Bobosky Testimony

8/3/2019 Bobosky Testimony

1/28

Willard Bobosky September 7, 2011

Page 163 I1 UNITED STATES DISTRICT COURT2 DISTRICT OF OREGON3 PORTLAND DIVISION45 W. BRAND BOBOSKY and WE NOT6 E, LTD.,7 laintiffs,8 . No. CV1O-630-PK9 ADIDAS AG d/b/a THE ADIDAS

10 ROUP, ADIDAS AMERICA, INC.,11 80LA, LLC, NBA PROPERTIES,12 NC., NBA MEDIA VENTURES, LLC,13 ANNER SEVENTEEN LLC d/b/a THE14 OSTON CELTICS, and KEVIN15 ARNETT,16 efendants.171819 VOLUME II2021 IDEOTAPED DEPOSITION OF WILLARD BRAND BOBOSKY22 aken in behalf of Defendants23 September 7, 20112425

Beovich Walter & FriendExhibit BPage 1 of 28

!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%B0C'%(??6


2/28


Page 1741 . hat does it mean?2 . t means that the applicant, which is the3 orporation, has an intention to use the mark in4 onnection with a particular class, which I5 hink appears later, class 25.6> Q7 ga9 S -

101112 1II d13 elt rga 414 ress15 is pe 116

AC 119

21 . o thii: r oodt>h4 mbrogi22 reated23 . e Jii 1i nd e tanare,2425 1 st


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(CC@


3/28


Page 175 I1 pr ld2 e3:

4 1 app 1Thton?T k-

6 Q. Is it your understanding this is the entirety of7 class 25?8 A. I dont know. heres an awful lot of items9 there.

10 Q. And towards the bottom of the page theres a, n11 the center a declaration heading. o you see12 hat?13 . es.14 . nd Mr. Ambrogi, as your attorney, signed the15 eclaration stating "The undersigned, being16 ereby warned that willful false statements and17 he like so made are punishable by fine or18 mprisonment or both under 18 Usc section 100119 nd that such willful false statements and the20 ike may jeopardize the validity of the21 pplication or any resulting registration,22 eclares that he/she is properly authorized to23 xecute this application on behalf of the24 pplicant; he/she believes the applicant to be25 he owner of the trademark/service mark sought


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(CC-


4/28


Page 185IQ ,, ndst t tahW y

nevjust come J !h:e rn them

he d %yr e ut a number of8 hem, again, my understanding was that I am now9 uthorized within that class to affix my

10 rademark to items therein.11 . ut at no time, either prior to January 3rd,12 006, or after 2000, January 3rd, 2006, have you13 anufactured or sold the vast majority of the14 tems that are listed here in class 25; correct?15 . ell, the, I dont know what you mean by vast16 ajority.17 . e can do, we can do --18 . have done, I have done shirts and some other19 tems. Again, I was never under the impression20 hat I had to do anything further than hats.

a.ap1eeconds wi espeo22 hese good w2 the ho24 1 oweQ qtsZ5 IE


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(CCD


5/28


Page 186 I1 mean, he2 classify d :. e entthings and, :iiean.that s,3 that4 s tars I, oil icu5 Q. But this specific list of class 25 goods,6 including rugby shirts misspelled, ts not your7 understanding that the trademark office put this8 list in your application, s it?9 A. Well, , dont know. aybe theres 50 items

10 or so to choose from and maybe Mr. Ambrogi11 selected them, r 25 or 15 or whatever it is.12 I, gain, dont know where any of this came13 from. just proceeded to have him do the14 filings and the selections.15 (Exhibit 87 marked for identification.)16 Q. BY MR. RIEDLAND: ets look at what Ive17 marked as Exhibit 87, hich is a five-page18 document bearing adidas production numbers 44919 through 453. re you familiar with this20 document?21 A. I dont know. h, his... h, his is entitled22 the service mark statement of use.23 Q. So, nd if you look at the second page, heres24 a, think youre on the third page. heres a25 block that says signature, ignature section.


II

!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(CCC


6/28


Page 1871 o you see that?2 . es.3 . And underneath Mr. Ambrogis name is the date4 April 3rd, 006. o you see that?5 . Yes.6 . Which is roughly or exactly actually three7 months after the date of the notice of allowance8 that was --9 . Yes.

10 . -- Exhibit 86? nd does that refresh your11 recollection as to whether or not this12 particular application required extensions of13 time?14 . Yes, t does. nd obviously three months later15 we did not go to any extensions of time for the16 reasons that I gave you briefly.

And 19Q Mtunde ds

19 the bottom; vj20 for goods and/, ces it21 listed hat?

Yes. Ic24 u1 e d25 in Exhibit

Beovich W alter & FriendExhibit BPage 6 of 28

!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(CC;


7/28


Page 1881 are what enddi..be included on the2 1 is erla4 1 i56 it7 Mr. gr8 . kay. And right underneath where it says "keep9 ll listed" it shows first use anywhere date and

10 irst use in commerce date both as October of11 004. Do you see that?12 . es.13 . nd on the next page it lists a specimen file14 ame because Mr. Ambrogi would have uploaded the15 mage that is the last page of this exhibit.16 nd I think thats just the link to this

F 17 articular picture and the specimen description18 tates product labeling. Do you see that?19 . es.20 . ooking at the next page of this document, which21 s the typewritten form of the statement of use,22 he third paragraph that starts for23 nternational class 25, do you see that?24 . es.25 . The applicant, which is We Not Me, or the


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(C;)


8/28


Page 189 I1 pplicants related company or licensee," and at2 hat time you had no licensees or related3 companies; orrect?4 A. Correct.5 Q. "Is using the mark jn ommer Ji6 connectin 1 %ted78 APIN9A d

11 A. It is certainly not correct.12 Q. And the next paragraph goes on to state, The13 mark was first used by the applicant or the14 applicants related company, icensee or15 predecessor in interest," and none of those16 existed other than your company at that time;17 orrect?18 . orrect.19 . At least as early as October," it says20 10/00/2004 and was first used in commerce at21 east as early as that same date, 10-00-2004,22 nd is now in use in such commerce." Do you see23 hat?24 . ell, again, theyre talking about the mark was25 irst used. It doesnt say on every item. I


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(C;(


9/28


Page 1931 say this, was well aware of the extensions.2 There was no point in me rushing to, o file a3 statement of use three months after Im awarded4 the registration. could have stretched that5 out for three years, nd I would have had I6 known that this is, his is the requirement.7 Q. But Mr. Ambrogimfiled onApril 3it006,8 statement governmen1fht9 s ea n

10111114 Q. And you knew that?15 A. I didnt know it was a false statement.16 Q. You knew that your company was not using --17 A. We never discussed that part of it. e filed18 the statement. e procured the trademark. e,19 he signed everything. e did it all. have20 conversations with him. have to rely on21 counsel that I pick and pay.22 Q. So its your testimony that he made this false23 statement without your knowledge?24 A. Yes. nd Im not so certain that he knew it was25 false. hats an assumption.


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(C;=


10/28


Page 194Y1 se?ZE A.3 . nd ii. was and;4 orrect?

Yes.6 . nd it was your understanding that once the7 tatement of use was filed and you submitted the8 ats, that the trademark would issue and it9 ould cover you for all the other goods you

10 isted in class 25 because you had shown use on11 he hats?12 hat was my understanding per Ambrogis advice.13 nd it was your understanding that by submitting14 he statement of use to the trademark office, it15 s what the trademark office would rely upon in16 eciding whether or not to give you a trademark17 egistration; correct?18 A, , I dont know what their procedures are. I19 ean, it was a requirement. We submitted it and20 t issued. Why and how they do it, I, I have no21 lue.22 . ust so the record is clear, as of April 3rd,23 006, when Mr. Ambrogi filed the statement of24 se, you were not using We Not Me on25 weatshirts, sweatpants, shirts, tank tops,


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%B0C'%(D;&


11/28


Page 1971 nd use in commerce?2 . es.3 . nd at the time that registration issued on4 uly 18, 2006, you, in fact, were not using We5 ot Me in connection with any of the goods6 isted on this registration except for arguably7 ats and caps; correct?8 . orrect.9I D 1 0 thYei

10 11k Yes.

Why?eco h"i# what

mE WtJ 1W11I W

1" 7 of18 notified19 Ms,,,* Backman20 ttf23 A N W M E M O M24Q. SS meffd4d%Vp ema25 Ms. Backman and adidas put notiMt


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%B0C'%(?;6


12/28


Page 19812 fraud3 We1 t4 discussior do a5 and the 1167 . So you placed adidas on notice. art of adidas8 response was to tell you that it felt you had9 perpetrated a fraud on the trademark office, s

10 a result of which you entered into discussions11 with your attorney, hich Im not going to ask12 you about, and subsequently you amended your13 registration. o I have that timeline generally14 correct?15 . ou, you have that correct, but Mr. Ambrogi was16 ery reluctant to, to file the amendment because17 --18 MR. RINNON: Objection, ot responsive to19 the question asked.20 Q. BY MR. FRIEDLAND: You can answer the question.21 A. Well --22 Q. I dont want you to tell me what Mr. -- at this23 point --24 A. Okay. ll right. Yes. pon advice of counsel,25 upon advice of counsel I did amend the


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(C;@


13/28

1

2 .3 .4567

89

101112131415 .16 .171819202122 .23 .2425 .


Page 200familiar with this document?I am.And the last page of this exhibit, bearingnumber 441, thats your signature under thedeclaration; correct?Thats my signature and its the only time Iever signed anything before the trademarkoffice.And is this the amendment to your registrationfor We Not Me, which is Exhibit 89 that we werejust discussing, that you authorized Mr. Ambrogito file after adidas placed you on notice thatit thought you had perpetrated a fraud upon thetrademark office?Yes.And in thismiddle" , page

IdoAnd was that amendment made withdurauthorization to Mr. Ambrogis office?It was.


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(C;-


14/28


Page 20124 - ods56 . And wher:.c: nIP8 s t r 1 s e

1213 wo r d

d unce:.aI4iflg15161.7 QUM :1819 c20 s g h I21 came out to be tfi nce som .t22 to my23 state24 fa 125 f


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(C;D


15/28


Page 202

2 correct

3 .4 556

8 e x P s9 b j

10 .1 NAM

A ffloffi

14W

16 c knowle d17 004 but the tt1819 uestfl.20 . ins; correct?21 . ardon?22 . ins?23 . ins and key chains.24 . kay.25 Exhibit 91 marked for identification.)


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(C;C


16/28


Page 208 I1 A. Mr. Ambrogi did it.2 Q. Why did you file a second application?3 A. Well, because I wanted to continue to protect my4 mark. nd it was, ince it had been amended to5 just hats, wanted to go further than that.6 Q. How did you want to go further?7 A. Well, rotect myself in other areas.8 Q. Such as?9 A. Clothing and footwear.

LU Q NIIiWej en

12 my thakd Tknowwhere they! r t13 leas hought I knew where theyd be going.14 This and I subsequently15 p16 Q. So you include clothing and footwear to cover17 areas that you thought adidas might want to18 over?19 . r somebody else.20 . ut at that time there was no somebody else, was21 here?22 . ow do I know whos out there? There turned out23 o be a lot of people that came aboard the We24 ot Me bandwagon.25 . n March of 2008 you were several months into


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(C;;


17/28


Page 2091 making allegations that adidas had violated your2 ights; correct?3 . everal months into it, yes.4 . kay. So, and adidas is a well-known apparel5 nd footwear company?6 . hat they are. Doesnt give them the right to7 teal my mark.8 . his application was also filed by Mr. Ambrogi9 n the basis of your companys bona fide

10 ntention to use the mark in commerce; correct?11 . orrect.12 hat were your plans with respect to using We13 ot Me in connection with footwear as of14 arch 19, 2008?15 . o apply the trademark to all levels of16 lothing, from top to bottom, hats, to clothes17 n the body, to their feet that they walk in.18 . y question was directed to footwear, what were19 our plans?20 . hat was part of it.21 . nd what --22 . ootwear was top to bottom. Footwear was the23 ottom part.24 . nd what specific pans had you put into motion25


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;))


18/28


Page 21011W2 t

3 wt4 . What effor a ade a aci. 008,5 to creaeWe N e!fobtwea roduct?6 P1an7II8 2j001 1 SaI:I Iie

1112 (Exhibit 93 marked for identification.)13 . Y MR. FRIEDLAND: Handing you Exhibit 93 which14 ears adidas production numbers 533 and 534, it15 s the next document in the file history of the16 econd We Not Me trademark registration. Do you17 ecall the trademark office issuing an office18 ction and seeking a more definite19 dentification of the goods you were seeking to20 egister?21 . dont remember this. This, again, was handled22 y Mr. Ambrogi.23 Exhibit 94 marked for identification.)24 . Y MR. FRIEDLAND: Exhibit 94, Bates production25 umbers 530 to 532 from adidas, its entitled


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;)(


19/28


Page 2131 . nd--2 . ou know, they dont just hand these things to3 ou. You pay your lawyer to get it for you.4 ou pay the filing fees.5 R. DRINNON: Brand, is there a question6 ending?7 HE WITNESS: No.8 R. DRINNON: I object to you answering when9 theres not a question pending.

1 BYeowi fl1213

15 regardto produci eephone16 ca ii1718

21 proposals relat22 . The reason is Ididnreceive any.23 . You have to1etirifinish my question.24 -- rl 4o q1hingpfootwear fr25 about Mar O O8 aed this


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;)=


20/28


121314151617

Page 214S -Yes.

(Exhibit 96 marked for identification.)BY MR. FRIEDLAND: Handing you Exhibit 96, whichis the next document in the file history of thisparticular trademark, bearing production numbersfrom adidas 509 to 512. Were you aware thatMr. Ambrogi filed an extension of time to file astatement of use on your behalf in connectionwith this particular trademark application?I think so. Trying to see the date on it.Wheres the date?On the second page right below his name,October 29, 2009.

A. es, I am.

1

3L4 .56 .7

.11011

18 MR. FRIEDLAND: Faked you out there.19 MR. DRINNON: Yeah, you did.20 (Exhibit 97 marked for identification.)21 . Y MR. FRIEDLAND: Handing you Exhibit 97, which22 is a, the next document in the file history of23 the registry for trademark bearing adidas24 production numbers 495 through 507 and entitled25 trademark/service mark statement of use. Are


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%B0C'%(;)&


21/28


Page 218 I1 of the web page, he one on the right, s that a2 representation of the shirts?3 A. It would appear to be.4 Q. Okay. nd then if we jump ahead to page 506 and5 507, re those additional pages that focus on6 the shirts themselves?7 A. 506 does, es, nd 507, oo.

sentatIo-.1"14 A. Thats corret.15 Q. Okay. nd yesterday you and your counsel16 provided us several samples. m going to show17 you -- And Im going to call it off-white. ou18 may have a more official color for it -- an19 off-white color version for the shirt --20 A. I think its sand.21 Q. -- sand version of the shirt. nd can you22 confirm for me that, n fact, he shirt, which23 Im going to identify as the next number in our24 sequence, 8, s an actual version of the shirts25 that are shown on the web pages that we were


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%B0C'%(;)6


22/28


Page 2191 discussing?2 A. I believe it is.3 Q. And this shirt, ike the ones in the photos, as4 the words We Not Me on the left sleeve?5 A. Has it on the left sleeve and, es, nd I would6 say it also says it via the symbol.

rect1 Th a t I s correct.11 Q. And thats a third party that manufactured the12 shirt as a blank; orrect?13 A. I, dont know. had them purchased through,14 I wish I could remember the name of that15 company. ts not Minuteman. ts the other16 company.17 Q. Players Choice?18 A. That would be it. es.19 Q. The T-shirt that is Exhibit 98 is, ave you20 sold, ther than different color T-shirts, ave21 you sold different versions or designs of a We22 Not Me T-shirt?23 . No. he T-shirts that were sold though do24 contain that tag line as well. ou were talking25 about identification of whats on it and who


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;)@


23/28


Page 220 I1 supplied it. he tag line that is there as2 well.3 Q. By tag line, re you referring to what Im going4 to hand you and Im going to mark it as 99 as5 soon as we talk about it and figure out how I6 can mark it. hat is Exhibit 99?7 A. This is affixed to the clothes, he hat, he8 flip flops and the shirts identifying, urther9 identifying the source of the goods as, xcuse

10 me, ust to complete, he source of the goods11 being We Not Me, imited.12 Q. Who printed these for you?13 A. I believe Minuteman Press did.14 Q. And would I find among the various Minuteman15 Press invoices youve given me in this case in16 discovery an invoice reflecting the printing of17 hese?18 . dont know. I had several drafts done and19 ve had a relationship with that company for20 5 years and something as small as this Im not21 ertain if they would have even billed me or if22 hey would have put, added whatever it was to23 nother bill. I just dont know.

p r iji d?2


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;)-


24/28


Page 2211 hich goods?2 These, thes msthat are on he, web... i cago4

be e to

11.he f M s i s e?1t,11?1. e hats wer bte1verybo6 ,

20 . ut the tag that youre holding in your hand as21 xhibit 99 was not affixed to the hats prior to22 ay of 07 when you moved to the 34 West Chicago23 venue; correct?24 . hats correct.25 . ow are, what do you call these cards that are

Beovich Wafter & FriendExhibit BPage 24 of 28

!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;)C


25/28


Page 2221 xhibit 99?2 . angtags.3 . ow are they affixed to the various products?4 . heyre attached. My secretary would do it.5 nd this is, and Im not certain how she would6 ffix them and, and then cause them to be mailed7 ut if they were a web purchase.8 . o the two web purchasers we saw documents about9 esterday, Gabe Martin and Rachel Knox, they

10 ould have received these products with these11 angtags affixed to them?12 . hats what I believe. Thats my, that would13 e, would have been my instructions to them.14 hink that they certainly did have the tag with15 hem.16 . o you know that for a fact?17 . m almost positive because I think I was there18 hen I was giving instructions.

You testified yesterday that other than 1eM20 heinernet there were,WqXXbus aiei; think21 :1 d ontt ?c.S tive y2f I 1t e2 qt.


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;)C


26/28


Page 2231 nc1ude these hangtags?23 the..... 92I89 a

1

14 ou15 . an you take a look at Exhibit 38 a second,16 hich is your updated expense list.17 . re you finished with these?18 . or the moment I am. Yes, sir.19 . es.20 R. FRIEDLAND: Stephen, I am doing this for21 ow. Is that okay?22 R. DRINNON: Sure.23 MR. RIEDLAND: Since we have multiples of24 this, hat Im going do is put it on a piece of25 aper with both sides, that way well know. And


!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;);


27/28


Page 2271 . es. I?

i] t34 e syboI ritten top

ofbp.6 tbrj

8ANIV

10

ops13

i: $fr tJfgggV

1 viaNO

20 And nowhere e1 hat producb n theackg j6 1Ththe words or t ymbol

if p 1YW? rin

2W,25 . ther than the size label?

Beovich Walter & Friend Exhibit BPage 27 of 28

!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;()


28/28

Willard Bobosky September 7, 2011Page 289

CERTIFICATE2

3 I, Aleshia K. Maeom, SR No. 4-0296, o4 hereby certify that WILLARD BRAND BOBOSKYS personally appeared before me at the time and6 place mentioned in the caption herein; that the7 witness was by me first duly sworn on oath, and8 examined upon oral interrogatories propounded by9 counsel; that said examination, together with

10 the testimony of said witness, was taken down by11 me in stenotype and thereafter reduced to12 typewriting; and that the foregoing transcript,13 Pages 163 to 288, both inclusive, onstitutes a14 full, true and accurate record of said15 examination of and testimony given by said16 witness, and of all other proceedings had during17 the taking of said deposition, and of the whole18 thereof, to the best of my ability.19 Witness my hand at Portland, Oregon, this20 13th d eptember, 2011.

OregonCSM23 leshia K. Macam24 CSR No 94-029625

.Beovich Walter & Friend

!"#$%&'()*+,*))-&)*./%%%%01+23$45%(6(*(%%%%789$:%);$%A0B'%(;((

Documents

Bobosky Testimony