31:14 22:3, 22:14, 22:17, 22:21, Mercer [1] - 3:12 17:16, 20:25 identification [1] - 25:7 22:22, 22:25, 23:7, 23:13, Mills [1] - 1:22 Northeast [1] - 2:11 imagine [1] - 28:15 23:20, 23:21, 23:25, 25:25, MILLS [2] - 35:7, 35:23 NOTARY [1] - 33:22 IN [2] - 1:2, 35:19 26:4, 26:12, 26:22, 28:8, Mills-Dugan [1] - 1:22 Notary [3] - 1:23, 3:4, 35:7 inaudible [7] - 3:20, 8:10, 28:20, 31:17, 31:19 MILLS-DUGAN [2] - 35:7, note [2] - 20:24, 28:17 14:23, 28:6, 29:13, 30:14, knowledge [2] - 10:6, 30:5 35:23 notes [1] - 29:3 30:16 minute [1] - 29:3 notice [1] - 4:4 INC [2] - 1:3, 2:5 L morning [3] - 3:14, 3:17, Number [8] - 16:5, 16:18, Inc [1] - 1:20 language [4] - 19:2, 19:24, 32:19 20:22, 25:23, 27:14, 27:18, included [1] - 5:8 21:6, 22:12 moving [1] - 20:10 30:16, 31:3 independent [3] - 10:7, largely [1] - 14:24 Mr [39] - 3:14, 5:11, 5:19, 6:2, number [2] - 3:19, 24:24 29:24, 32:8 last [1] - 9:21 7:19, 9:5, 9:23, 10:2, 10:5, NUMBER [1] - 34:8 information [1] - 5:9 late [1] - 28:23 10:11, 12:6, 12:12, 13:4, initially [3] - 11:4, 12:14, LAW [1] - 2:10 15:22, 16:3, 16:7, 16:15, O 30:25 layers [1] - 10:17 16:20, 17:15, 17:24, 18:7, interested [2] - 12:15, 35:17 objections [1] - 28:9 lead [1] - 10:24 19:3, 20:2, 20:24, 20:25, involve [1] - 22:10 obviously [1] - 23:22 leave [1] - 23:18 21:2, 21:7, 22:7, 22:12, involved [3] - 11:2, 26:16, 25:9, 25:18, 27:12, 27:22, occur [1] - 26:8 left [1] - 23:11 26:23 28:21, 29:10, 31:23, 32:12, occurred [2] - 22:15, 26:7 legal [3] - 18:16, 30:9, 32:4 is it your [1] - 4:18 32:18 OF [3] - 2:10, 35:4, 35:5 let's [1] - 17:9 is that [13] - 8:2, 8:4, 8:7, Ms [2] - 5:12, 32:2 OFFICE [1] - 1:2 liaison [2] - 10:7, 30:2 9:8, 10:13, 12:3, 12:21, MS [24] - 3:7, 5:7, 5:10, 8:18, OFFICES [1] - 2:10 line [1] - 18:24 13:9, 14:11, 15:22, 20:2, 8:21, 9:2, 9:4, 16:2, 16:14, offices [1] - 1:20 little [3] - 12:9, 27:4, 32:5 20:24, 23:19 21:20, 24:18, 25:12, 27:11, okay [13] - 5:10, 5:23, 7:24, LLC [5] - 1:9, 1:16, 2:11, is this [1] - 17:23 27:16, 29:2, 29:9, 31:20, 10:15, 11:17, 17:6, 17:23, 4:20, 7:25 issue [20] - 9:7, 12:24, 13:5, 31:22, 31:25, 32:12, 32:16, 19:10, 19:24, 23:16, 28:17, LLP [1] - 2:4 13:8, 13:11, 13:15, 13:20, 32:17, 34:22, 34:23 29:2, 29:21 Lomb [1] - 2:5 13:25, 14:7, 14:10, 14:12, Music [2] - 6:5, 7:11 ones [1] - 5:13 look [5] - 16:9, 17:8, 17:20, 14:16, 14:22, 15:5, 17:25, music [2] - 6:21, 7:12 opportunity [2] - 12:13 20:21, 25:22 18:13, 19:12, 20:18, 21:11, OPPOSER [1] - 1:4 looked [1] - 16:7 31:11 Opposer [1] - 2:4 looking [1] - 16:15 N iterations [1] - 12:21 Opposition [1] - 1:6 looks [1] - 22:8 name [4] - 3:8, 3:15, 9:21, Order [1] - 1:18 J 18:22 others [1] - 11:2 M named [4] - 4:20, 11:6, ourselves [1] - 6:10 January [2] - 17:15, 21:17 11:11, 11:21 M&S [4] - 24:21, 25:3, 25:13, outcome [1] - 35:17 Jo [2] - 7:19, 22:24 NE01052 [4] - 24:22, 25:5, 34:9 overall [3] - 26:20, 28:3, Jo-Vaughn [2] - 7:19, 22:24 25:17, 34:14 mail [7] - 16:19, 17:14, 29:23 Joey [3] - 10:19, 18:23, 22:23 NE01055 [3] - 25:5, 25:17, 17:19, 17:21, 21:14, 21:15, owner [1] - 6:22 Jonny [5] - 11:22, 12:2, 34:14 22:7 16:21, 17:17, 21:2 necessarily [1] - 31:18 mails [7] - 5:2, 5:5, 5:8, 5:11, need [5] - 3:24, 17:8, 24:23, 16:19, 17:4, 24:16
DIAMOND REPORTING (877) 624-3287 [email protected] 38 39 A. FRIEDMAN
P 23:4, 23:5, 23:10, 23:13, 30:15, 30:21 SHIMOMURA [18] - 2:6, 3:7, 23:17, 23:25, 24:8, 25:4, referred [2] - 8:23, 21:22 5:10, 8:21, 9:2, 16:2, package [2] - 5:12, 16:18 25:15, 26:6, 26:9, 26:13, referred-to [2] - 8:23, 21:22 16:14, 21:20, 24:18, 25:12, packet [1] - 5:17 27:6, 27:19, 28:4, 28:9, refine [1] - 32:5 27:11, 27:16, 29:2, 31:22, PAGE [2] - 34:7, 34:21 30:14, 30:20, 30:24, 31:10, reflect [1] - 27:18 31:25, 32:12, 32:17, 34:22 page [4] - 17:13, 20:21, 32:10, 34:11 refresh [1] - 21:7 Shimomura [1] - 3:15 21:16, 25:23 probably [3] - 12:17, 12:20, regard [1] - 31:8 Shipes [7] - 11:22, 11:23, Page [1] - 18:11 20:9 regarding [1] - 32:10 11:25, 12:6, 16:21, 17:17, paperwork [3] - 21:6, 22:2, problem [1] - 14:5 regards [3] - 14:8, 14:9, 21:2 22:3 problems [1] - 31:17 30:12 SHIPES [1] - 11:22 part [2] - 26:19 Procedure [1] - 1:19 related [1] - 35:15 side [2] - 10:22, 11:3 parties [5] - 1:18, 15:6, 21:8, progress [1] - 14:14 relation [1] - 5:24 signed [2] - 20:12, 26:2 28:6, 35:15 progressed [1] - 12:20 relationship [2] - 7:14, 8:7 situation [1] - 18:16 party [1] - 32:8 project [2] - 12:10, 14:15 remember [1] - 28:12 solution [1] - 22:9 passed [1] - 15:20 promotions [1] - 30:4 repeat [1] - 21:19 something [1] - 17:7 PATENT [1] - 1:2 pronouncing [1] - 9:21 rephrase [1] - 3:22 sorry [6] - 6:11, 8:13, 14:9, performance [2] - 10:18, proposal [1] - 28:3 Reporter [4] - 8:25, 21:24, 15:2, 28:7, 30:17 24:15 propose [1] - 10:15 25:8, 34:16 sorted [1] - 18:15 performances [1] - 24:8 proposing [1] - 22:8 REPORTER [4] - 15:2, 16:6, sound [1] - 9:15 permitted [1] - 27:7 protect [1] - 18:23 27:15, 29:14 sounds [2] - 9:16, 17:6 person [1] - 10:21 provided [1] - 5:6 reporter [1] - 4:6 specific [3] - 16:24, 17:8, perspective [1] - 26:13 PUBLIC [1] - 33:22 Reporting [1] - 1:20 31:7 phone [4] - 18:22, 19:25, Public [3] - 1:23, 3:4, 35:7 represent [1] - 6:10 specifically [3] - 20:6, 28:13, 20:4, 20:8 pursuant [1] - 1:18 representing [1] - 29:19 30:13 piece [1] - 27:3 puts [1] - 30:3 represents [1] - 22:4 specified [1] - 33:11 place [2] - 24:12, 33:11 respective [1] - 1:17 spoken [2] - 30:8, 32:9 Place [2] - 2:5, 2:11 Q restate [1] - 29:13 SS [1] - 35:4 please [4] - 3:21, 16:5, retained [1] - 34:16 stamp [1] - 24:21 QUEENS [1] - 35:5 27:12, 28:2 review [3] - 5:5, 5:15, 29:3 stamps [3] - 25:5, 25:17, [1] question [13] - 3:21, 4:2, Please - 3:8 reviewed [2] - 5:2, 5:13 34:13 [7] 4:11, 4:13, 8:19, 8:24, point - 9:6, 10:21, 13:16, right [10] - 8:4, 9:15, 9:16, start [5] - 4:11, 4:13, 6:25, 15:3, 21:19, 21:23, 22:25, 15:24, 17:9, 23:15, 31:12 12:4, 15:23, 19:23, 20:19, 7:4, 28:8 29:15, 32:3, 32:5 position [4] - 13:19, 14:7, 21:18, 28:19 starts [1] - 21:5 questions [5] - 3:19, 16:11, 19:6, 22:4 Rochester [1] - 2:6 State [3] - 1:23, 3:4, 35:8 [1] 16:24, 29:11, 32:13 positive - 23:18 role [1] - 18:7 STATE [1] - 35:4 [1] quick [1] - 16:10 possible - 22:9 rough [1] - 4:8 state [1] - 3:8 [1] quote [2] - 22:8, 22:9 postpone - 18:14 round [1] - 28:25 STATES [1] - 1:2 [12] potential - 9:7, 9:18, rounds [2] - 14:20, 28:22 step [1] - 11:10 9:24, 10:12, 12:10, 12:12, R Rules [1] - 1:19 Street [1] - 3:12 13:15, 14:25, 21:10, 24:3, raise [1] - 13:3 study [1] - 17:2 24:6, 26:25 raised [4] - 13:4, 15:19, S Subscribed [1] - 33:18 Powers [2] - 11:6, 11:7 15:21, 31:11 success [1] - 26:13 prepare [2] - 4:22, 5:16 same [3] - 4:8, 6:12, 11:19 raising [1] - 13:15 Suite [1] - 2:11 presenting [1] - 19:9 saying [1] - 7:22 read [7] - 3:22, 8:22, 8:24, summarize [1] - 19:5 second [1] - 25:23 pretty [1] - 14:19 17:19, 19:25, 21:21, 21:23 sure [7] - 16:6, 16:10, 17:10, previously [3] - 16:4, 21:16, SECREST [1] - 2:4 reading [2] - 17:3, 22:6 19:11, 28:11, 29:4 27:13 Secrest [1] - 3:16 real [1] - 16:10 sworn [4] - 3:3, 33:5, 33:18, primarily [1] - 6:21 seems [1] - 18:13 recall [14] - 14:19, 14:21, 35:11 [1] seen [3] - 17:21, 27:23, 31:4 prior - 9:23 15:9, 18:4, 20:4, 23:8, PRO [3] - 1:9, 1:16, 2:11 23:9, 23:10, 24:8, 24:17, self [1] - 6:4 T Pro [64] - 4:20, 5:24, 6:7, 27:5, 27:10, 31:5, 31:7 self-employed [1] - 6:4 6:16, 7:5, 7:9, 7:12, 7:13, send [1] - 31:2 table [1] - 4:3 received [1] - 12:14 7:18, 7:25, 8:2, 8:16, 9:8, sent [3] - 5:7, 5:12, 24:19 take [4] - 3:16, 4:3, 20:21, recollection [4] - 11:8, 20:8, 25:22 10:12, 10:19, 10:22, 11:3, 21:8, 32:11 separate [1] - 6:13 11:7, 11:18, 12:7, 12:11, [1] taken [2] - 1:17, 10:24 record [5] - 3:9, 16:15, separately - 27:4 taking [1] - 4:6 12:14, 12:24, 13:5, 13:10, 25:12, 27:17, 35:12 Serial [1] - 1:7 13:25, 14:7, 15:11, 15:14, talk [3] - 4:8, 5:3, 27:3 refer [1] - 8:3 session [1] - 17:2 15:15, 17:25, 18:18, 18:19, talked [2] - 24:7, 29:12 reference [1] - 25:19 seven [1] - 7:3 18:24, 19:16, 19:17, 20:11, talking [4] - 14:10, 17:12, referenced [3] - 26:18, several [1] - 14:20 22:10, 22:15, 22:18, 22:19, she's [1] - 4:7 18:12, 25:20
DIAMOND REPORTING (877) 624-3287 [email protected] 39 40 A. FRIEDMAN
technically [3] - 7:13, 8:9, turn [1] - 16:25 25:2, 32:21 8:15 type [1] - 7:8 who is [2] - 4:5, 11:14 tell [3] - 14:15, 29:16, 29:21 types [1] - 30:24 who was [1] - 10:21 term [1] - 8:3 whole [2] - 15:3, 29:15 terms [4] - 14:24, 15:7, 21:9, U why [1] - 20:14 28:9 withdrawing [1] - 22:10 um [10] - 8:8, 10:16, 13:13, testified [2] - 3:5, 5:23 withdrew [1] - 22:15 15:18, 18:2, 21:12, 22:4, testify [1] - 33:5 within [2] - 17:8, 35:8 23:8, 23:9, 23:12 testimony [8] - 3:17, 4:19, witness [6] - 1:16, 3:3, under [2] - 18:10, 18:24 4:23, 5:16, 5:19, 33:6, 20:23, 32:22, 35:10, 35:13 understand [4] - 3:21, 12:11, 33:10, 35:13 WITNESS [2] - 32:20, 35:19 19:11, 26:24 thank [5] - 5:18, 9:4, 27:16, work [11] - 6:7, 7:13, 7:17, understanding [15] - 4:18, 32:17, 32:20 7:19, 8:6, 8:9, 8:16, 11:17, 8:2, 9:6, 13:9, 13:18, THE [7] - 1:2, 1:2, 15:2, 16:6, 12:6, 24:9, 30:25 13:22, 14:4, 14:6, 14:11, 27:15, 29:14, 32:20 worked [1] - 6:16 18:6, 19:6, 19:12, 29:17, there's [1] - 31:5 working [3] - 7:4, 7:17, 7:19 29:22, 31:13 they're [1] - 8:16 works [6] - 11:6, 11:15, understood [1] - 7:16 things [1] - 10:9 11:19, 12:3, 29:25 UNITED [1] - 1:2 think [5] - 12:17, 14:12, wouldn't [5] - 13:13, 18:2, unsigned [2] - 25:24, 28:18 23:21, 24:17, 31:20 18:3, 22:21, 31:18 ups [1] - 31:23 third [1] - 32:8 writing [1] - 22:2 usually [1] - 30:23 third-party [1] - 32:8 wrong [1] - 7:22 three [1] - 5:22 V through [10] - 6:15, 7:14, Y 9:19, 10:3, 12:21, 16:9, Valley [1] - 2:11 yeah [5] - 8:11, 9:16, 11:23, 16:16, 22:6, 25:5, 25:17 various [1] - 12:21 21:25, 24:11 till [1] - 18:15 Vaughn [2] - 7:19, 22:24 years [3] - 7:3, 7:6, 9:13 time [8] - 3:25, 4:9, 9:6, version [1] - 25:24 yes [28] - 4:17, 4:21, 5:14, 17:23, 18:3, 18:4, 32:19, versus [1] - 13:25 5:20, 6:24, 9:10, 9:25, 33:10 via [3] - 2:8, 2:13, 18:21 11:13, 11:20, 11:23, 12:2, TIME [1] - 1:13 videoconference [2] - 2:8, 12:5, 12:8, 12:23, 17:18, timeframe [1] - 9:12 2:13 17:22, 18:9, 19:4, 19:8, timeline [1] - 21:13 VIDEOCONFERENCED [1] - 20:3, 21:4, 22:13, 23:2, times [1] - 5:21 1:15 25:11, 25:21, 26:8, 26:22, title [1] - 25:13 violation [1] - 18:20 30:22 today [3] - 3:19, 4:5, 4:19 [2] Virginie - 7:20, 22:24 York [8] - 1:21, 1:22, 1:23, today's [2] - 4:23, 5:16 2:6, 3:4, 3:12, 3:13, 35:8 together [3] - 10:18, 24:3, W YORK [1] - 35:4 24:9 yourself [1] - 31:2 totally [1] - 13:21 want [7] - 7:6, 16:10, 16:25, touch [2] - 32:4, 32:6 17:10, 17:19, 20:20, 29:3 touched [1] - 12:9 wanted [1] - 27:2 ° [1] towards [1] - 23:18 was he - 18:7 ° [4] - 32:25 TRADEMARK [2] - 1:2, 1:2 was it [5] - 14:16, 14:18, trademark [26] - 12:25, 13:5, 23:5, 23:6, 26:13 13:7, 13:11, 13:20, 14:2, was that [1] - 12:13 14:10, 14:16, 14:22, 15:5, we're [1] - 7:13 15:11, 15:16, 17:24, 18:13, wear [1] - 27:7 18:14, 18:19, 18:20, 18:22, were you [2] - 9:2, 26:16 19:7, 19:17, 20:18, 21:11, what did [2] - 4:25, 10:15 22:11, 22:16, 30:10, 31:11 What is [4] - 3:11, 6:18, 10:5, trademarks [1] - 22:19 20:7 transcript [2] - 33:9 what was [4] - 5:17, 18:6, TRIAL [1] - 1:2 21:13, 23:22 trip [1] - 26:10 wheelbarrow [1] - 19:20 true [2] - 33:9, 35:12 when did [3] - 6:25, 7:4, 9:11 truth [1] - 33:5 when you [2] - 16:12, 20:17 try [1] - 4:12 where are [1] - 6:2 trying [2] - 19:10, 20:9 WHEREOF [1] - 35:19 Whereupon [4] - 8:23, 21:22,
DIAMOND REPORTING (877) 624-3287 [email protected] 40