ESTTA Tracking number: ESTTA1003964 09/23/2019

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ESTTA Tracking number: ESTTA1003964

Filing date: 09/23/2019

IN THE UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD

Proceeding 91243944

Party PlaintiffMonster Energy Company

CorrespondenceAddress

ALEXANDER D ZENGKNOBBE MARTENS OLSON & BEAR LLP2040 MAIN STREET, 14TH FLOORIRVINE, CA 92614UNITED [email protected], [email protected]

Submission Opposition/Response to Motion

Filer's Name Alexander D. Zeng

Filer's email [email protected], [email protected]

Signature /Alexander D. Zeng/

Date 09/23/2019

Attachments 2019-09-23 Opposer_s Opp_n to Applicant_s Motion to Compel - HAN-BEV.8204M.pdf(785037 bytes )2019-09-23 ADZ Declaration ISO Opposer_s Opp_n to Applicant_s Motion toCompel - HANBEV.8204M.pdf(792726 bytes )ADZ Exhibit 01.pdf(913638 bytes )ADZ Exhibit 02.pdf(868761 bytes )

http://estta.uspto.gov

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HANBEV.8204M TRADEMARK



MONSTER ENERGY COMPANY, Opposer, v. CHARLOTTE M. PURIN, Applicant.

)))))))) ) ))

Opposition No.: 91243944 Serial No.: 87/757823 Mark: MUNCHIMONSTER

OPPOSER MONSTER ENERGY COMPANY’S OPPOSITION TO APPLICANT’S MOTION TO COMPEL

Ms. Charlotte M. Purin’s (“Applicant”) Motion to Compel (the “Motion”) Mr. Rodney

Sacks to appear for a deposition is moot. Mr. Sacks’ deposition is currently scheduled for

October 11, 2019. Zeng Decl. ¶ 3, Ex. 1.

Before filing her Motion to Compel, Applicant failed to meet and confer with Opposer as

required by 37 C.F.R. § 2.120(f) and T.B.M.P. § 523.02. Zeng Decl. ¶ 2. Indeed, Applicant’s

Motion lacks any reference to Applicant’s good faith attempt to meet and confer because she did

not even attempt to comply with this requirement. See Dkt. No. 13. If Applicant had complied

with the rules and met and conferred with Opposer, Applicant would have learned that Opposer

intended to make Mr. Sacks available for his deposition on October 11, 2019. Zeng Decl. ¶ 3,

Ex. 1.

Further, contrary to the allegations in Applicant’s Motion, at no point in time did

Opposer refuse to make Mr. Sacks available for deposition or state that such a deposition would

be unduly burdensome or intrusive. Zeng Decl. ¶ 4. After notifying Opposer of her intention to

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take Mr. Sacks’ deposition, Opposer informed Applicant that Opposer was working to find a

mutually convenient date before the close of discovery for Mr. Sacks’ deposition. Id. at ¶ 5, Ex.

2. Mr. Sacks is the CEO of a public company and has a very busy schedule with limited

availability.

Applicant also misstates the standard for the appropriate scope of discovery. Dkt. No. 13

at 2. Contrary to Applicant’s assertion, “[p]arties may obtain discovery regarding any non-

privileged matter that is relevant to any party’s claim or defense and proportional to the needs of

the case, considering the importance of the issues at stake in the action, the amount in

controversy, the parties’ relative access to relevant information, the parties’ resources, the

importance of the discovery in resolving the issues, and whether the burden or expense of the

proposed discovery outweighs its likely benefit.” Fed. R. Civ. P. 26(b); T.B.M.P. § 414.

Applicant’s Motion contains numerous irrelevant and improper accusations relating to

Opposer’s motives in filing this Opposition and prior opposition history. Applicant asserts that

she is entitled to discovery on issues such as Mr. Sack’s “severe lack of discretion,” “intent,

purpose, and [] personal perceptions on being confused,” and “Opposer’s state of mind.” Dkt.

No. 13 at p. 1-3. Additionally, Applicant asserts that she “needs to speak with” Mr. Sacks

regarding “whether the allegations were made in error,” “whether conflicts of interest are

present,” and “to analyze any issues that might shed light on whether the allegations were

bonafide.” Id. at 3. These alleged issues are irrelevant to the determination of a likelihood of

confusion and do not fall within the appropriate scope of discovery.

Applicant’s Motion also contains numerous inaccurate statements regarding the merits of

this Opposition. For example, Applicant’s assertion that the “marks are in different classes” and

the goods “are unrelated” is inaccurate. Dkt. No. 13 at 2. Opposer’s asserted U.S. Trademark

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Registration No. 3,908,601 is for “clothing, namely, t-shirts, hooded shirts and hooded

sweatshirts, sweat shirts, jackets, pants, bandanas, sweat bands and gloves; headgear, namely,

hats and beanies” in International Class 25. Applicant’s U.S. Application Serial No. 87/757,823

is for “t-shirts.” Moreover, the merits of this Opposition are wholly irrelevant to the issue of

whether Mr. Sacks should be compelled to appear for a deposition.

Opposer respectfully requests that the Board deny Applicant’s Motion as moot because

Mr. Sacks is being made available for his deposition on issues relevant to this Opposition on

October 11, 2019. Further, Applicant’s Motion should be denied for failing to comply with the

meet and confer requirement in Fed. R. Civ. P. 37 and T.B.M.P. § 408.01.

Respectfully submitted,

KNOBBE, MARTENS, OLSON & BEAR, LLP

Dated: September 23, 2019 By: /Alexander D. Zeng/ Steven J. Nataupsky Nicole R. Townes Alexander Zeng 2040 Main Street, Fourteenth Floor Irvine, CA 92614 (949) 760-0404 [email protected] Attorneys for Opposer, MONSTER ENERGY COMPANY

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CERTIFICATE OF SERVICE

I hereby certify that a true and complete copy of the foregoing OPPOSER MONSTER

ENERGY COMPANY’S OPPOSITION TO APPLICANT’S MOTION TO COMPEL has

been served on Applicant on September 23, 2019 via electronic mail to:

Charlotte M. Purin

[email protected] [email protected]

Signature:

Name: Doreen P. Buluran

Date: September 23, 2019

31296345

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HANBEV.8204M TRADEMARK



MONSTER ENERGY COMPANY, Opposer, v. CHARLOTTE M. PURIN, Applicant.

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Opposition No.: 91243944 Serial No.: 87/757823 Mark: MUNCHIMONSTER

DECLARATION OF ALEXANDER D. ZENG IN SUPPORT OF OPPOSER MONSTER ENERGY COMPANY’S OPPOSITION TO APPLICANT’S MOTION TO COMPEL

1. I am an attorney licensed to practice in the State of California. I am an associate

with the law firm of Knobbe, Martens, Olson & Bear LLP, counsel for Opposer Monster Energy

Company (“Opposer”) in the above-identified Opposition proceeding. I have personal

knowledge of the facts set forth below. If called upon and sworn as a witness, I could and would

competently testify as set forth below.

2. Applicant did not participate or attempt to participate in a meet and confer prior to

filing her Motion to Compel.

3. Mr. Sacks’ deposition is currently scheduled for October 11, 2019. Attached

hereto as Exhibit 1 is a true and correct copy of email correspondence between Opposer and

Applicant dated September 5, 2019.

4. Opposer did not refuse to make Mr. Sacks available for a deposition or object to

such a deposition as unduly burdensome or intrusive.

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5. Opposer notified Applicant that Opposer was working to find a mutually

convenient date prior to the close of discovery for Mr. Sacks’ deposition. Attached hereto as

Exhibit 2 is a true and correct copy of email correspondence between Opposer and Applicant

dated June 21, 2019.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Dated: September 23, 2019 By: /Alexander D. Zeng/ Alexander D. Zeng

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CERTIFICATE OF SERVICE

I hereby certify that a true and complete copy of the foregoing DECLARATION OF

ALEXANDER D. ZENG IN SUPPORT OF OPPOSER MONSTER ENERGY

COMPANY’S OPPOSITION TO APPLICANT’S MOTION TO COMPEL has been served

on Applicant on September 23, 2019 via electronic mail to:

Charlotte M. Purin

[email protected] [email protected]

Signature:

Name: Doreen P. Buluran

Date: September 23, 2019

31296381

TTAB Opposition No. 91243944 Monster Energy Company v. Charlotte M. Purin

Declaration of Alexander D. Zeng in Support of Opposer’s Opposition to Applicant’s Motion to Compel

EXHIBIT 1

1

Fro : Ale a der.)e g <Ale a der.)e g@k o e. o > Se t: Thursda , Septe er , : PM Su je t: Defi ie Letter MUNCHIMONSTER Our Ref: HANBEV. M

From: Charlotte purin <[email protected]> Date: September 5, 2019 at 7:45:49 PM PDT To: [email protected] Subject: Re: Deficiency Letter (MUNCHIMONSTER) (Our Ref: HANBEV.8204M)

Mr Zeng, 1) I sent you my response to your cease & desist extortion letter, in writing, and Opposer responded by filing an opposition at the TTAB. Now it is Opposer who must send revisions to their original, meritless, baseless, extortive demands. I am excited to see what you offer. Also, after researching and finding out just how guilty Opposer is in terms of major legal abuses, my original ideas to Opposer's terms will need to be revisited in oder to reflect the seriousness of the matter. 2) Schedule Rodney C Sacks for a deposition on the date of 10-11-2019. I am going to call the TTAB to ask them what happens if Opposer is a no-show. 3) Yes, tomorrow is Friday, on that we agree; and Friday is deadline of Opposer Charlotte Purin -----Original Message----- From: Alexander. Zeng <[email protected]> To: Charlotte purin <[email protected]> Cc: MEC. TTAB <[email protected]>; Nicole. Townes <[email protected]> Sent: Thu, Sep 5, 2019 2:39 pm Subject: Re: Deficiency Letter (MUNCHIMONSTER) (Our Ref: HANBEV.8204M)

Charlotte, As you may recall, we sent draft settlement terms for your review on February 20, 2019. Can you please provide us with your proposed edits to these settlement terms (i.e. a redline version)? If certain settlement terms are not acceptable it would be helpful if you could let us know why the term is not acceptable. In regard to your supplemental responses and document production, if we do not receive adequate responses and documents by tomorrow, we will have no choice but to file a motion to compel. Please let us know as soon as possible if you are available for Mr. Sacks’ deposition on October 11th. Otherwise, we are agreeable to a 60 day extension of the deadlines in the proceeding to allow for additional time to schedule the deposition for a mutually convenient date. Thank you, Alexander Zeng Associate

TTAB Opposition No. 91243944

Monster Energy Company v. Charlotte M. Purin

Exhibit 1 Page 1 of 2 Declaration of Alexander D. Zeng in Support of

Opposer’s Opposition to Applicant’s Motion to Compel

2

[email protected] 310-601-1261 Direct Knobbe Martens 1925 Century Park East, Suite 600 Los Angeles, CA 90067 www.knobbe.com/alexander-zeng

From: Charlotte purin <[email protected]> Date: Thursday, September 5, 2019 at 11:58 AM To: Alexander Zeng <[email protected]> Subject: Re: Deficiency Letter (MUNCHIMONSTER) (Our Ref: HANBEV.8204M) Mr Zeng, 1) go ahead and offer me your settlement options in writing. ( you & Menke refused to do so twice prior on the phone, neither of which the calls were at all productive, so let's attempt in writing this round). 2) never said I wasn't sending you supplements. your stated deadline is this Friday, i.e., tomorrow. 3) will check on a venue/time for deposition of mr sacks on 10-11-19. date of 10-11-19 doesn't't leave much time to reschedule if Opposer isn't serious about showing up to be deposed. an earlier date would be better. 4) I will send amended notice when/if I am able to reserve a venue/time on 10-11-19.

-----Original Message----- From: Alexander. Zeng <[email protected]> To: Charlotte purin <[email protected]> Cc: Nicole. Townes <[email protected]>; MEC. TTAB <[email protected]> Sent: Thu, Sep 5, 2019 10:38 am Subject: RE: Deficiency Letter (MUNCHIMONSTER) (Our Ref: HANBEV.8204M)

Charlotte, We disagree with your characterizations that Mr. Menkes yelled at you and your representation that Opposer would not engage in negotiations with you. On the contrary, we would be happy to set up a call to discuss potential settlement of this opposition if you would like. Unless we hear otherwise, we will assume that you do not intend to supplement your discovery responses and document production. Thus, we plan to proceed with filing a motion to compel. Lastly, Mr. Sacks is available on October 11, 2019 for a deposition. Please send us an amended notice of deposition. Thank you, Alexander Zeng Associate [email protected] 310-601-1261 Direct Knobbe Martens 1925 Century Park East, Suite 600 Los Angeles, CA 90067 www.knobbe.com/alexander-zeng





TTAB Opposition No. 91243944 Monster Energy Company v. Charlotte M. Purin

Declaration of Alexander D. Zeng in Support of Opposer’s Opposition to Applicant’s Motion to Compel

EXHIBIT 2

1

Fro : Ale a de .)e g <Ale a de .)e g@k o e. o > Se t: F ida , Ju e , : AM To: Cha lotte pu i < u hipo e @aol. o > C : Ni ole.To es <Ni ole.To es@k o e. o >; MEC.TTAB <MEC.TTAB@k o e. o > Su je t: Depositio S heduli g fo MUNCHIMONSTER Ou Ref: HANBEV. M Cha lotte, We o ki g to s hedule a depositio date fo M . Sa ks. Ho e e , as I a su e ou u de sta d, M . Sa ks is the CEO of a pu li o pa a d has a e us s hedule. He likel does ot ha e a a aila ilit fo a depositio u til August at the ea liest. I light of this, ould ou o se t to a da e te sio of the p o eedi gs so e a o ti ui g o ki g to o tai a depositio date? Also, pe the TBMP ules a d Fede al Rules of Ci il P o edu e, it is ot app op iate to se e a su poe a o a pa t o di e tl o ta t a pa t that is ep ese ted ou sel. A o di gl , please ef ai f o se i g a su poe a o M . Sa ks. Additio all , the e a e se e al defi ie ies i ou espo ses to ou dis o e e uests. We ill e i tou h soo to add ess those defi ie ies. Best, Alexander Zeng Associate [email protected] 310-601-1261 Direct Knobbe Martens 1925 Century Park East, Suite 600 Los Angeles, CA 90067 www.knobbe.com/alexander-zeng Fro : Cha lotte pu i < u hipo e @aol. o > Se t: F ida , Ju e , : AM To: Ale a de .)e g <Ale a de .)e g@k o e. o > Su je t: Re: SUBPOENA FOR UNWILLING WITNESS Mr Zeng, Will you accept service of a subpoena for your client, Mr. Rodney C Sacks, for your client’s deposition? Respond to me in 3 days. Otherwise, I will serve it on your client, Mr. Rodney C Sacks.

Thank you, Charlot te 19+ YEARS Of POSI TIVI TY! www.Munchim onster.com ht tps: / / www.instagram .com / m unchipower/





ESTTA Tracking number: ESTTA1003964 09/23/2019

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